Docket No. 16-648 IN THE SUPREME COURT OF THE UNITED...
Transcript of Docket No. 16-648 IN THE SUPREME COURT OF THE UNITED...
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Docket No. 16-648
IN THE
SUPREME COURT OF THE UNITED STATES
Harry Piper,
Petitioner
V.
Luna Lockwood
Respondents
ON WRIT OF CERTIORARI TO
THE SUPREME COURT
BRIEF FOR PETITIONER
Counsel for Respondent
January 9, 2017
QUESTIONS PRESENTED
1. Whether a court, in determining the reasonableness of a use of force by an officer during an
arrest, should consider only the facts and circumstances at the moment of the use of force or
should instead also consider the relevant facts and circumstances leading up to the moment of the
use of force.
2. Whether individuals, including those with no formal affiliation to the press, have a First
Amendment right to record police officers acting in public.
TABLE OF CONTENTS QUESTIONS PRESENTED TABLE OF CONTENTS. TABLE OF AUTHORITIES OPINIONS BELOW…………………………………………………………………………………………..1 CONSTITUTIONAL AND STATUTORY PROVISIONS..……………………………………1 STATEMENT OF THE CASE…………………………………………………………………..2 SUMMARY OF The ARGUMENT……………………………………………………………..5 A. Officer Piper’s use of force was unreasonable under the totality of circumstances analysis required by the Fourth Amendment’s objective reasonableness standard………………………5 B. There is a First Amendment right to record the public conduct of police officers, which Craven Gen. Stat. Section 15A-287 impermissibly restricts…………………………………….6 ARGUMENT I. THIS COURT SHOULD AFFIRM THE THIRTEENTH CIRCUIT’S DECISION BECAUSE OFFICER PIPER’S USE OF FORCE WAS UNREASONABLE UNDER THE TOTALITY OF CIRCUMSTANCES ANALYSIS REQUIRED BY THE FOURTH AMENDMENT’S OBJECTIVE REASONABLENESS STANDARD………………………………………………8
A. Violations of the Fourth Amendment’s protection against unreasonable seizures by excessive force must be analyzed in the totality of circumstances, which requires consideration of all facts and circumstances relevant to the use of force…………………9
1. This Court’s articulation of the objective reasonableness standard in excessive force cases requires consideration of the totality of circumstances surrounding the use of force………………………………………………………………………...9 2. This Court should adopt the approach followed by the majority of federal circuits, which utilize a broad version of the totality of the circumstances test which considers all relevant facts and circumstances surrounding a use of force, including those facts and circumstances that may have occurred prior to the use of force……………………………………………………………………………...10 3. This Court should reject the approach followed by the minority of federal circuits, which consider only those facts and circumstances existing at the moment of the use of force………………………………………………………16
B. Officer Piper’s conduct failed the reasonableness test and constituted excessive for under any interpretation of the totality of the circumstances balancing test this court applies……………………………………………………………………………………19
1. Officer Piper’s conduct failed the reasonableness test when considering relevant facts and circumstances leading up to the moment of the use of force…19 2. Officer Piper’s conduct would still fail the reasonableness test even if this court only considered the facts and circumstances at the moment of the use of force...23
a. Officer Piper acted unreasonably because the facts and circumstances at the moment of the use began when he committed the independent Fourth Amendment violation…………………………………………………….23 b. Even if the facts and circumstances in the moment of the use of force precluded the independent Fourth Amendment violation, Officer Piper still acted unreasonably……………………………………………………….24
II. THIS COURT SHOULD AFFIRM THE THIRTEENTH CIRCUIT’S DECISION BECAUSE PRIVATE CITIZENS HAVE A FIRST AMENDMENT RIGHT TO RECORD PUBLIC POLICE CONDUCT WHICH CRAVEN GEN. STAT. SECTION 15A-287 IMPERMISSIBLY RESTRICTS……………………………………………………………………………………25
A. The First Amendment’s protection of the right to gather news encompasses the right of private individuals to make audiovisual records of matters of public interest, which includes the conduct of government officials, such as police officers, during the performance of their duties in public………………………………………………….25
1. The First Amendment protects the right of both the press and the general public to gather news…………………………………………………………………25 2. The right to gather news includes the right to gather information about the affairs of government and matters of public concern, even though the information may not itself be newsworthy…………………………………………………27 3. The First Amendment protects the right to gather information about governmental activity particularly if the information relates to governmental abuses or misconduct………………………………………………………….28 4. The right to gather information about government activity includes the right to create an audiovisual recording of the public conduct of government officials, including the duties of police officers performed in public……………………29
a. The weight of circuit and district court opinions favor finding that the First Amendment protects the right to record police officers performing their official duties in public places. b. A minority of Circuits have refused to recognize the First Amendment right to record police conduct in some contexts.
B. The government may, subject to intermediate scrutiny, impose content-neutral restrictions on the First Amendment right to record the public conduct of police officers during the performance of their duties. C. Craven Gen. Stat. Section 15A-287 is an unconstitutional restriction on the First Amendment right to record police officers performing their duties in public because it fails intermediate scrutiny.
CONCLUSION
TABLE OF AUTHORITIES Supreme Court Cases: Bartnicki v. Vopper, 532 U.S. 514 (2001). Bad Elk v. United States, 177 U.S. 529 (1900). Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989). Branzburg v. Hayes, 408 U.S. 665 (1972). Brower v. Inyo, 489 U.S. 593 (1989). City of Houston v. Hill, 482 U.S. 451 (1987). Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978). Gentile v. State Bar of Nev., 501 U.S. 1030 (1991). Graham v. O’Connor 490 U.S. 386 (1989). Hague v. CIO, 307 U.S. 496 (1939). Houchins v. KQED, Inc., 438 U.S. 1 (1978). Katz v. United States, 389 U.S. 347 (1967). Kentucky v. King, 563 U.S. 452, 461 (2011). Mills v. Alabama, 384 U.S. 214 (1966). Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976). New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Payton v. New York, 445 U.S. 573 (1980). Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983). Kentucky v. King, 563 U.S. 452, 461 (2011). R.A.V. v. St. Paul, 505 U.S. 377 (1992). Sheppard v. Maxwell, 384 U.S. 333 (1966). Stanley v. Georgia, 394 U.S. 557(1969). Tennessee v. Garner, 471 U.S. 1 (1985). Terry v. Ohio, 392 U.S. 1 (1968) Thornhill v. Alabama, 310 U.S. 88 (1940). Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994). United States v. O’Brien, 391 U.S. 367 (1968). United States v. Place, 462 U.S. 696 (1983). Ward v. Rock Against Racism, 491 U.S. 781 (1989). Federal Circuit Court Cases: Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999). Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012). Alexander v. City & Cty. of San Francisco, 29 F.3d 1355 (9th Cir. 1994). Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997). Bella v. Chamberlain, 24 F.3d 1251 (10th Cir. 1994). Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002). Bletz v. Gribble, 641 F.3d 743 (6th Cir. 2011). Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010). Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994). Claybrook v. Birchwell, 274 F.3d 1098 (6th Cir. 2001). Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993). Deering v. Reich, 183 F.3d 645 (7th Cir. 1999).
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir.1995). Espinosa v. City of San Francisco, 598 F.3d 528 (9th Cir. 2010). Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993). Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir. 1992). Gericke v. Begin, 753 F.3d 1 (1st Cir. 2014). Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005). Glenn v. Washington Cty., 673 F.3d 864 (9th Cir. 2011). Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991). Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995). Jackson v. City of Bremerton, 268 F.3d 646 (9th Cir. 2001). Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973). Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010). Livermore ex rel Rohm v. Lubelan, 476 F.3d 397 (6th Cir. 2007). Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011). Romero v. Board of Cty. Comm’rs, 60 F.3d 702 (10th Cir. 1995). Rowland v. Perry, 41 F.3d 167 (4th Cir. 1994). Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996). Schulz v. Long, 44 F.3d 643 (8th Cir. 1995). Sevier v. City of Lawrence, 60 F.3d 695 (10th Cir. 1995). Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000). Smith v. Ray, 781 F.3d 95 (4th Cir. 2015). Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009) (per curiam). Thompson v. Mercer, 762 F.3d 433 (5th Cir. 2014). Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005)
Federal District Court Cases: Barich v. City of Cotati, No. 15-cv-00350, 2015 WL 6157488 (N.D. Cal. Oct. 20, 2015). Basler v. Barron, No. H-15-2254, 2016 WL 1672573 (S.D. Tex. Apr. 27, 2016). Buehler v. City of Austin, No. A-13-CV-1100-ML, 2015 WL 737031 (W.D. Tex. Feb. 20, 2015). Crago v. Leonard, Case No. 13-cv-00531, 2014 WL 3849954 (E.D. Cal. Aug. 5, 2014). Crawford v. Geiger, 131 F. Supp. 3d 703 (N.D. Ohio Sept. 22, 2015), aff’d in part, rev’d in part by Crawford v. Geiger, 656 Fed. App’x 190 (6th Cir. 2016). Diaz v. Salazar, 924 F. Supp. 1088 (D.N.M. 1996). Garcia v. Montgomery Cty., Maryland, 145 F. Supp. 3d 492 (D.Md. Nov. 2, 2015). Naveed v. City of San Jose, Case No. 15-cv-05298-PSG, 2016 WL 2957147 (N.D. Cal. May 23, 2016). Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D.Pa. July 19, 2005).
OPINIONS BELOW
This appeal arises from the judgement of the United States Court of Appeals for the
Thirteenth Circuit, Lockwood v. Piper, No. 15-648 (13th Cir. Dec. 14, 2016), which can be found
at R. 2-16.
CONSTITUTIONAL AND STATUTORY PROVISIONS
1. The Fourth Amendment to the U.S. Constitution states, in pertinent part, that “[t]he right of
the people to be secure … against unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV.
2. The First Amendment to the U.S. Constitution states, in pertinent part, that “[Congress shall
make no law … abridging the freedom of speech, or of the press.” U.S. Const. amend. I.
3. Craven General Statutes Section 15A-287 states that an individual “is subject to prosecution
for eavesdropping if he or she records a conversation without the consent of all parties involved.”
The law defines a “conversation” as including “any oral communication between two or more
persons regardless of whether one or more of the parties intended their communication to be of a
private nature under circumstances justifying that expectation.” The law further states that a
violation of Section 15A-287 “is a class one misdemeanor, which carries a maximum fine of
$500 and a maximum jail time of one week.” R. 4 (describing Craven Gen. Stat. § 15A-287).
