Sharpe v. Winterville Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

EASTERN DIVISION

No. 4:19-CV-157-D

DIJON SHARPE, )

)

Plaintiff, )

)

V. )

) ORDER

OFFICER WILLIAM BLAKE ELLIS, ) '

in his official capacity, and )

OFFICER MYLES PARKER HELMS IV, +)

in his official capacity, )

)

Defendants. )

On October 9, 2018, Dijon Sharpe (“Sharpe” or “plaintiff”) was a passenger in a car that

Town of Winterville police officers William Blake Ellis (“Ellis” or “defendant”) and Myers Parker

Helms IV (“Helms” or “defendant”) properly stopped for a traffic violation. As the police officers

approached the car, Sharpe began recording and livestreaming the traffic stop from inside the car.

Officer Helms told Sharpe that he could record the traffic stop from inside the car during the traffic .

stop but not livestream the traffic stop from inside the car during the traffic stop. Sharpe now seeks

damages from the officers and the Town of Winterville and contends that the officers and the Town

of Winterville violated 42 U.S.C. § 1983 and the First Amendment by only allowing Sharpe to

record the traffic stop from inside the car during the traffic stop.

As explained below, assuming without deciding that the First Amendment entitled Sharpe

to record the traffic stop from inside the car during the traffic stop, the First Amendment did not

entitle Sharpe to livestream the traffic stop from inside the car during the traffic stop. Thus,

defendants did not violate the First Amendment, and the court grants defendants’ motion for

judgment on the pleadings. The court also denies as moot Sharpe’s motion for entry of judgment.

|

Sharpe resides in Pitt County, North Carolina. See Compl. [D.E. 1] 7. On October 9, 2018,

Helms and Ellis, as officers of Winterville Police Department (“WPD”), properly stopped a car for

atraffic violation. Sharpe was riding in the front passenger seat of the car. See id. [J 19-20. While

still in the car and during the traffic stop, Sharpe “turned on the video recording function of his

smartphone and began livestreaming—broadcasting in real-time—via Facebook Live to his

Facebook account.” Id. § 22. During the traffic stop, Helms approached the car and asked Sharpe

his name, which Sharpe declined to provide. See id. 24. Helms and Ellis then returned to their

patrol car. See id. { 25. When Helms returned to Sharpe’s car, he asked Sharpe, “What have we

got? Facebook Live, cous?” Id. { 27 (alteration omitted); see P1.’s Ex. A [D.E. 1-2] 17. Sharpe

responded: “Yeah.” P1.’s Ex. A [D.E.1-2] 17; see Compl. 128. Helms reached into the car through

the open window and attempted to grab Sharpe’s phone, pulling on his seatbelt and shirt in the

process. See Compl. 28. Helms stated, “We ain’t gonna do Facebook Live, because that’s an

officer safety issue.” Pl.’s Ex. A [D.E. 1-2] 17. Later, Ellis remarked: “Facebook Live . . . we're

not gonna have, okay, because that lets everybody y’all follow on Facebook [know] that we’re out

here. There might be just one me next time [sic] . . . It lets everybody know where y’all are at.

not gonna have that.” Id. at 19-20.' Ellis continued: “If you were recording, that is just fine

.... We record, too. So in the future, if you’re on Facebook Live, your phone is gonna be taken

from you[] . . . [aJnd if you don’t want to give up your phone, you’ ll go to jail.” Id. at 20. Towards

the end of the stop, Ellis stated, “But to let you know, you can record on your phone . . . but

Facebook Live is not gonna happen.” Id. at 21.

1 Ellis was correct. See Compl. { 23; □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ □□

2251012878304654/ (last visited Aug. 14, 2020) (listing “Realtime Comments” including, inter alia,

“Keep your live on,” “It keep pausing,” “Where ya’ll at,” “What kind of bull is going on now,” “Did

he just grab your phone!???,” and “Handle it once it’s off”). Sharpe has since deleted the video.

In his complaint, Sharpe makes two claims. First, Sharpe alleges a violation of 42 U.S.C.

§ 1983 and the First Amendment against Helms and Ellis, in their official capacities, and WPD. See

Compl. 37-43. As for Helms and Ellis, Sharpe contends that they “physically attacked” him and

“threatened to deprive” him of his First Amendment right to record and real-time broadcast his

interactions with law enforcement. Id. | 40. As for WPD, Sharpe cites Monell v. Department of

Social Services of New York, 436 U.S. 658 (1978), and alleges “an unconstitutional policy, custom,

or practice of preventing citizens from recording and livestreaming their interactions with police

officers in the public performance of their duties.” Id. ]41. Second, Sharpe alleges a violation of

section 1983 and the First Amendment against Helms in his individual capacity. See id. {| 44-48.

