Livestreaming police stop constitutionally protected

Afederal court declared a town’s ban on livestreaming certain interactions may not survive First Amendment scrutiny, and that a plaintiff who was barred from livestreaming an interaction due to the policy “plausibly alleged” a constitutional violation.

“Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental interests to survive First Amendment scrutiny,” Judge Julius N. Richardson of the 4th U.S. Circuit Court of Appeals wrote.

The court further found that because the law was unclear at the time of the traffic stop in question, the officer’s actions were protected by qualified immunity, affirming the decision of the lower court.

Richardson authored the opinion in Sharpe v. Winterville Police Department (VLW 023-2-032) and was joined by U.S. District Judge Michael S. Nachmanoff from the Eastern District of Virginia, who sat by designation on the case.

Fourth Circuit Judge Paul V. Niemeyer authored an eight-page concurring opinion, noting that the majority opinion “hardly acknowledges the role of the Fourth Amendment in the relevant analysis and the relationship of the Fourth Amendment to other constitutionally protected rights.”

Background

Shortly after the vehicle he was in was pulled over, Dijon Sharpe started streaming to Facebook Live, a livestreaming video platform. Upon noticing this, Myers Helms of the Winterville Police Department in North Carolina attempted to take Sharpe’s phone, “reaching through Sharpe’s open car window.”

Helms and his partner informed Sharpe that he was allowed to record the stop but could not stream to Facebook Live because of concerns surrounding officer safety. The officers further stated that Sharpe could be arrested or have his phone taken away if he livestreamed a future encounter with police.

Sharpe sued the officers in their official capacities, “effectively suing the Town of Winterville,” alleging the policy prohibiting livestreaming police encounters violates the First Amendment of the U.S. Constitution. Sharpe further sued Helms in his individual capacity.

At trial, the district court found the policy did not violate the First Amendment and awarded the defendants judgment on the pleadings. The court further found the suit against Helms in his individual capacity was barred by qualified immunity.

First Amendment claim

Richardson said Sharpe plausibly alleged the town of Winterville has a policy barring livestreaming of traffic stops, a policy which he stated “reaches protected speech.”

“[T]o survive First Amendment scrutiny, the Town needs to justify the alleged policy by proving it is tailored to weighty enough interests. The Town has not yet met that burden,” the judge wrote.

Richardson noted that for Sharpe’s claim to survive, he only needs to plausibly allege that the policy preventing livestreaming exists and that the policy violates the First Amendment. The mere facts of the case, including that the officers attempted to seize his phone upon learning Sharpe was livestreaming, were sufficient to meet the first prong, the judge explained.

As to the second point, “creating and disseminating information is protected speech under the First Amendment,” Richardson pointed out.

“[O]ther courts have routinely recognized these principles extend the First Amendment to recording — particularly when the information involves matters of public interest like police encounters,” he wrote. The judge said recording police encounters contributes to discus - sions on government affairs, with livestreaming being one way to disseminate that information.

The town of Winterville claimed that livestreaming a traffic stop “endangers officers because viewers can locate the officers and intervene in the encounter,” and represents a “weighty enough interest” to justify the policy.

But Richardson said that, at this stage, the court “cannot yet tell” if the interest is enough to sustain the policy.

“[E]ven though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw,” he wrote.

Qualified immunity

After determining the first claim survived, Richardson turned to the individual-capacity claim against Helms, which the lower court barred due to qualified immunity.

Richardson agreed with that holding from the lower court.

“Qualified immunity protects Officer Helms unless it was clearly established at the time of the traffic stop that forbidding a passenger from livestreaming their own traffic stop violated the First Amendment. Here, no precedent in this Circuit nor consensus of authority from the other Circuits established that Officer Helms’s actions were unconstitutional,” he wrote.

After making that determination, Richardson vacated the lower court ruling on the official-capacity claim, affirmed the ruling on the individual-capacity claim and remanded the case for further proceedings.

Concurring opinion

Niemeyer agreed that the officer was entitled to qualified immunity.

However, he noted that the issues here arise “in the context of a lawful Fourth Amendment seizure – a traffic stop.”

During this stop, Sharpe refused to obey police orders to stop using his cell phone to communicate with others.

The judge explained that the restriction on using a cell-phone “was thus an aspect of the seizure.” As the Fourth Amendment regulates the legality of that restriction, officers, when conducting traffic stops, “may intrude on the liberty interests of those who have been stopped” as long as it is reasonable.

“The issue therefore should be restated, I submit, to whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others,” Niemeyer wrote. “This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion …. While the two analyses might, but need not, lead to the same conclusion, I believe that we should apply the reasonableness test of the Fourth Amendment because the restrictions about which the plaintiff complains were imposed as a part of a lawful Fourth Amendment seizure.”

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Administrative

Dock Permit – Consent Order –Contempt & Attorneys’ Fees

When the appellant-agency granted a permit for respondent Hook’s neighbor to build a dock in 2014, the agency failed to abide by a 2005 consent order, which would have required the neighbor to build a 500-foot dock straight into the water instead of a 200-foot dock in front of Hook’s property. However, in order to hold the agency in contempt, the Administrative Law Court would have needed evidence that some agency employee acted purposefully in disregarding the consent order. There was no such evidence, so we cannot uphold the ALC’s decision to hold the agency in contempt.