STATEMENT OF THE CASE
In the Spring of 2013, local environmentalists in the city of St. Mungo, Craven started an
encampment in Diagon Park to protest a planned government construction project in the park. R.
2. Over the course of the eight month-long occupation, a number of homeless people also began
to live in the encampment. R. 2. On January 20, 2014 the police began to forcefully remove both
the activists and the homeless people in order to clear the park and allow construction to begin.
R. 2. During the police action, several of the environmental activists and a number of the
homeless people “refused to comply with police orders to leave the park.” R. 3. Luna Lockwood,
the Respondent in the present case, was one of the environmentalist activists present in the park.
R. 3. Ms. Lockwood, intentionally brought her video camera with her to the park to in order to
record the conduct of the police during the clearing action. R. 3. Her video camera recorded both
audio and video. R. 3.
During the police’s efforts to clear the encampment, the occupiers became resistant to the
police. R. 3. Ms. Lockwood recorded a police officer who directed “harsh language,” including a
racial slur, at a homeless man. R. 3. Another officer saw Ms. Lockwood recording the encounter
and yelled that she “had to stop recording and erase the video because she was violating Craven
Gen. Stat. § 15A-287.” R. 3. Craven Gen. Stat. Section 15A-287 is the Craven state law
punishing eavesdropping by criminalizing the recording of “any oral communication between
two or more persons regardless of whether one or more of the parties intended their
communication to be of a private nature,” without the consent of all parties involved. R. 4. In
response to the officer’s statement, Ms. Lockwood “immediately stopped recording,” moved
further way to a position behind some bushes, and resumed filming. R. 3. Ms. Lockwood
recorded an additional “particularly heated and epithet-filled encounter between the police and
those in the park” before leaving the park and returning to her home, which was located near the
park. R. 3. Ms. Lockwood was later charged with violating Craven Gen. Stat. Section 15A-287
for creating the audiovisual recordings of the police conduct in the park, R. 4.
While Ms. Lockwood was filming the police activity in Diagon Park, her conduct and
interactions with the other officer were observed by Officer Piper, the Petitioner in the present
case, who was a plainclothes officer working undercover in the park. R. 3. Piper pursued Ms.
Lockwood after she had ceased recording and was returning to her home near the park. R. 3. Due
to the “substantial distance” between Officer Piper and Ms. Lockwood by the time she reached
her house, Officer Piper “saw nothing to indicate to him that Lockwood had noticed him
watching or pursuing her.” R. 3. When Officer Piper reached the house, he knocked on the front
door, identified himself as a police officer, held up his badge, and ordered Ms. Lockwood to
open the door. R. 3. However, Ms. Lockwood refused to open the door because she did not
believe that Piper, who was dressed in plain clothes, was in fact a police officer, stating that he
looked “more like a homeless person than a police officer.” R. 3. In particular, Ms. Lockwood
told Officer Piper she was concerned about the number of “recent robberies in Craven by men
posing as police officers.” R. 3. After repeating his order to open the door, which Ms. Lockwood
again refused, Officer Piper forcefully kicked open the front door, causing damage to the door
jam, and entered the house without a warrant. R. 3.
When Officer Piper entered her home, Ms. Lockwood retreated from the living room to
the back of the house, grabbed her video camera, and hid in the bedroom. R. 3. Officer Piper
pursued Ms. Lockwood to the bedroom, stating he was a police officer and that she was under
arrest. R. 3. He also ordered Ms. Lockwood to put her hands on her head, which she refused to
do. R. 3. After Officer Piper entered the bedroom where Ms. Lockwood was hiding, he observed
Ms. Lockwood look around the room and reach towards a backpack which was on the bed in the
room. R. 3. Throughout this interaction, Ms. Lockwood screamed for help and for Piper to leave.
R. 3. Officer Piper then used his baton to strike Ms. Lockwood on her leg, causing her to fall to
the floor and drop her video camera. R. 3. Piper then seized the video camera, placed his hand on
Ms. Lockwood’s back, and “ordered her to stay down and not to move.” R. 3. As Ms. Lockwood
attempted to get off the floor, Officer Piper struck Ms. Lockwood with his baton on the head.
Piper’s second baton strike knocked Ms. Lockwood unconscious and “caused brain damage that
affects her motor skills and ability to speak” to the present day. In addition to the initial
hospitalization for her injuries, Ms. Lockwood continues to be involved in physical therapy and
suffers from posttraumatic stress disorder. R. 3.
While the charge against Ms. Lockwood for violating Craven Gen. Stat. Section 15A-287
was ultimately dropped, Ms. Lockwood filed a suit against Officer Piper under under 42 U.S.C. §
1983 alleging she was deprived of her Fourth Amendment rights to be free from unreasonable
searches and to be free from excessive force by law enforcement officials, as well as her First
Amendment right to gather news and receive information and ideas. R. 4. The district court
below granted partial summary judgment for Ms. Lockwood ruling that Officer Piper’s
warrantless entry into the house violated Ms. Lockwood’s Fourth Amendment right to be free
from unreasonable searches. R. 4. However, the district court also ruled that “the use of force by
Piper against Lockwood was not excessive” and that Craven Gen. Stat. Section 15A 287 did not
violate Lockwood’s First Amendment right to gather news and receive information and ideas. R.
5. Following Lockwood’s appeal of the district court’s decision, the United States Court of
Appeals for the Thirteenth Circuit reversed the district court. See R. 2-12. This Court then
granted certiorari. R. 17.
SUMMARY OF THE ARGUMENT
A. Officer Piper’s use of force was unreasonable under the totality of circumstances
analysis required by the Fourth Amendment’s objective reasonableness standard.
Following this Court’s precedent, uses of excessive force are properly analyzed as
seizures under the Fourth Amendment’s “objective reasonableness” standard. This Court has
long held that the test for objective reasonableness in excessive force claims is whether the
totality of the circumstances justifies the use of force. However, this Court has not yet ruled
specifically on the extent of facts and circumstances that may be considered in the totality of the
circumstances test. The Thirteenth Circuit correctly held that the totality of circumstances test
requires consideration of all facts and circumstances relevant to the use of force. The majority of
federal circuits agree with the Thirteenth Circuit’s interpretation of this Court’s precedent and
require all relevant facts and circumstances surrounding a use of force to be considered in the
totality of circumstances calculus. However, the minority of federal circuits disagree, and
incorrectly hold that the totality of circumstances encompasses only the facts and circumstances
at the moment of and immediately prior to a use of force.
Under the broader interpretation of the totality of circumstances test, the Thirteenth
Circuit correctly held that Officer Piper’s use of excessive force was objectively unreasonable in
violation of the Fourth Amendment. Considering all of the relevant facts and circumstances
known to Officer Piper leading up to and at the moment of his use of force against Ms.
Lockwood as well as the serious harm suffered by Ms. Lockwood as a result, Officer Piper’s
actions cannot be considered objectively reasonable. Even if this Court adopts the interpretation
of the totality of circumstances test followed by the minority of federal circuits and thereby
considers only the facts and circumstances at the moment of and immediately prior to to Officer
Piper’s use of force, Officer Piper’s actions are nonetheless objectively unreasonable.
Because the correct interpretation of the totality of circumstances test under the Fourth
Amendment’s objective reasonableness standard includes all relevant facts and circumstances
surrounding Officer Piper’s use of force, and the use of force in this case cannot be considered
objectively reasonable under either interpretation of the totality of circumstances test, the
Thirteenth Circuit’s ruling should be affirmed.
B. There is a First Amendment right to record the public conduct of police officers, which
Craven Gen. Stat. Section 15A-287 impermissibly restricts.
This Court has repeatedly emphasized the crucial role of the First Amendment in
facilitating the informed discussion of matters of public concern, as well as its function in
safeguarding against governmental abuses by subjecting governmental officials to public
scrutiny. Consequently, this Court has broadly interpreted the scope of the First Amendment’s
protections to include the right to gather and disseminate information related to matters of public
concern, including information on governmental activity and the public conduct of government
officials. However, this Court has not specifically addressed whether the First Amendment
encompasses the right of private individuals to record police officers performing their duties in
public. Nonetheless, in the Circuit and District courts which have directly addressed the issue of
non-consensual recording of police officers, the courts have relied on the First Amendment
jurisprudence of this Court to conclude that the First Amendment expressly protects the right of
private individuals to record of police officers conducting their official duties in public.
However, the government may impose content-neutral restrictions on the First
Amendment right to create audiovisual recordings of matters of public interest and of
government officials, including police officers, performing their duties in public. To survive
judicial review under the intermediate scrutiny standard, such restrictions must be reasonably
tailored to advance an important government interest. Craven Gen. Stat. Section 15A-287 is not
sufficiently tailored to advance the important government interest in protecting conversational
privacy, therefore the law is unconstitutional insofar as it restricts the right to record the public
conduct of police officers. Therefore Lockwood’s First Amendment rights were violated and this
Court should affirm the Thirteenth Circuit’s reversal of the District Court’s grant of summary
judgment for Piper.
ARGUMENT I. THIS COURT SHOULD AFFIRM THE THIRTEENTH CIRCUIT’S DECISION
BECAUSE OFFICER PIPER’S USE OF FORCE WAS UNREASONABLE UNDER THE
TOTALITY OF CIRCUMSTANCES ANALYSIS REQUIRED BY THE FOURTH
AMENDMENT’S OBJECTIVE REASONABLENESS STANDARD.
The Thirteenth Circuit correctly relied on this Court’s precedent to find that the totality of
circumstances analysis required by the Fourth Amendment’s objective reasonableness standard
in excessive force claims necessitates consideration of all relevant facts and circumstances
leading up to and at the moment of a use of force. The majority of federal circuits follow the
same or similar interpretations, holding that facts and circumstances leading up to and at the
moment of a use of force should be considered in the totality of the circumstances. Only a
minority of federal circuits follow the interpretation urged by Officer Piper, which considers only
those facts and circumstances at the moment of or immediately prior to the use of force. This
Court should hold that the correct interpretation of the totality of circumstances test includes all
relevant facts and circumstances leading up to and at the moment of a use of force.