Specifically, Sharpe asserts that “[t]he physical attack by Officer Helms on Mr. Sharpe” violated the

First Amendment. Id. J 47; see [D.E. 19] 6-8.

On February 3, 2020, the defendants moved to dismiss the claims against WPD and ayainet

Helms in his individual capacity. See [D.E. 15]. On August 20, 2020, after briefing and oral

argument, the court dismissed with prejudice Sharpe’s claims against WPD and Helms in his

individual capacity, holding that WPD is not an entity that may be sued under North Carolina law

and that qualified immunity barred Sharpe’s claim against Helms. See [D.E. 33] 4-6, 12-13.

Sharpe’s remaining claims are against Helms and Myers in their official capacities (which

really means the claims are against the Town of Winterville). Sharpe seeks nominal damages,

reasonable attorney’s fees, costs, and a declaratory judgment concerning whether during the traffic

stop and from inside the stopped car Sharpe “has the right, protected by the First Amendment...

to both (a) record police officers in the public performance of their duties and (b) broadcast such

recording in real-time.” Compl. at 8. Defendants seek judgment on the pleadings on Sharpe’s

remaining claims. See [D.E. 36].

II.

A.

A party may move for judgment on the pleadings at any time “[al]fter the pleadings are

closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c). A court should grant the motion

ifthe moving party has clearly established that no material issue of fact remains to be resolved and

the party is entitled to judgment as a matter of law.” Park Univ. Enters., Inc. v. Am. Cas. Co. of

Reading, 442 F.3d 1239, 1244 (10th Cir. 2006) (quotation omitted), abrogated on other grounds by

Magnus, Inc. v. Diamond State Ins. Co., 545 F. App’x 750 (10th Cir. 2013) (unpublished); see

Mayfield v. Nat’] Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 375 (4th Cir. 2012); Burbach

Broad. Co. of Del. v. Elkins Radio Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). A court may

consider the pleadings and any materials referenced in or attached to the pleadings, which are

incorporated by reference. See Fed. R. Civ. P. 10(c); Fayetteville Invs. v. Com. Builders, Inc., 936

F.2d 1462, 1465 (4th Cir. 1991). A court also may consider “matters of which a court may take

judicial notice.” Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007).

The same standard applies under Rule 12(c) and Rule 12(b)(6). See Mayfield, 674 F.3d at

375; Burbach Broad. Co., 278 F.3d at 405-06. Thus, a motion under Rule 12(c) tests the legal and

factual sufficiency of the claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 684 (2009); Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 554-63 (2007); Coleman v. Md. Court of Appeals, 626 F.3d

187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th

Cir. 2008). To withstand a Rule 12(c) motion, a pleading “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 □

(quotation omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the

motion, the court must construe the facts and reasonable inferences in the “light most favorable to

the [nonmoving party].” Massey v. Ojaniit, 759 F.3d 343, 347, 352-53 (4th Cir. 2014) (quotation

omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on

other grounds by Reed v. Town of Gilbert, 576 U.S. 155 (2015); Burbach Broad. Co., 278 F.3d at

406. A court need not accept as true a complaint’s legal conclusions, “unwarranted inferences,

unreasonable conclusions, or arguments.” Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal,

\556 U.S. at 678-79. Rather, a plaintiff's allegations must “nudge[] [his] claims,” Twombly, 550

U.S. at 570, beyond the realm of “mere possibility” into “plausibility.” Iqbal, 556 U.S. at 678—79.

B.

Sharpe’s remaining claims are section 1983 claims against Helms and Myers in their official

capacities. To prevail on a section 1983 claim, a plaintiff must show that he was “deprived of aright

secured by the Constitution or laws of the United States, and that the alleged deprivation was

committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999); see Thomas v. Salvation Army S. Territory, 841 F.3d 632, 637 (4th Cir. 2016); Lytle v.

Doyle, 326 F.3d 463, 471 (4th Cir. 2003).

Sharpe’s claims against Helms and Myers in their official capacities are really claims against

the Town of Winterville. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Santos v.