We reverse the contempt holding. Since the ALC’s award of costs and attorneys’ fees to the landowners was premised on the contempt holding, we reverse that award, too. Hook asserts because the agency should be charged with knowing it agreed to the consent order, any violation of that order should be found to be willful. We cannot agree with this position in a contempt matter because willfulness is a crucial element. Hook does not provide us, nor could we find, any South Carolina case providing that an entire agency is charged with knowledge of an employee’s actions for purposes of willfulness in a contempt finding as he asserts. Therefore, the ALC erred in finding the agency’s behavior was willful and thus holding it in contempt.

Hook v. South Carolina Department of Health & Environmental Control (Lawyers Weekly No. 011-018-23, 23 pp.) (Aphrodite Konduros, J.) Appealed from the Administrative Law Court (Phillip Lenski, ALJ) Bradley David Churdar for appellant; Mary Duncan Shahid and Angelica Colwell for respondent; Phillip Patterson, pro se. S.C. App.

Arbitration

Nursing Home Admission Contract –Power of Attorney – Sanction

Even if the date on the nursing home admission contract is incorrect, it is not material. Since plaintiff had her brother’s general power of attorney and since plaintiff does not dispute that she signed the contract, the contract’s arbitration provision – which had an opt-out box that was not checked – is binding.

We reverse the circuit court’s denial of defendants’ motion to compel arbitration; remanded.

Plaintiff alleges that defendants’ negligence led to her brother’s death. The brother’s power of attorney gave plaintiff the power “[t]o do and perform all and every act, deed, matter, and thing whatsoever; in and about my estate, property and affairs as fully and effectually to all intents and purposes as I might or could do in my own proper person, if personally present.” This broad language is unambiguous, and it allowed plaintiff to bind her brother to arbitration.

Plaintiff did not deny she signed the nursing home’s admission agreement, and she did not check the opt-out box of the arbitration provision from the admission agreement. Therefore, the accuracy of the date next to the signatures on the admission agreement is immaterial to whether plaintiff formed an agreement with the nursing home. Plaintiff’s signature demonstrates she understood the contents of the admission agreement, and the absence of a mark in the arbitration provision’s optout box demonstrates she assented to be bound by it.

Nothing in the language of the arbitration provision demonstrates lack of mutuality. Each party agreed in the arbitration provision to arbitrate claims, which is adequate consideration.

We hold the arbitration provision in the admission agreement is enforceable.

To the extent the circuit court denied the nursing home’s motion to compel as a sanction under Rule 11, SCRCP, this was error. In the circuit court’s Form 4 order denying the motion to compel arbitration in this case, the court did not recite any reason the nursing home or its attorney should be sanctioned. Accordingly, we find Rule 11 was not the basis of the motion’s denial, nor would a denial of the motion have been an appropriate sanction if it was found the nursing home or its attorney had violated Rule 11.

Reversed and remanded.

Hackworth v. Bayview Manor, LLC (Lawyers Weekly No. 012-011-23, 8 pp.) (Per Curiam) Appealed from Beaufort County Circuit Court (Edgar Dickson, J.) Todd Darwin and Walker Barnes for appellants; Kenneth Luke Connor, Christopher Caleb Connor, Anne

Katharine Moore and Allen Keith McAlister for respondent. S.C. App. Unpub.

Attorneys

Discipline – Definite Suspension –Failure to File or Pay Taxes

While the respondent-attorney was caring for his aging parents – one of whom was suffering deteriorating physical and mental health as her Alzheimer’s disease progressed – he became addicted to alcohol. During this several-year period, respondent failed to file or pay state income taxes. After being charged with four misdemeanors as a result of his failure to file, respondent filed and paid the taxes, pled guilty to one misdemeanor, successfully completed all conditions of his sentence, went to rehab, got sober, and became a mentor to others in recovery. Although we are sympathetic to respondent’s personal difficulties, we find a definite suspension is warranted.

We suspend respondent from the practice of law in this state for a period of 90 days. Respondent shall pay the costs incurred in this matter.

In re Williams (Lawyers Weekly No. 010-017-23, 3 pp.) (Per Curiam) Kelly Arnold and Jeffrey Silverberg for the Office of Disciplinary Counsel; Peter Demos Protopapas and George Michael Pappas for respondent. S.C. S. Ct. Attorneys

Discipline – Disbarment –Misappropriated Funds

The respondent-attorney admits that he (1) misappropriated client funds, (2) failed to hold unearned fees in trust, (3) failed to refund unearned fees, (4) failed to make promised payments to the trustee of a bankrupt client, (5) failed to adequately communicate with clients, (6) failed to diligently pursue client matters, and (7) failed to timely respond to notices of investigation. This court has never regarded financial misconduct lightly, particularly when such misconduct concerns expenditure of client

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