The Thirteenth Circuit correctly held that Officer Piper’s use of excessive force was
unreasonable by applying the correct interpretation of the totality of circumstances test under the
Fourth Amendment’s objective reasonableness standard. Even if this Court adopts an articulation
of the objective reasonableness standard that excludes facts and circumstances leading up to a
use of force, Officer Piper’s use of excessive force is still unreasonable, and thus in violation of
the Fourth Amendment.
A. Violations of the Fourth Amendment’s protection against unreasonable seizures
by excessive force must be analyzed in the totality of circumstances, which requires
consideration of all facts and circumstances relevant to the use of force.
This Court should hold that the Fourth Amendment’s objective reasonableness standard
requires a broader view of the “totality of circumstances” analysis that considers all of the
relevant facts and circumstances surrounding a use of excessive force, including those facts and
circumstances that may have occurred prior to the use of force. This formulation of the totality of
circumstances test does not, as Officer Piper contends, ask the court to consider the use of force
“with the 20/20 vision of hindsight.” Graham v. O’Connor, 490 U.S. 386, 396 (1989) (citing
Terry v. Ohio, 392 U.S. 1, 20-22 (1968)). Rather, it allows a court to examine all of the
information that the officer possessed at the time of the use of force in order to determine
whether the officer’s judgment was objectively reasonable. This approach to the totality of
circumstances test is supported by the majority of federal circuits.
1. This Court’s articulation of the objective reasonableness standard in
excessive force cases requires consideration of the totality of circumstances
surrounding the use of force.
“To determine the constitutionality of a seizure we must balance the nature and quality of
the intrusion on the individual’s Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.” Tennessee v. Garner, 471 U.S. 1, 8
(1985) (internal quotations omitted) (quoting United States v. Place, 462 U.S. 696, 703 (1983)).
In Tennessee v. Garner, this Court held that “apprehension by the use of deadly force is a seizure
subject to the reasonableness requirement of the Fourth Amendment,” and that the proper test for
objective reasonableness is “whether the totality of circumstances justifie[s] a particular sort of…
seizure.” See id. at 9-10. This Court further stated that “it is plain that reasonableness depends
on not only when the seizure is made, but how it is carried out.” Id. at 8. Subsequently, in
Graham v. O’Connor, this Court held that the same legal framework should apply to all seizures
effected by force, regardless of whether that force was deadly or otherwise excessive. See 490
U.S. at 395. “[A]ll claims that law enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard….” Id. In Graham, this
Court also explained that the “totality of circumstances” test articulated in Garner “requires
careful attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396.
2. This Court should adopt the approach followed by the majority of federal
circuits, which utilize a broad version of the totality of the circumstances test
which considers all relevant facts and circumstances surrounding a use of
force, including those facts and circumstances that may have occurred prior
to the use of force.
In deciding the instant case on appeal, the Thirteenth Circuit ultimately interpreted the
totality of circumstances test for objective reasonableness as envisioned by this Court originally
in Tennessee v. Garner and subsequently in Graham v. O’Connor to include facts and
circumstances prior to the use of force. See R. 8 (“What the Supreme Court meant by
consideration of the ‘totality of the circumstances’ was that a court should consider not only the
facts and circumstances surrounding the precise moment of the use of force, but also the relevant
facts and circumstances leading up to the use of force.”). The appeals court reasoned that uses of
force necessarily result from the interactions between officers and citizens, and that “it is
nonsensical to examine only the very moment of the use of force, without also examining
relevant facts and circumstances between the officer and the arrestee leading up to the use of
force.” R. 9. The appeals court added that an officer’s provocation of a need for force via an
independent Fourth Amendment violation separate from the excessive force in question should
always be considered in the totality of circumstances under the objective reasonableness
standard. See R. 9.
Similarly, the First Circuit has held that “once it is clear that a seizure has occurred, the
court should examine the actions of the government officials leading up to the seizure.” Young v.
City of Providence, 404 F.3d 4, 22 (1st Cir. 2005) (internal quotation marks omitted) (quoting
Hilaire v. City of Laconia, 71 F.3d 20, 26 (1st Cir. 1995)). In Young v. City of Providence, two
on-duty police officers were responding to an urgent call at a nearby restaurant when they saw a
man with a gun enter a vehicle, took cover, and ordered the man to drop the gun. Id. at 13-14.
One officer left his position of cover to approach the vehicle when an armed, off-duty police
officer dining at the restaurant emerged to assist the on-duty officers. Id. at 14. Misidentifying
the off-duty officer as a threat, the on-duty officers yelled for him to drop his weapon and shot
him almost immediately, killing him. Id. at 15. The court determined that “police officers’
actions for our purposes need not be examined solely at the moment of the shooting,” and that
facts regarding the on-duty officer leaving cover, the misidentification of the off-duty officer,
and the rapidity with which the on-duty officers shot the off-duty officer could all be considered.
Id. at 22-23. The court then ruled that all relevant facts surrounding the use of force should be
admitted as evidence, and that it should be up to the jury to decide whether those facts have a
sufficient causal nexus to the use of force or are too attenuated. See id.
In the Third Circuit, courts must consider all relevant facts and circumstances
surrounding a use of force, including “pre-seizure” events, in the totality of circumstances test
under the objective reasonableness standard. See Abraham v. Raso, 183 F.3d 279, 295 (3d Cir.
1999). In Abraham v. Raso, the U.S. Court of Appeals for the Third Circuit discussed the totality
of the circumstances test, and concluded that “[t]otality is an encompassing word” that “implies
that reasonableness should be sensitive to all of the factors bearing on the officer’s use of force.”
183 F.3d at 291 (internal quotations omitted). In its discussion, the court rejected cases in other
circuits which do not consider pre-seizure conduct, stating, “[W]e do not see how these cases can
reconcile the Supreme Court’s Rule requiring examination of the ‘totality of the circumstances’
with a rigid rule that excludes all context and causes prior to the moment the seizure is finally
accomplished.” Id.
Although the Fourth Circuit previously adopted an approach that rejected the
consideration of facts and circumstances prior to the moment of the seizure, it has since changed
course. Compare Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (excluding pre-seizure
conduct and holding that officers’ liability should be determined solely based on facts and
circumstances immediately prior to and at the moment of the use of force) with Smith v. Ray, 781
F.3d 95, 101-02 (4th Cir. 2015) (“We rejected this approach [in Rowland v. Perry], concluding
that it miss[es] the forest for the trees.”) (internal quotation marks omitted) (quoting Rowland v.
Perry, 41 F.3d 167, 173 (4th Cir. 1994)). In Rowland v. Perry, the Fourth Circuit announced,
“The better way to assess the objective reasonableness of force is to view it in full context, with
an eye toward the proportionality of the force in light of all the circumstances. Artificial
divisions in the sequence of events do not aid a court’s evaluation of objective reasonableness.”
41 F.3d at 173. In Smith v. Ray, the Fourth Circuit reaffirmed its analysis from Rowland, and
went on to consider the officer’s provocation of a more dangerous situation as a factor in the
totality of circumstances surrounding the officer’s eventual use of excessive force. See Smith,
781 F.3d at 101-02, 103.
Additionally, the Seventh Circuit has held that “all of the events that occur[] around the
time of the [use of force] are relevant,” and that “[t]he totality of circumstances cannot be limited
to the precise moment” of the use of force. Deering v. Reich, 183 F.3d 645, 649 (7th Cir. 1999).
In Estate of Starks v. Enyart, police officers were responding to a report of a stolen taxicab in a
Taco Bell parking lot when the suspect attempted to flee. 5 F.3d 230, 232 (7th Cir. 1993). After
the suspect backed the stolen taxicab into a police vehicle, he accelerated forward in the general
direction of, but not directly at, a utility pole behind which one police officer was standing. Id.
When the suspect began to accelerate, the officer behind the utility pole jumped in the path of the
taxicab, and all three officers fired their weapons, killing the suspect. Id. In determining whether
the police officers’ use of force was objectively reasonable, the Seventh Circuit held that it must
consider the officer’s actions in leaving cover behind the utility pole and leaping into the path of
the taxicab prior to the use of force. See id. at 233-34. According to the Seventh Circuit, the
officer’s actions prior to the use of force may have converted the suspect from a “fleeing felon”
to a “threatening felon,” and were entirely relevant in the totality of circumstances surrounding
the reasonableness of the use of force. See id. at 234-35.
Ninth Circuit courts consider “whatever specific factors may be appropriate in a
particular case, whether or not listed in Graham” as part of the totality of circumstances in the
objective reasonableness inquiry. Mattos v. Agarano, 661 F.3d 433, 445 (9th Cir. 2011) (quoting
Bryan v. MacPherson, 630 F.3d 805, 826 (9th Cir. 2010)). Several Ninth Circuit cases have
specifically held that an officer’s provocation of a dangerous, violent, or otherwise contentious
situation should be considered as a factor in the totality of circumstances. See, e.g., Alexander v.
City & Cty. of San Francisco, 29 F.3d 1355, 1364-67 (9th Cir. 1994). In Alexander v. City &
County of San Francisco, police officers were accompanying health inspectors serving a forcible
entry warrant on a man’s home when the occupant threatened to use his gun to prevent their
entry. 29 F.3d at 1358 (9th Cir. 1994). When officers stormed the home, the occupant fired a gun
at them, and they returned fire, killing him. Id. Even though the officers’ return fire would
generally be considered reasonable, the court determined that it must consider the officers’
knowledge that the occupant was “a mentally ill, elderly, half-blind recluse who had threatened
to shoot anybody who entered” in the totality of circumstances surrounding the reasonableness of
the use of force. See id. at 1366. In Espinosa v. City & County of San Francisco, the Ninth
Circuit similarly held that “even though the officers reasonably fired back in self-defense, they
could still be held liable for using excessive force because their reckless and unconstitutional
provocation created the need to use force.” 598 F.3d 528, 548 (9th Cir. 2010). In Billington v.
Smith, the Ninth summarized its rule regarding provocation as a result of independent Fourth
Amendment violations: “[W]here an officer intentionally or recklessly provokes a violent
confrontation, if the provocation is an independent Fourth Amendment violation, he may be held
liable for his otherwise defensive use of deadly force.” 292 F.3d 1177, 1189 (9thCir. 2002).