Frederick Cnty. Bd. of Comm’rs, 725 F.3d 451, 469 (4th Cir. 2013); Ridpath v. Bd. of Governors

Marshall Univ., 447 F.3d 292, 307 n.13 (4th Cir. 2006); Love-Lane v. Martin, 355 F.3d 766, 783

(4th Cir. 2004). Accordingly, Sharpe must plausibly allege that a “policy or custom” attributable to

Town of Winterville caused the violation of his federally protected rights. See Bd. of Cnty.

Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Hafer v. Melo, 502 U.S. 21, 25 (1991); Graham, 473

USS. at 166; Monell, 436 U.S. at 690-94; King v. Rubenstein, 825 F.3d 206, 223 (4th Cir. 2016);

Santos, 725 F.3d at 469-70.

The court assumes without deciding that Sharpe has plausibly alleged a policy or custom

attributable to the Town of Winterville under Moneil that prohibited a person during a traffic stop

and from inside the stopped car to livestream the traffic stop. Cf. Lytle, 326 F.3d at 471 (detailing

the four ways in which liability for a policy or custom may arise). Sharpe, however, still must

demonstrate that the alleged policy deprived Sharpe of a right secured by the Constitution or laws

of the United States on October 9, 2018. See, e.g., Sullivan, 526 U.S. at 49-50.

Sharpe claims that the Town of Winterville’s alleged policy or custom deprived him of his

First Amendment right on October 9, 2018. According to Sharpe, during the traffic stop and from

inside the stopped car, he possessed a First Amendment right to “record police in the public

performance of their duties and to broadcast such recordings in real-time.” Compl. | 35 (emphasis

added); cf. Pl’s Ex. A [D.E. 1-2] 20-21 (recounting that Helms and Meyers told Sharpe he could

record, but was not allowed to livestream).

The First Amendment provides that “Congress shall make no law . . . abridging the freedom

of speech, or of the press.” U.S. Const. amend. I. The First Amendment’s protections extend

beyond the text’s proscriptions on laws abridging freedom of speech or of the press and encompass

“a range of conduct related to the gathering and dissemination of information.” Glik v. Cunniffe,

655 F.3d 78, 82 (1st Cir. 2011); see First Nat’] Bank v. Bellotti, 435 U.S. 765, 783 (1978); Stanley

v. Georgia, 394 U.S. 557, 564 (1969); Turner v. Lieutenant Driver, 848 F.3d 678, 688-89 (Sth Cir.

2017). The First Amendment generally “prohibit{s] the government from limiting the stock of

information from which members of the public may draw.” First Nat’1 Bank, 435 U.S. at 783; see

Turner, 848 F.3d at 688. The First Amendment protects a right to gather information “from any

source by means within the law.” Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (quotation

omitted); see Glik, 655 F.3d at 82. Gathering information about government officials in a form that

can be readily fiesemnaied “serves a cardinal First Amendment interest in protecting and promoting

the free discussion of governmental affairs.” Gericke v. Begin, 753 F.3d 1, 7 (1st Cir. 2014)

(quotation omitted); see Mills v. Alabama, 384 U.S. 214, 218-19 (1966); cf. Tobey v. Jones, 706

F.3d 379, 391 (4th Cir. 2013). “Protecting that right of information gathering not only aids in the

uncovering of abuses, but also may have a salutary effect on the functioning of government more

generally.” Gericke, 753 F.3d at 7; see Project Veritas Action Fund v. Rollins, 982 F.3d 813, 831

(1st Cir. 2020), petition for cert. filed, (U.S. May 17, 2020) (No. 20-1598).

Several federal circuit courts have held that the First Amendment generally protects the right

to record the police in performing their public duties. See Fields v. City of Phila., 862 F.3d 353,

355—56, 358-60 (3d Cir. 2017) (taking pictures with a camera and iPhone camera); Turner, 848 F.3d

at 683-84, 690 (videotaping); Gericke, 753 F.3d at 3-4, 7-9 (“audio-video record[ing]” with a

camera); Am. Civ. Liberties Union of IIL v. Alvarez, 679 F.3d 583, 595-97 (7th Cir. 2012) (“[a]udio

recording”); Glik, 655 F.3d at 79-80, 82-83 (video recording on cell phone); Smith v. City of

Cumming, 212 F.3d 1332, 1332-33 (11th Cir. 2000) (videotaping); Fordyce v. City of Seattle, 55

F.3d 436, 438 (9th Cir. 1995) (same). This court agrees with that general principle and assumes .

without deciding that on October 9, 2018, the First Amendment entitled Sharpe to record the traffic

stop from inside the car during the traffic stop. However, the United States Court of Appeals for the

Fourth Circuit has not yet addressed whether the First Amendment protects the right to record the

police in performing their public duties, let alone whether the First Amendment protects the right '

of a person from inside a stopped car to livestream the police performing a traffic stop. See

Szymecki v. Houck, 353 F. App’x 852, 852 (4th Cir. 2009) (per curiam) (unpublished); Hulbert v.