Subsequently, in Glenn v. Washington County, the Ninth Circuit held that even officers’
otherwise reasonable use of force could be actionable if it arose from an independent Fourth
Amendment violation. See 673 F.3d 864, 870 (9th Cir. 2011).
In the Tenth Circuit, courts consider all relevant facts and circumstances as long as they
are “immediately connected” in time and causation to the eventual use of force. See Sevier v.
City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995); Bella v. Chamberlain, 24 F.3d 1251, 1256
n. 7 (10th Cir. 1994); Diaz v. Salazar, 924 F. Supp. 1088, 1095-1096 (D.N.M. 1996). Although
the court in Bella v. Chamberlain rejected consideration of events that occurred one hour prior to
the use of force, it explained in a footnote that there was a significant rift in time and causation,
including a length helicopter chase, between prior events and the eventual use of force. See
Bella, 24 F.3d at 1256 n. 7. The Bella court specifically explained in the same footnote that any
events immediately connected with the seizure should be taken into account. Id. In Diaz v.
Salazar, the United States District Court for the District of New Mexico analyzed Bella along
with other relevant Tenth Circuit precedent, concluding that “it [is] clear that the totality-of-the-
circumstances calculus used in excessive-force analysis under the Fourth Amendment employs a
lens sufficiently wide to encompass those pre-seizure events immediately connected with the
actual seizure.” Diaz, 924 F. Supp. at 1096. In several excessive force cases post-Bella, the Tenth
Circuit has specifically considered officers’ conduct that “unreasonably created the need to use
such force” as a factor in the totality of the circumstances. Allen v. Muskogee, 119 F.3d 837, 840
(10th Cir. 1997); Romero v. Board of Cty. Comm’rs, 60 F.3d 702, 704-05 (10th Cir. 1995);
Sevier, 60 F.3d at 699.
Finally, the Sixth Circuit follows what it refers to as a “segmented” approach to the
totality of circumstances test. See Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 406 (6th Cir.
2007). Under this approach, the court views the events of excessive force claims in temporal
segments, considering only the facts and circumstances occurring in the segment of the excessive
force when analyzing the totality of the circumstances. See id. at 406-07. In Livermore ex rel
Rohm v. Lubelan, the Sixth Circuit used the segmented approach in order to exclude facts and
supporting the plaintiff’s claims that police officers unreasonably created the circumstances
leading to the use of force. See id. However, the Sixth Circuit clarified the segmented approach
as it related to facts and circumstances prior to the use of force in 2011 in Bletz v. Gribble. See
641 F.3d 743, 752 (6th Cir. 2011). In Bletz, the court retained the segmented approach, but read
previous Sixth Circuit cases to conclude that events preceding a use of force can be considered in
analyzing the totality of circumstances in an excessive force claim. See 641 F.3d at 752; see also
Claybrook v. Birchwell, 274 F.3d 1098, 1103-04 (6th Cir. 2001) (concluding that where “the
evening’s events are not so easily divided[,]” the segmented approach does not mandate that the
court “look only at what occurred in the moments immediately” preceding the use of force).
Thus, although the Sixth Circuit’s segmented approach is procedurally different than those used
in the preceding majority of federal circuits, it is more akin to the scope of the broader totality of
the circumstances test allowing pre-seizure facts and circumstances than the narrow test adopted
by the minority of federal circuits.
3. This Court should reject the approach followed by the minority of federal
circuits, which consider only those facts and circumstances existing at the
moment of the use of force.
The totality of circumstances test in the Fourth Amendment context does not require that
courts look only to the facts and circumstances at the moment of the use of force, nor does it
contemplate the exclusion of facts or circumstances which occur in the moments leading up to
the use of force. However, the Second, Fifth, and Eighth Circuits have limited the objective
reasonableness standard in precisely this way. See Thompson v. Mercer, 762 F.3d 433, 440 (5th
Cir. 2014) (“[R]egardless of what had transpired up until the shooting itself, the question is
whether the officer [had] reason to believe, at that moment, that there was a threat of physical
harm.”) (internal quotation marks omitted) (quoting Fraire v. City of Arlington, 957 F.2d 1268,
1276 (5th Cir. 1992)); Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (“The reasonableness
inquiry depends only upon the officer's knowledge of circumstances immediately prior to and at
the moment that he made the split-second decision to employ deadly force.”); Schulz v. Long, 44
F.3d 643, 648 (8th Cir. 1995) (“[W]e scrutinize only the seizure itself, not the events leading to
the seizure, for reasonableness under the Fourth Amendment.”) (quoting Cole v. Bone, 993 F.2d
1328, 1333 (8th Cir. 1993)). The Second, Fifth, and Eighth Circuits (along with Officer Piper)
attempt to contravene this Court’s precedent and depart from the majority of federal circuits by
considering objective reasonableness in a vacuum of facts and circumstances existing at the
moment of a use of force. These circuits’ construction of objective reasonableness is plainly in
violation of this Court’s direction to consider the totality of circumstances in excessive force
claims. See Graham, 490 U.S. at 395-96; Garner, 471 U.S. at 9-10.
In Abraham v. Raso, the Third Circuit reviewed cases from the minority of circuits that
adopt such a narrow formulation of objective reasonableness, and heavily criticized their
approach. See 183 F.3d at 291-92. The court noted, “We reject the reasoning of [circuits
excluding pre-seizure facts and circumstances] because we do not see how these cases can
reconcile the Supreme Court’s rule requiring examination of the ‘totality of circumstances’ with
a rigid rule that excludes all context and causes prior to the moment the seizure is finally
accomplished.” Id. at 291. The court further explained that “[i]f we accept… the rule that pre-
seizure conduct is irrelevant, then virtually every shooting would appear unjustified, for we
would be unable to supply any rationale for the officer’s conduct.” Id. When the court reviewed
cases from circuits adopting this approach, it also found a “problematic” practical distinction that
had the effect “only excluding evidence that helps the plaintiff show the force was excessive.” Id.
(emphasis added). The Abraham court finally concluded that events should only be excluded
from the totality of the circumstances calculus if they “have too attenuated a connection to the
officer’s use of force.” Id. at 292. “But what makes these prior events of no consequence are
ordinary ideas of causation, not doctrine about when the seizure occurred.” Id.
In Hilaire v. City of Laconia, the First Circuit also took issue with the minority of
circuits’ exclusion of pre-seizure facts and circumstances from the totality of circumstances
calculus. See 71 F.3d at 26. In Hilaire, the district court relied on Eighth Circuit precedent to
exclude evidence supporting the plaintiff’s claim that officers unreasonably created the
dangerous circumstances that caused the necessity for use of force. Id. (citing Cole, 993 F.2d at
1333). The First Circuit rejected the district court’s reasoning, believing that it was legally in
error, and that it required too great a specificity such that officers would nearly never be found to
have used excessive force. See id. at 25, 26. The court then rejected police officers’ contention
that their actions should be examined for reasonableness only at the moment of the shooting,
stating that such a construction of the totality of circumstances test “is inconsistent with Supreme
Court decisions and with the law of [the First] Circuit.” See id. at 26. In doing so, the First
Circuit specifically pointed out that pre-seizure facts and circumstances that would likely be
excluded by the minority of circuits’ approach to the totality of circumstances test were
considered by this Court in Brower v. Inyo, although it was decided prior to Graham v.
O’Connor. See Hilaire, 71 F.3d at 26; see also Brower v. Inyo, 489 U.S. 593, 599 (1989)
(“Petitioners can claim the right to recover for Brower’s death only because the
unreasonableness they allege consists precisely of setting up the roadblock in such a manner as
to be likely to kill him . . . . Thus, the circumstances of this roadblock, including the allegation
that headlights were used to blind the oncoming driver, may yet determine the outcome of this
case.”).
B. Officer Piper’s conduct failed the reasonableness test and constituted excessive
for under any interpretation of the totality of the circumstances balancing test this
court applies.
1. Officer Piper’s conduct failed the reasonableness test when considering
relevant facts and circumstances leading up to the moment of the use of
force.
Officer Piper did not act reasonably, in light of the circumstances leading up to the
moment of the use of force. Ms. Lockwood contends she was exercising her First Amendment
right to record police officers acting in public. At worst, Officer Piper believed Ms. Lockwood
committed a minor offense.1 R. 4. He therefore pursued her, without her knowledge, to her home
dressed as a man staying at the encampment. R. 3. Officer Piper believed Ms. Lockwood didn’t
know he was following her and he knew he was dressed in plain clothes after joining the
encampment for some time. R. 3. Furthermore, upon arrival at Ms. Lockwood’s home Officer
Piper was told exactly why she needed further proof that he was an officer: the string of recent
crimes by plain-clothed men acting as police officers. R. 3. Despite this information Officer
Piper knowingly committed an independent 4th Amendment violation by breaking into Ms.
Lockwood’s home without a warrant.2 R. 3, 5. His break-in provoked a confrontation with Ms.
Lockwood that ultimately led to his use of unreasonable force. See R. 3; Espinosa v. City & Cty.
of San Francisco, 598 F.3d 528 (9th Cir. 2010). In Espinosa v. City & County of San Francisco,
officers entered a without a warrant home despite no sign of an exigent circumstances. 598 F.3d
1 Violating Gen. Stat. Section 15A-287 is a class one misdemeanor. R. 4 2 The Thirteenth Circuit found Officer Piper had violated Ms. Lockwood’s Fourth Amendment rights by breaking into her home. He did not appeal the Thirteenth Circuit’s finding on the matter. R. 4-5.
at 532-533. After making their way to the attic of the house, the officers fired and killed a man
after he refused to comply with their orders. Id. at 533. The Ninth Circuit stated that there was
evidence that the initial violation created the situation which lead to the violent confrontation. Id.
at 539. This Court cannot ignore the fact that Officer Piper similarly created the circumstances
for a violent confrontation with Ms. Lockwood by illegally entering her home. See id. at 533.
At the time Officer Piper decided to use force against Ms. Lockwood, he possessed all of
this knowledge. His conduct was unreasonable because the nature and quality of the intrusion on
Ms. Lockwood’s Fourth Amendment interests were disproportionate to the countervailing
governmental interests at stake. The nature and quality of the intrusion is measured by the type
and amount of force. Jackson v. City of Bremerton, 268 F.3d 646, 652 (9th Cir. 2001) (quoting
Chew v. Gates, 27 F.3d 1432, 1440 (9th Cir. 1994)). Therefore no reasonable officer would do
the same. See id. Here, the nature and quality of the intrusion was great. Officer Piper violated
Ms. Lockwood’s body when he physically struck her leg with a baton. R. 3. He violated it again
when he struck her head with his baton so strongly that he knocked Ms. Lockwood unconscious.