Pope, No. SAG-18-00461, 2021 WL 1599219, at *8 (D. Md. Apr. 22, 2021) (unpublished), appeal

docketed, No. 21-1608 (4th Cir. May 24, 2021).

Sharpe contends that the cases from other federal circuit courts holding that the First

Amendment includes a right to record the police performing their public duties established his right

to livestream the traffic stop from inside the stopped car on October 9, 2018. See Compl. T¥] 35-36;

[D.E. 39] 6-10. These cases, however, do not address, much less resolve Sharpe’s claim. Recording

a traffic stop for publication after the traffic stop versus livestreaming an ongoing traffic stop from

inside the stopped car during the traffic stop are significantly different. See [D.E. 33] 9-11

(describing the significant differences between recording and livestreaming). Indeed, during the

traffic stop, Ellis made precisely this distinction. Ellis told Sharpe he could record the traffic stop □

, .

from inside the stopped car during the traffic stop, but that he could not livestream it. See P1.’s Ex.

A[D.. 1-2] 19-20. Notably, recording a public interaction with the police preserves that interaction

for the recorder’s later use. In contrast, livestreaming the interaction from inside the stopped car

during the traffic stop contemporaneously broadcasts the interaction to another recipient. Moreover,

broadcasting the interaction from inside the stopped car during the traffic stop in real-time with

contemporaneous geolocation information conveys both the interaction and the location where it is

occurring. Furthermore, contemporaneous messaging allows the individual livestreaming, and those

watching, to know the location of the interaction, to comment on and discuss in real-time the

interaction, and to provide the perspective from inside the stopped car. The perspective from inside

the stopped car, for example, would allow a viewer to see weapons from inside the stopped car that

an officer might not be able to see and thereby embolden a coordinated attack on the police.

Although Sharpe cites cases recognizing a First Amendment right to record the police performing

their public duties, Sharpe cites no authority to support his contention that on October 9, 2018, the

First Amendment provided a right to livestream a traffic stop from inside the stopped car during the

traffic stop. Cf. [D.E. 39] 6-7.

As mentioned, the Fourth Circuit has not yet recognized a First Amendment right to record

police performing their public duties, much less to livestream a traffic stop from inside the stopped

car during the traffic stop. Cf. Szymecki, 353 F. App’x at 852. Tellingly, even the federal circuit

courts that have recognized a right to record the police performing their public duties have explicitly

declined to address “the limits of this constitutional right.” Fields, 862 F.3d at 360; see Turner, 848

F.3d at 690; Gericke, 753 F.3d at 7-9. For example, the Third Circuit opined that an activity

“interfer[ing] with police activity” such that the recording “put[s] a life at stake” might not be

protected. Fields, 862 F.3d at 360. Likewise, the United States District Court for the District of

Maryland recognized the First Amendment right to record police performing their public duties, but

held that such recording is subject to time, place, and manner restrictions. See Hulbert, 2021 WL

1599219, at *8. In light of existing precedent and the differences between recording and

livestreaming from inside the stopped car during the traffic stop, the court rejects Sharpe’s argument

that the First Amendment provided him a right to livestream a traffic stop from inside the stopped

car on October 9, 2018. Accordingly, the court holds that Sharpe has failed to allege a deprivation

ofa right secured by the Constitution or laws of the United States on October 9, 2018. Thus, the

court grants defendants’ motion for judgment on the pleadings.

Alternatively, Sharpe’s claim fails because the alleged policy survives intermediate scrutiny.

The validity of Sharpe’s section 1983 claim hinges on his allegations that the Town of Winterville

has an unconstitutional policy that prohibited Sharpe from livestreaming his encounter with the

police officer during the traffic stop from inside the stopped car on October 9, 2018. See Compl.

As alleged, this policy restricted protected speech in public fora, and the court applies the

“time, place, and manner doctrine” to determine whether the policy violates the First Amendment.