R. 3. Consequently Ms. Lockwood suffered severe brain damage and has disabled motor and
speaking function. R. 3. Officer Piper’s force was so intrusive that its effects were felt long after
he applied it. See R. 3. After hospitalization, Ms. Lockwood suffered from PTSD and had to
attend regular physical therapy. R. 3. This was not tantamount to a push or shove as referenced
by this Court in Graham v. O’Connor. See Graham, 490 U.S. 386, 395 (quoting Johnson v. Glick
481 F.2d 1028, 1033 (2d Cir. 1973)); R. 3. Rather, Officer Piper intrusion led to long lasting
damage against Ms. Lockwood’s person under the Fourth Amendment. See R. 3. Officer Piper
committed this intrusion while illegally breaking into Ms. Lockwood’s home for a minor
offense. See R. 3.
Furthermore, the governmental interests were minimal in comparison to the force used.
The severity of Ms. Lockwood’s alleged crime was minor. See R. 4 (“A violation of the Act is a
class one misdemeanor, which carries a maximum fine of $500 and a maximum jail time of one
week.”). Ms. Lockwood allegedly violated Craven Gen. Stat. Section 15A-287, which constitutes
only a class one misdemeanor subject to fines up to $500 and 7 days or less in jail if she were
found guilty. R. 4. Furthermore, Ms. Lockwood did not pose an immediate threat to the safety of
the officer or others. She did not pose a danger to others because the confrontation occurred in
her private home and no one other than the Officer Piper and Ms. Lockwood were present. R. 3.
Ms. Lockwood also did not pose an immediate threat to the officer’s safety because she never
attacked the officer, wrestled with him, or sought to cause him harm. See R. 3. At no point did
she reach for a weapon, use one, or threaten the officer verbally or physically. See R. 3. Further,
in Tennessee v. Garner this Court concluded that an unarmed suspect could not be considered
automatically dangerous after breaking into a home. 471 U.S. 1, 21 (1985) (“Although the armed
burglar would present a different situation, the fact that an unarmed suspect has broken into a
dwelling at night does not automatically mean he is physically dangerous.”). Therefore, Ms.
Lockwood must not be considered automatically dangerous for being unarmed in her own home.
See id.; R. 3. While Ms. Lockwood reached for a bag and grabbed her camera at different times
during the chase in her home3, and Officer Piper might conclude that Ms. Lockwood posed an
immediate threat to him, Ms. Lockwood contends she never posed a threat to Officer Piper. Even
if she did, Officer Piper’s own actions converted Ms. Lockwood from a fleeing suspect to a
threatening one by illegally breaking into her home. See Estate of Starks v. Enyart, 5 F.3d at 234
(“If a fleeing felon is converted to a ‘threatening’ fleeing felon solely based on the actions of a
3 The only chase in the facts occurred in Ms. Lockwood’s home. Officer Piper and Ms. Lockwood were not engaged in a chase when he followed her back to her home because she did not know she was being followed. R. 3-4.
police officer, the police should not increase the degree of intrusiveness. In other words, we have
no countervailing governmental interest in unreasonable police conduct that would justify a
greater intrusion on the individual's rights.”). When considering the totality of the circumstances,
if this Court decides that Officer Piper could reasonably believe Ms. Lockwood was an
immediate threat, it must consider Officer Piper’s sole role in provoking the confrontation as
well as his subsequent escalation.
These circumstances are significantly less threatening than those found in other cases
such as Thompson v. Mercer. See 762 F.3d 433, 438 (5th Cir. 2014). In that case, the petitioner
posed a threat to officers and the public during a high speed car chase. Id. at 438. His car drove
against oncoming traffic, through stop lights, and dangerously close to vehicles. Id. Therefore,
the court concluded his conduct posed an immediate threat to the safety of others. Id. In Schulz v.
Long the appellant threw bricks at the officers and attempted to harm them with an ax after they
were called by appellant's parents to subdue him. 44 F.3d 643, 646 (8th Cir. 1995). The officers
rightfully judged that the appellant posted a threat to them and others. See id.
Although Officer Piper may argue that resisting arrest should weigh heavily in this
Court’s analysis of the totality of the circumstances and the governmental interest, neither this
Court nor any any circuit courts have ever held that a permanently debilitating physical intrusion
was justified by merely resisting arrest. Furthermore, this Court must consider the fact that
Officer Piper was conducting an unlawful arrest to which Ms. Lockwood was fully within her
rights to resist. See Bad Elk v. United States, 177 U.S. 529, 533 (1900); Payton v. New York, 445
U. S. 573, 584 (1980). Officer Piper’s arrest was unlawful because he broke into her home
without a warrant. Payton, 445 U.S. at 576 (The 4th Amendment “prohibits the police from
making a warrantless and nonconsensual entry into a suspect's home in order to make a routine
felony arrest.”). There were no exigent circumstances that would make the seizure by the use of
force warranted. Officer Piper states he was concerned Ms. Lockwood would destroy the
evidence. R. 4. This seems unlikely for three reasons. First, Ms. Lockwood did not know she was
being pursued from the park to her house. R. 3. Second, she also did not believe Officer Piper
was an officer so she had no reason to want to delete the video she recorded. See R. 3. Third,
filming police conduct is intended to be shared and disseminated to raise awareness and not to be
deleted or destroyed. Therefore no exigent circumstance exists by which to justify Officer
Piper’s unlawful arrest. See Kentucky v. King, 563 U.S. 452, 461 (2011).
Consequently, when this Court considers the totality of the circumstances it should
rightfully consider when Ms. Lockwood resisted arrest, but must simultaneously consider that
Officer Piper had no right to arrest Ms. Lockwood in her home without an arrest warrant in the
first place. Therefore the totality of the circumstances indicate that Officer Piper did not act
reasonably under the circumstances.
2. Officer Piper’s conduct would still fail the reasonableness test even if this
court only considered the facts and circumstances at the moment of the use
of force.
a. Officer Piper acted unreasonably because the facts and
circumstances at the moment of the use began when he committed the
independent Fourth Amendment violation.
In Greenidge v. Ruffin, the officer attempted to make a prostitution arrest. 927 F.2d 789,
790 (4th Cir. 1991). He approached a car who held plaintiff and an alleged prostitute. Id. The
officer did not follow station policy by turning on his flashlight prior to engaging the suspects.
Id. The officer opened the car door and asked them to show their hands. Id. The plaintiff did not
comply and the officer soon pulled out his sidearm and fired at plaintiff causing him non-deadly
permanent damage. Id. Even though the Fourth Circuit interpreted the “totality of the
circumstances” to only include facts at the moment of the use of force by the officer, it
concluded that all facts after the officer opened the car door should be included in the totality of
the circumstances, and not when the officer fired at the plaintiff. Id. at 792. Therefore the
officer’s violation of station policy was irrelevant because it happened prior to the moment of the
use of force. Id.
Therefore, even if this court disregarded all the facts prior to the moment of use of force,
like the Greenidge court, it must consider Officer Piper’s break-in into Ms. Lockwood’s home as
facts immediately prior. In Greenidge the officer’s policy violation occurred prior to the moment
of the use of force when he opened the car door, and here Officer Piper’s violation is the moment
of the use of force and therefore must not be excluded even under the most limiting interpretation
of the “totality of the circumstances.”
Consequently, Officer Piper acted unreasonably under the objective reasonableness test
because, as stated in the earlier test, he knew he violated her rights by breaking into her home, he
saw that she did not have a weapon, and he knew she was afraid of him and running away. See
R. 3. She posed no threat to him or society and yet he caused her long term physical damage to
her body. See R. 3.
b. Even if the facts and circumstances in the moment of the use of
force precluded the independent Fourth Amendment violation,
Officer Piper still acted unreasonably.
Under the balancing test within the most restrictive interpretation of the “totality of the
circumstances”, Officer Piper still acted unreasonably. He struck Ms. Lockwood so severely so
as to cause long term physical damage to her person. R. 3. When balanced against the interest of
seizing Ms. Lockwood, who was in her home and unarmed, for violating a statute punishable as
a class one misdemeanor and posed no threat to Officer Piper or society at large, no reasonable
officer would do the same. See R. 3.
II. THIS COURT SHOULD AFFIRM THE THIRTEENTH CIRCUIT’S DECISION
BECAUSE PRIVATE CITIZENS HAVE A FIRST AMENDMENT RIGHT TO RECORD
PUBLIC POLICE CONDUCT WHICH CRAVEN GEN. STAT. Section 15A-287
IMPERMISSIBLY RESTRICTS.
Private individuals have a First Amendment right to create audiovisual recordings of
matters of public interest and of government officials, including police officers, performing their
duties in public. However, the government may impose content-neutral restrictions on the right
to record police officers during the public performance of their official duties which are subject
to intermediate scrutiny. Craven Gen. Stat. Section 15A-287 is unconstitutional because it is not
narrowly tailored to advance the important government interest in protecting conversational
privacy. Therefore Lockwood’s First Amendment rights were violated and this Court should
affirm the Thirteenth Circuit’s reversal of the District Court’s grant of summary judgment for
Piper.
A. The First Amendment’s protection of the right to gather news encompasses the
right of private individuals to make audiovisual records of matters of public
interest, which includes the conduct of government officials, such as police officers,
during the performance of their duties in public.
1. The First Amendment protects the right of both the press and the general
public to gather news.
This Court has clearly held the “right to gather news” is subject to at least “some
protection” under the First Amendment. Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978);
Branzburg v. Hayes, 408 U.S. 665, 681-82 (1972). In Branzburg, a journalist refused to reveal
his confidential sources to a grand jury, asserting the information was protected by the First
Amendment. Branzburg, 408 U.S. at 667-71. Though ultimately refusing “to recognize the
existence of any privilege authorizing a newsman to refuse to reveal confidential information to a
grand jury,” this Court noted “[w]e do not question the significance of free speech, press, or
assembly to the country’s welfare.” Id. at 681, 685-86. However, Branzburg does not limit the
freedom to “seek news,” rather the decision clarified that “it [is not] suggested that news
gathering does not qualify for First Amendment protection; without some protection for seeking
out the news, freedom of the press could be eviscerated.” Id. at 681 (emphasis added). This Court
later expressly confirmed in Houchins that the First Amendment protects a general “right to
gather news” holding that “[t]here is an undoubted [First Amendment] right to gather news ‘from
any source by means within the law.’” Houchins, 438 U.S. at 11 (citing Branzburg, 408 U.S. at
681-682).