Ross v. Early, 746 F.3d 546, 552 (4th Cir. 2014); see Fields, 862 F.3d at 360; Turner, 848 F.3d at

690; Gericke, 753 F.3d at 7-9; Alvarez, 679 F.3d at 605; Glik, 655 F.3d at 84; Smith, 212 F.3d at

1333. The policy is content-neutral because it is “justified without reference to the content of the

regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quotation omitted);

see Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). Accordingly, the court

analyzes whether the policy is “narrowly tailored to serve a significant governmental interest, and

... leave[s] open ample alternative channels for communication of the information.” Ward, 491

U.S. at 791 (1989) (quotation omitted); see Clark, 468 U.S. at 293; Ross, 746 F.3d at 552. A policy

is narrowly tailored if it rome a substantial government interest” and “does not burden

substantially more speech than is necessary to further the government’s legitimate interests.” Ross,

746 F.3d at 552-53; see Ward, 491 U.S. at 791, 799; United States v. Albertini, 472 U.S. 675, 689

(1985).

The court first determines whether the alleged policy promotes “a substantial government

interest.” Here, the alleged purpose of the policy is officer and public safety. See Pl.’s Ex. A [D.E.

1-2] 17, 19-20 (Helms anid Meyers told Sharpe that he could not livestream from inside the car

during the traffic stop because livestreaming threatens officer and public safety).? The public has

a “paramount interest in officer safety” and public safety. United States v. Stanfield, 109 F.3d 976,

979-80 (4th Cir. 1997); see Wilson, 519 U.S. at 412 (stating that the public interest in officer safety

is “both legitimate and weighty” (quotation omitted)); Mahoney v. Sessions, 871 F.3d 873, 882 (9th

Cir. 2017). Indeed, this substantial interest in officer and public safety is more pronounced during

traffic stops where the Supreme Court repeatedly has recognized that police officers face unique

dangers and that those dangers carry over to the public. See Rodriguez v. United States, 575 U.S.

348, 356-57 (2015); Johnson, 555 U.S. at 330-32; Wilson, 519 U.S. at 413-14; Michigan v. Long,

463 U.S. 1032, 1047-48 (1983).

2 “TW]hen it is obvious that a challenged law serves a significant governmental interest, . .

. the government [is not required] to produce evidence” demonstrating that the law serves a

substantial government interest. Billups v. City of Charleston, 961 F.3d 673, 685 (4th Cir. 2020).

Rather, the government may demonstrate a significant interest “by reference to case law.” Reynolds

v. Middleton, 779 F.3d 222, 228 & n.4 (4th Cir. 2015). Here, the pleadings and case law

demonstrate that the Town of Winterville’s policy serves its substantial interest in officer and public

safety. A review of Sharpe’s video indicates that Sharpe’s livestreaming from inside the stopped car

permitted live broadcast from inside the car of the officers’ movements, the perspective from within

the stopped car, real-time comments from viewers, and geolocation data. See https://www.

facebook.com/d.r.sharpe/videos/ 2251012878304654/ (last visited Aug. 14, 2020). These features

undermine an officer’s ability to exercise “command of the” traffic stop, thereby increasing the risks

to officers and the public. Arizona v. Johnson, 555 U.S. 323, 330 (2009); see Maryland v. Wilson,

519 U.S. 408, 414 (1997); Michigan v. Summers, 452 U.S. 692, 702-03 (1981); see also United

States v. Fager, 811 F.3d 381, 388-89 (10th Cir. 2016) (describing the increased threat of

“coordinated attack[s]” on officers in the context of traffic stops); Bureau of Justice Assistance,

Developing a Policy on the Use of Social Media in Intelligence and Investigative Activities:

Guidance and Recommendations 1 (2013), https://bja.ojp.gov/ sites/g/files/xyckuh 1 86/files/media/

document/developing a policy _on_the use of _social_media_in intelligence_and_inves.pdf □□□□□

visited July 9, 2021) (“Social media sites are increasingly being used to instigate or conduct criminal

activity[.]”). Accordingly, the alleged policy serves the substantial government interest of protecting

officer and public safety because the policy eliminates a form of individual conduct from inside the

stopped car that increases risks to officer and public safety. See Ross, 746 F.3d at 555-56.

10

Next, the court determines whether the policy “burdens substantially more speech than is

necessary to further the government’s legitimate interests.” Ross, 746 F.3d at 557 (alteration and

quotation omitted). To satisfy this standard, the alleged policy need not be “the least restrictive or

least intrusive means.” Ward, 491 U.S. at 798; see Turner, 848 F.3d at 690; Reynolds, 779 F.3d at

226. “So long as the means chosen are not substantially broader than necessary to achieve the

government’s interest . . . the regulation will not be invalid simply because a court concludes that

the government’s interest could be adequately served by some less-speech-restrictive alternative.”