Further, the First Amendment right to gather news applies to the general public, not just
to members of the press. This Court held in Branzburg, and affirmed in Houchins, that the rights
of the press and the public to access information are identical, noting that “the First Amendment
does not guarantee the press a constitutional right of special access to information not available
to the public generally.” Houchins, 438 U.S. at 11; Branzburg, 408 U.S. at 684. Additionally, in
his concurrence in Houchins, Justice Stewart affirmed that the First Amendment does not
“guarantee the press any basic right of access superior to that of the public generally,” but rather
it ensures “the public and the press [have] equal access once government has opened its doors.”
Houchins, 438 U.S. at 16 (Stewart, J., concurring). Since the public and the press have
“coextensive” access to information, the First Amendment right to gather news is “not one that
inures solely to the benefit of the news media.” Glik v. Cunniffe, 655 F.3d 78, 83-84 (1st Cir.
2011). Additionally, the rise of informal ‘citizen journalism’ enabled by the prevalence of
camera-equipped smartphones has “made the lines between private citizen and journalist
exceedingly difficult to draw.” Id. at 84. Therefore the “news-gathering protections of the First
Amendment cannot turn on professional credentials or status.” Id.
2. The right to gather news includes the right to gather information about the
affairs of government and matters of public concern, even though the
information may not itself be newsworthy.
This Court has repeatedly held that a crucial function of the First Amendment is the
facilitation of the informed discussion of “governmental affairs” and other “matters of public
concern.” Bartnicki v. Vopper, 532 U.S. 514, 534 (2001) (recognizing the important First
Amendment “interest in publishing matters of public importance”). In particular, this Court in
Bartnicki held that one of the “core purposes” of the First Amendment is the protection of the
“publication of truthful information of public concern,” even though that information not strictly
‘news.’ Id. at 533-34. Likewise, in New York Times Co. v. Sullivan this Court held it was a
“general proposition that [the] freedom of expression upon public questions is secured by the
First Amendment.” 376 U.S. 254, 269 (1964). In Sullivan this Court also declared that the First
Amendment represents our “profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.” Id. at 270.
Regarding the right to gather information on governmental affairs in particular, this Court
has held that “there is practically universal agreement that a major purpose of [the First]
Amendment was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384
U.S. 214, 218 (1966). Additionally, it is evident that the scope of the First Amendment “goes
beyond” protecting the right to gather or receive information, but acts to “prohibit government
from limiting the stock of information from which members of the public may draw.” First Nat’l
Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); see also Stanley v. Georgia, 394 U.S. 557,
564 (1969) (holding that the First Amendment protects more than simply the right to gather or
receive news, but guarantees the broader “right to receive information and ideas, regardless of
their social worth.”); Thornhill v. Alabama, 310 U.S. 88, 101–02 (1940) (“The freedom of
speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss
publicly and truthfully all matters of public concern without previous restraint or fear of
subsequent punishment”). Consequently, the First Amendment right to gather news recognized
in Branzburg and Houchins includes the broader right to gather and disseminate information on
matters of public concern, particularly information about government activity, even if the
information itself is not strictly news. see Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d
583 (7th Cir. 2012) (affirming “the principle that the First Amendment provides at least some
degree of protection for gathering news and information, particularly news and information
about the affairs of government); Glik, 655 F.3d at 82 (holding that “[g]athering information
about government officials in a form that can readily be disseminated to others serves a cardinal
First Amendment interest in protecting and promoting the free discussion of governmental
affairs)
3. The First Amendment protects the right to gather information about
governmental activity particularly if the information relates to governmental
abuses or misconduct.
By protecting the right to gather, distribute, and receive information about governmental
affairs and other matters of public concern, First Amendment serves the critical function of
subjecting government officials to “extensive public scrutiny and criticism” and thus guards
against governmental abuses and potential “miscarriage[s] of justice.” Gentile v. State Bar of
Nev., 501 U.S. 1030, 1035 (1991) (citing Sheppard v. Maxwell, 384 U.S. 333, 350 (1966)). In
particular, gathering and disseminating information about governmental affairs, “serve[s] as a
powerful antidote to any abuses of power by governmental official.” Mills, 384 U.S. at 219.
Further, in Gentile this Court discussed the important role of the First Amendment in guarding
against governmental abuses and held that the Amendment protected the right to collect and
disseminate information relating to governmental misconduct. Gentile, 501 U.S. at 1035. This
Court noted that because “[t]he public has an interest in [the] responsible exercise” of the
discretion granted to police and prosecutors, the “dissemination of information relating to alleged
governmental misconduct” is “speech which has traditionally been recognized as lying at the
core of the First Amendment.” Id. at 1034-35 (quoting Butterworth v. Smith, 494 U.S. 624, 632
(1990)). In particular, this Court noted that the First Amendment’s role in facilitating “[p]ublic
awareness and criticism have even greater importance where” the gathering and dissemination of
information “concern[s] allegations of police corruption.” Id. at 1035 (citing Nebraska Press
Assn. v. Stuart, 427 U.S. 539, 606 (1976) (Brennan, J., concurring in judgment).
4. The right to gather information about government activity includes the
right to create an audiovisual recording of the public conduct of government
officials, including the duties of police officers performed in public.
This Court has not specifically addressed the issue of recording the public conduct of
police officers. While two decisions from the Third and Fourth Circuits which suggest there may
not be a right to record police activities in some circumstances, there is a clear consensus among
the First, Seventh, Ninth, and Eleventh Circuits that the First Amendment right to gather news
includes the right to record police officers during the performance of their duties in public.
a. The weight of circuit and district court opinions favor finding that
the First Amendment protects the right to record police officers
performing their official duties in public places.
Relying on the jurisprudence of this Court discussed above, the First, Seventh, Ninth, and
Eleventh Circuit Courts, as well as District Courts in the Fifth and Sixth Circuits, all recognize
that the First Amendment right to gather news includes the right to record police officers during
the performance of their duties in public. see Alvarez, 679 F.3d 583; Glik, 655 F.3d 78; Smith v.
City of Cumming, 212 F.3d 1332 (11th Cir.2000); Fordyce v. City of Seattle, 55 F.3d 436 (9th
Cir.1995); see also Basler v. Barron, Case No. H-15-2254, 2016 WL 1672573 (S.D. Tex. Apr.
27, 2016); Buehler v. City of Austin, Case No. A-13-CV-1100-ML, 2015 WL 737031 (W.D. Tex.
Feb. 20, 2015); Crawford v. Geiger, 131 F. Supp. 3d 703 (N.D. Ohio Sept. 22, 2015), aff’d in
part, rev’d in part by Crawford v. Geiger, 656 Fed. App’x 190 (6th Cir. 2016).
The Seventh Circuit held the First Amendment protects the right of the public to record
law enforcement officers “engaged in their official duties in public places.” Alvarez, 679 F.3d at
608. At issue in Alvarez was the ACLU’s proposed “police accountability program,” which
would involve private citizens openly making audiovisual recordings of police officers while
they were on duty and in public spaces. Id. at 586-88. The ACLU asserted a First Amendment
“right to audio record events and communications that take place in traditional public fora like
streets, sidewalks, plazas, parks, and other open public spaces.” Id. at 589 n. 7. Prior to making
any recordings, the ACLU filed pre-enforcement action against the State’s Attorney, seeking to
enjoin the state from prosecuting the group under Illinois’ eavesdropping statute. Id. at 586.
The Illinois eavesdropping law criminalized “all audio recording of any oral
communication absent consent of the parties regardless of whether the communication is or was
intended to be private.” Id. at 595 (emphasis in original). The court objected to the “the
expansive reach of this statute” because, unlike other the eavesdropping or wiretapping statutes
in other states which only ban the “secret interception or surreptitious recording of a private
communication,” Illinois’ law applied “regardless of whether the communication is or was
intended to be private.” Id. The First Circuit observed that the Illinois law was notably unlike the
eavesdropping law in other states, noting that “[a]s best we can tell, the Illinois statute is the
broadest of its kind; no other wiretapping or eavesdropping statute prohibits the open recording
of police officers lacking any expectation of privacy.” Id. at 595 n.4. Consequently, the Seventh
Circuit held that the Illinois law “is hard to reconcile with basic speech and press freedoms” and
ruled that “the First Amendment limits the extent to which Illinois may restrict audio and
audiovisual recording of utterances that occur in public.” Id. at 595. Relying on much of the
precedent of this Court discussed above, as well as a discussion of the “historical understanding
of the First Amendment,” the Seventh Circuit court held there is a “quite strong” First
Amendment interest in making “nonconsensual audio[visual] recording of public officials
performing their official duties in public.” [1] Id. at 597-99. The court stated that
“[c]riminalizing all nonconsensual audio recording necessarily limits the information that might
later be published or broadcast—whether to the general public or to a single family member or
friend—and thus burdens First Amendment rights.” Id. at 597. Due to the procedural posture of
the case, the court did not rule on the merits of the plaintiff’s First Amendment challenge, but
concluded that “the ACLU has a strong likelihood of success on the merits of its First
Amendment claim” and consequently reversed the District Court’s dismissal of the case. Id. at
608.
The First Circuit addressed a similar challenge to Massachusetts’ wiretapping law in Glik
and likewise held that the First Amendment protects the right to videotape police carrying out
their duties in public. Glik, 655 F.3d at 82. The case involved a 42 U.S.C. § 1983 suit alleging a
First Amendment violation brought by an individual who used his cell phone to record an arrest
of a third party while in the Boston Common. One of the officers performing the arrest
“approached [the plaintiff] and asked if [his] cell phone recorded audio. When [the plaintiff]
affirmed that he was recording audio, the officer placed him in handcuffs, arresting him for, inter
alia, unlawful audio recording in violation of Massachusetts’s wiretap statute.” Id. at 80. The
court ruled for the plaintiff and recognized that the right to film government officials conducting
their duties in a public space is encompassed by the First Amendment’s protection of the right to
gather information on government officials or matters of public interest. Id. 82-84. The First
Circuit held that “[t]he filming of government officials engaged in their duties in a public place,
including police officers performing their responsibilities, fits comfortably within” this Court’s
established First Amendment jurisprudence. Id. at 82. Specifically, the court affirmed that a
“cardinal First Amendment interest [is] protecting and promoting ‘the free discussion of
governmental affairs.’” Id. at 82 (quoting Mills, 384 U.S. at 218). Considering this key function
of the First Amendment, the court remarked that it is “fundamental and virtually self-evident”
that the First Amendment protects the right to record government officials, including police
officers, performing their responsibilities in a public place. Id. at 85. Furthermore, the First
Circuit later held that the right to film the public conduct of police officers applies to filming
traffic stops, not just to recording the arrest of a third-party. Gericke v. Begin, 753 F.3d 1 (1st
Cir. 2014). In Gericke, the court held that “[a] traffic stop, no matter the additional
circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop does not
extinguish an individual’s right to film.” Gericke, 753 F.3d at 7.
The Ninth Circuit also acknowledged that the First Amendment protects the “right to film
matters of public interest,” which includes the public recording of police officers conducting
their official duties. Fordyce, 55 F.3d at 436. Fordyce involved a § 1983 action brought by a
plaintiff who was arrested while attempting to “videotape a public protest march” and “[a]mong
his subjects were the activities of the police officers assigned to work the event.” Id.at 438. One
of those officers observed the plaintiff using a video camera and “asked him whether the video
camera was recording voices and warned him that a Washington State statute forbade recording
private conversations without consent.” Id. at 439. The police asked the plaintiff to stop
recording, he refused and was arrested for violating Washington’s eavesdropping statute. Id. The
decision contains little discussion of the substance of the First Amendment claim, but simply
stated that for the purpose of reviewing an appeal of a summary judgement that “a genuine issue
of material fact does exist regarding whether [the plaintiff] was assaulted and battered by a
Seattle police officer in an attempt to prevent or dissuade him from exercising his First
Amendment right to film matters of public interest.” Id. A basic assumption of the court is that
the First Amendment protects a broad “right to film matters of public interest,” which includes
the videotaping “the activities of the police officers” in this case. Id. at 438-39. Various recent
District Court decisions in the Ninth Circuit have interpreted Fordyce as explicitly recognizing
“a First Amendment right to record police officers conducting their official duties.” Naveed v.
City of San Jose, Case No. 15-cv-05298-PSG, 2016 WL 2957147, at *4 (N.D. Cal. May 23,
2016); Barich v. City of Cotati, Case No. 15-cv-00350, 2015 WL 6157488, at *1 (N.D. Cal. Oct.
20, 2015); Crago v. Leonard, Case No. 13-cv-00531, 2014 WL 3849954, at *4 (E.D. Cal. Aug.
5, 2014). Additionally, the First Circuit relied on Fordyce’s recognition of the “right to film
matters of public interest” to hold that the First Amendment protects the right to record police
officers performing their official duties in public. Glik, 655 F.3d at 83 (citing, inter alia, Fordyce
and stating “[o]ur recognition that the First Amendment protects the filming of government
officials in public spaces accords with the decisions of numerous circuit and district courts”).
Additionally, the Eleventh Circuit has held that the First Amendment’s protection of the
right to gather information about public officials and to “record matters of public interest”
includes the right to “to photograph or videotape police conduct.” Smith, 212 F.3d at 1333.
However, Smith does not involve a challenge to an eavesdropping or wiretapping statute or
involve any arrest at all, rather the plaintiff’s 42 U.S.C. § 1983 suit merely alleges “that City
police had harassed” the plaintiffs and “prevented [the plaintiffs] from videotaping police
actions.” Id. at 1332. As there was no indication in the record that the plaintiffs were actually
deprived of their First Amendment right to videotape police activities, the court affirmed the
dismissal of the case. Id. at 1333.
Additionally, while there are no Circuit decisions directly addressing the First
Amendment right to record police activities in the Fifth Circuit, District Courts in that circuit has
held that the First Amendment protects the right to film police officers carrying out their duties
in public. Basler, 2016 WL at *3 (holding that the First Amendment protects the “right to record
the police without interfering in police activity”); Buehler, 2015 WL at *7 (holding that the First
Amendment “protects a private citizen’s right to…receive information on a matter of public
concern-such as police officers performing their official duties-and to record that information for
the purpose of conveying that information”). There are likewise no Circuit decisions in the Sixth
Circuit addressing the topic of recording the police, though the Northern District of Ohio held
that the First Amendment protected the right to openly to film police officers carrying out their
duties in public. Crawford, 131 F. Supp. 3d 703. The court noted that while “[t]he Supreme
Court and Sixth Circuit have not ruled specifically on the right of the public openly to film police
officers and their actions in a public setting,” “[o]ther circuit courts have, however, and have
ruled such a right exists.” Id. at 714. The Northern District discussed Alvarez, Glik, Smith, and
Fordyce and “agree[d] with those decisions and their holdings that there is a First Amendment
right openly to film police officers carrying out their duties in public.” Id.
b. A minority of Circuits have refused to recognize the First
Amendment right to record police conduct in some contexts.
The Third Circuit has held that there is no clearly established First Amendment right to
record police conduct during a traffic stop. Kelly v. Borough of Carlisle, 622 F.3d 248, 261-62
(3d Cir. 2010); but see Gericke, 753 F.3d at 7 (holding that “[a] traffic stop, no matter the
additional circumstances, is inescapably a police duty carried out in public. Hence, a traffic stop
does not extinguish an individual’s right to film” police conduct). However, far from holding that
there is in fact no right whatsoever under the First Amendment to record police conduct, the
Third Circuit simply acknowledged that there was not sufficient case law within the Third
Circuit to “provide a clear rule regarding First Amendment rights to obtain information by
videotaping under the circumstances presented here,” namely a traffic stop. Kelly, 622 F.3d at
262 (emphasis added). In fact, in a prior case the Third Circuit stated that the First Amendment
may protect “videotaping or photographing the police in the performance of their duties on
public property.” Gilles v. Davis, 427 F.3d 197, 212 n.14 (3d Cir. 2005) (emphasis added) (citing
Smith, 212 F.3d at 1333). This position was later adopted by a District Court in the Third Circuit,
which held that the First Amendment in fact protects the right to record public police activity,
specifically the “activities of Pennsylvania state troopers as they went about their duties on a
public highway” inspecting trucks. Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D.
Pennsylvania July 19, 2005). In Robinson, the District Court held that “[v]ideotaping is a
legitimate means of gathering information for public dissemination and… there can be no doubt
that the free speech clause of the Constitution protected [the plaintiff] as he videotaped” the state
police while they conducted truck inspections on a public highway. Robinson v. Fetterman, 378
F. Supp. 2d at 541.
Finally, in an unpublished per curiam opinion, the Fourth Circuit declare that the “First
Amendment right to record police activities on public property was not clearly established in [the
Fourth] circuit at the time of the alleged conduct.” Szymecki v. Houck, 353 F. App’x 852, 853
(4th Cir. 2009) (per curiam). In Szymecki, without any discussion of the underlying facts or
controlling law, the court simply stated “[w]e have thoroughly reviewed the record and the
relevant legal authorities and we agree” with the lower court that the “asserted First Amendment
right to record police activities on public property was not clearly established in this circuit at the
time of the alleged conduct.” Id. However, five years later a District Court in the Fourth Circuit
held that the “right to record public police activities… if done peacefully and without interfering
with the performance of police duties, is protected by the First Amendment.” Garcia v.
Montgomery Cty., Maryland, 145 F. Supp. 3d 492, 508 (D. Maryland Nov. 2, 2015). In Garcia, a
photojournalist “was video recording [Montgomery County Police Department officers] as they
effected the arrest of two other people” and was himself arrested for disorderly conduct. The
court relies on Branzburg, Houchins, Mills, and First Nat’l Bank decisions – as well as the
Circuit Court cases of Alvarez, Gilk, Smith, and Fordyce – to conclude that there is a First
Amendment “right to record public police activities…if done peacefully and without interfering
with the performance of police duties.” Id. at 506-08. Nonetheless, the District Court
acknowledges, as it must, that the Fourth Circuit in Szymecki, “in its only foray into this area,
affirmed in an unpublished opinion” that the right to record public police activities was not
clearly established in the Fourth Circuit as of 2009, the year Szymecki was decided. Id. at 508-09.
However, the District Court argues that “based on the fairest reading of Supreme Court
precedent, and the great weight of authority from other circuits, it seems fairly well-settled in
2015 that there is a First Amendment right to video record police officers as they carry out their
public duties.” Id. at 509 (emphasis added).
Reliance on Kelly is misplaced because, in addition to being undercut by other decisions
within the Third Circuit, the circumstances of that case are drastically distinct from the present
facts. Far from the “inherently dangerous” situation of a traffic stop, Ms. Lockwood attempted to
record police activity occurring in a public park. Kelly, 622 F.3d at 262; see Glik, 655 F.3d at 85
(distinguishing the facts of Kelly noting that a traffic stop is “worlds apart” from the “arrest on
the Boston Common” involved in Glik). Similarly, Szymecki is of questionable precedential
value as it is an unpublished opinion which contains no substantive legal analysis and is likewise
undermined by decisions within the Fourth Circuit. see Glik, 655 F.3d at 85 (“unpublished
opinions have no precedential force and the absence of substantive discussion deprives Szymecki
of any marginal persuasive value it might otherwise have had.”) (citations and internal quotation
marks omitted). Overall, neither Kelly nor Szymecki undermines the agreement among the
circuits which have substantively addressed the precise issue in this case, namely whether there
is a First Amendment right to record public police conduct. see Alvarez, 679 F.3d 583; Glik, 655
F.3d 78; Smith, 212 F.3d 1332; Fordyce, 55 F.3d 436.
B. The government may, subject to intermediate scrutiny, impose content-neutral
restrictions on the First Amendment right to record the public conduct of police
officers during the performance of their duties.
While laws which restrict the content of protected speech are “presumptively invalid” and
must survive strict scrutiny, the state may impose content-neutral regulations on speech protected
by the First Amendment which are subject to intermediate scrutiny. R.A.V. v. St. Paul, 505 U.S.
377, 382 (1992) (“Content-based regulations are presumptively invalid”); Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622, 642 (1994) (“regulations that are unrelated to the content of speech
are subject to an intermediate level of scrutiny”) (citations omitted). This Court has used slightly
different formulations of the intermediate scrutiny standard depending on the type and the
location of the protected speech. R.A.V., 505 U.S. at 427 (“The Court has recognized
intermediate categories of speech (for example, for indecent nonobscene speech and commercial
speech) and geographic categories of speech (public fora, limited public fora, nonpublic fora)
entitled to varying levels of protection”); see Alvarez, 679 F.3d at 604-05 (discussing that the
“several variations of intermediate scrutiny” depends on whether the challenged law restricts
speech “in the campaign-finance context,” commercial speech, or speech in “traditional public
fora”). Generally, to survive intermediate scrutiny a law restricting protected First Amendment
conduct must be content neutral, advance an important government interest, and have “a
reasonably close fit between the law’s means and its ends.” Alvarez, 679 F.3d at 605 (citing Bd.
of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989); Ward v. Rock Against Racism,
491 U.S. 781, 799 (1989); United States v. O’Brien, 391 U.S. 367, 376–77 (1968)).
For example, the Seventh Circuit held the Illinois eavesdropping statute at issue in
Alvarez was “subject to heightened First Amendment scrutiny” because restricted conduct
protected by the First Amendment, namely the “gathering and dissemination of information
about government officials performing their duties in public.” Alvarez, 679 F.3d at 600. The
court noted that since the law was content-neutral, the state would likely have to justify the
eavesdropping statute’s restriction of the ability to record the public conduct of police officers
“under some form of intermediate scrutiny.” Id. at 604. While the Illinois eavesdropping statute
was content-neutral, the Seventh Circuit stated that it nonetheless “very likely fails” the other
elements of the intermediate scrutiny standard. Id. at 605. In light of this Court’s ruling in
Bartnicki, the Seventh Circuit acknowledged that the protection of “conversational privacy” is
“easily an important governmental interest.” Id. (citing Bartnicki, 532 U.S. at 532). However,
this Court has also long recognized that there is not a reasonable expectation of privacy in
“[w]hat a person knowingly exposes to the public.” Katz v. United States, 389 U.S. 347, 351
(1967). This includes “conversations in the open” which are not “protected against being
overheard.” Katz, 389 U.S. at 361 (Harlan, J., concurring). Therefore the Seventh Circuit held
that the eavesdropping statute did not actually serve the government’s interest in protecting
“conversational privacy” because those privacy concerns are simply not implicated by
“record[ing] police officers performing their duties in public places and speaking at a volume
audible to bystanders.” Alvarez, 679 F.3d at 605. Further, considering the broad scope of the
Illinois eavesdropping law the court denied that the law was a reasonably close fit between the
law’s means and its ends. Id. at 606. The Seventh Circuit noted that the state did not remotely
attempt “to tailor the statutory prohibition to the important goal of protecting personal privacy,”
but rather the law “banned nearly all audio recording without consent of the parties—including
audio recording that implicates no privacy interests at all.” Id. (emphasis in original). Therefore
the court held that by “making it a crime to audio record any conversation, even those that are
not in fact private…the State has severed the link between the eavesdropping statute’s means and
its end.” Id. (emphasis in original)
Regarding the state’s interest in ensuring effective law enforcement, the First Circuit
flatly rejected the possibility that exercising the right to film the public conduct of police officers
would interfere with that interest. Relying on City of Houston, the First Circuit held that “police
officers are expected to endure significant burdens caused by citizens’ exercise of their First
Amendment rights.” Glik, 655 F.3d 78 at 84 (citing City of Houston v. Hill, 482 U.S. 451, 461
(1987) (“[T]he First Amendment protects a significant amount of verbal criticism and challenge
directed at police officers.”)). The court held that “[t]he same restraint demanded of law
enforcement officers in the face of ‘provocative and challenging’ speech must be expected when
they are merely the subject of videotaping that memorializes, without impairing, their work in
public spaces.” Id. at 84. (citations omitted). The court noted that the plaintiff in Glik “filmed
[the officers] from a comfortable remove” and “neither spoke to nor molested them in any way”
(except in directly responding to the officers when they addressed him).” Id. Therefore the court
concluded that exercising the right to record police officers does not pose a risk of impairing the
ability of the police to perform their duties, so long as the recording is conducted while in a
public space, a “comfortable” distance from the police, and in a non-confrontational manner. Id.
Additionally, the ability of the state to limit First Amendment activity which occurs in
“quintessential public forums” – public spaces such as public streets and parks – is “sharply
circumscribed.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983)
(citing Hague v. CIO, 307 U.S. 496, 515 (1939)). As a result, this Court has long applied a more
searching version of intermediate scrutiny to laws limiting First Amendment activity which
occurs in traditional public forums. see e.g. Ward, 491 U.S. 781. The state may only regulate
protected First Amendment conduct which occurs in traditional public forums by imposing
“reasonable restrictions on the time, place, or manner” in which the protected activities can be
conducted. Id. at 791. To survive judicial scrutiny, regulations of the time, place, and manner of
speech in public forums must be content-neutral, advance a “significant government interest,” be
“narrowly tailored” to serve that interest, and “leave open ample alternative channels of
communication.” Perry Educ. Ass’n, 460 U.S. 45; Clark v. Community for Creative Non-
Violence, 468 U.S. 288, 293 (1984).
If an individual exercises their First Amendment right to record a police officer
performing their duties while they are in a public park or street, the public forum doctrine applies
and the state may impose reasonable time, place, and manner restrictions. Smith, 212 F.3d at
1333 (holding that the plaintiffs “had a First Amendment right, subject to reasonable time,
manner and place restrictions, to photograph or videotape police conduct”). For example, the
plaintiff in Glik was charged with violating Massachusetts’ wiretapping law after he “filmed the
defendant police officers in the Boston Common, the oldest city park in the United States and the
apotheosis of a public forum.” Glik, 655 F.3d 78 at 84. The First Circuit held that the plaintiff’s
“exercise of his First Amendment rights fell well within the bounds of” the public forum doctrine
because it was a “peaceful recording of an arrest in a public space.” Id.
C. Craven Gen. Stat. Section 15A-287 is an unconstitutional restriction on the First
Amendment right to record police officers performing their duties in public because
it fails intermediate scrutiny.
As a content-neutral restriction on protected First Amendment conduct, namely the right
to record the public conduct of police officers, Craven Gen. Stat. Section 15A-287 is subject to
intermediate scrutiny. As discussed above, to survive this level of scrutiny, generally the statute
must advance an important government interest and have “a reasonably close fit between the and
its ends.” Alvarez, 679 F.3d at 605. Insofar as the law also restricts protected First Amendment
conduct exercised in a public forum, the statute must serve a “significant government interest,”
be “narrowly tailored” to serve that interest, and “leave open ample alternative channels of
communication.” Perry Educ. Ass’n, 460 U.S. 45. In the present case, Craven Gen. Stat. Section
15A-287 clearly fails intermediate scrutiny because, the seeks to advance the government’s
important interest in protecting conversational privacy, the law expressly bans the recording of
conversations which are not actually private and therefore Section 15A-287 is not remotely
tailored to fit its purported ends.
Per this Court’s ruling in Bartnicki, protecting the “[p]rivacy of communication is an
important [governmental] interest.” Bartnicki, 532 U.S. at 532. However, as noted by the
Thirteenth Circuit below, Section 15A-287 is “extremely broad, applying even in public places
where there is no reasonable expectation of privacy.” R. 11. (stating that Craven Gen. Stat.
Section 15A-287 “broadly defines ‘conversation’ to include ‘any oral communication between
two or more persons regardless of whether one or more of the parties intended their
communication to be of a private nature’”) (emphasis added). Consequently the Craven
eavesdropping statute is not sufficiently tailored to advance the important government interest in
protecting conversational privacy. In this respect, Craven Gen. Stat. Section 15A-287 is
essentially identical to the Illinois eavesdropping law at issue in Alvarez, which also “banned
nearly all audio recording without consent of the parties—including audio recording that
implicates no privacy interests at all.” Alvarez, 679 F.3d 606 (emphasis in original). In fact, as
with the Illinois statute in Alvarez, far from having a “reasonably close fit” between its means
and ends, Section 15A-287’s blanket ban on recording even non-private conversations
completely “severe[s] the link between the eavesdropping statute’s means and its end.” Id.
Further, in the present case both Lockwood herself and the police action she was
recording were in a public forum – namely “Diagon Park” which is “one of the largest open
spaces in the town” of St. Mungo, Craven and has been used by “community activists who had
developed a community garden in the park.” R. 2; see Hague, 307 U.S. at 515 (defining public
forums broadly to include public streets, parks, and other similar areas which “have
immemorially been held in trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between citizens, and discussing public
questions”). In addition to recording the actions of the police taking place in a public forum –
namely the police’s attempts to forcibly remove protestors from Diagon Park – Lockwood
conducted the recording in a non-confrontational manner and without impairing the
performances of the officer’s duties. R. 3 (stating after Lockwood was informed she was
violating § 15A-287 she “immediately stopped recording” and had no other interactions with the
police performing the arrests in the park). The circumstances of the present case are also directly
comparable to the facts in Glik and Fordyce, both of which also involved plaintiffs who were
charged with violating state eavesdropping or wiretapping laws after they recorded police
conduct while in a public forum. Glik, 655 F.3d at 84 (where the plaintiff “filmed the defendant
police officers in the Boston Common, the oldest city park in the United States and the
apotheosis of a public forum.”); Fordyce, 55 F.3d at 438 (the plaintiff attempted to videotape the
“activities of the police officers assigned to” monitor a “public protest march” down public
streets). Given the clear factual similarities with Glik and Fordyce, it is evident that Lockwood’s
exercise of her First Amendment to record public police conduct “fell well within the bounds of
the Constitution’s protections” the public forum doctrine. Glik, 655 F.3d 78 at 84.
CONCLUSION
For the reasons stated above, the Court should reverse the judgment of the United States Court of
Appeals for the Fourteenth Circuit.
Respectfully submitted,
/s/ _____________________
Counsels for the Respondent
January 9, 2017