Ward, 491 U.S. at 800; see Am. Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707, 717 (4th

Cir. 2018); Ross, 746 F.3d at 557. Moreover, a policy is not “invalid simply because there is some

imaginable alternative that might be less burdensome on speech.” Albertini, 472 U.S. at 689.

Viewing the pleadings in the light most favorable to Sharpe, the alleged policy prohibited

livestreaming a police encounter from inside the stopped car during the traffic stop. As such, the

policy is limited in scope and duration in that it only prohibited livestreaming from inside the

stopped car during the traffic stop. Notably, the policy does not ban recording police officers from

inside the stopped car during the traffic stop. See Pl.’s Ex. A [D.E. 1-2] 20-21 (‘If you were

recording, that is just fine .... We record, too.”). The policy also does not prohibit a person who

is not the subject of the traffic stop and who is not inside the stopped car from recording and

livestreaming the traffic stop. Accordingly, “[o]n its face, the [p]olicy does no more than target and

eliminate the exact source of the evil it seeks to remedy.” Ross, 746 F.3d at 557 (alterations and

quotations omitted); see Frisby v. Schultz, 487 U.S. 474, 485 (1988). Given the substantial officer

and public safety interest, the policy achieves the government’s substantial interest by increasing

officers’ command of those inside the stopped car during the traffic stop by removing features such

as live video, real-time commenting, and geolocation data, from being used from inside the stopped

car to coordinate an attack on the officers and the public. “[T]herefore, it is apparent that the [policy]

directly furthers the [Town’s] legitimate governmental interests and that those interests would have

11

been less well served in the absence of the [policy preventing livestreaming].” Ward, 491 U.S. at

801; see Albertini, 472 U.S. at 688-89.? Accordingly, the alleged policy is not “substantially broader

than necessary to achieve the government’s interest.” Am. Entertainers, 88 F.3d at 717 (quotation

omitted). Thus, the court holds that the Town of Winterville’s alleged policy is narrowly tailored

to serve a substantial government interest.

Finally, the court analyzes whether the policy leaves open “ample alternative channels for

communication of the information.” Ward, 491 U.S. at 791; see Ross, 746 F.3d at 559. To satisfy

this standard, the available alternatives need not “be the speaker’s first or best choice or provide the

same audience or impact for the speech.” Ross, 746 F.3d at 559 (alteration and quotation omitted);

Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000). Instead, the relevant inquiry focuses on

whether the challenged policy “provides avenues for the more general dissemination of a message.”

Ross, 746 F.3d at 559 (quotation omitted); see Green v. City of Raleigh, 523 F.3d 293, 305 (4th Cir.

2008).

The alleged policy allows Sharpe to record the police encounters from inside the stopped car

for later use, such as posting to Facebook a video recorded from inside the stopped car during the

traffic stop or submitting the video to media outlets for broadcast. See Pl.’s Ex. A. [D.E. 1-2] 20-21

(“If you were recording, that is just fine. ... We record, too.”). As such, the policy does not “hinder

[Sharpe’s] ability to disseminate [his] message.” Ross, 746 F.3d at 559. The policy also does not

3 Sharpe does not argue that there are less intrusive ways for the Town to achieve its officer

and public safety interests. Cf, [D.E. 39] 6-10. Moreover, in light of the concerns associated with

livestreaming from inside the stopped car during the traffic stop, there appear to be no less intrusive

ways of achieving the public interest in officer and public safety short of barring the use of

livestreaming from inside the stopped car during the traffic stop. Accordingly, the court concludes

that defendants are not required to present proof that the Town tried other methods to address its

officer and public safety concerns in order to demonstrate narrow tailoring. Cf. McCullen v.

Coakley, 573 U.S. 464, 494-97 (2014) (requiring the government to present proof that it tried less

intrusive methods where less intrusive means were actually available); Reynolds, 779 F.3d at 231-32

(same).

12

prohibit any person not inside the stopped car from recording and livestreaming the traffic stop.

Thus, the policy leaves open ample alternatives of communication. Accordingly, the court holds that

the alleged policy survives intermediate scrutiny and that the defendants are entitled to judgment as

a matter of law.

C.

Sharpe also moves for entry of final judgment concerning this court’s August 20, 2020 order

dismissing Sharpe’s section 1983 claim against Helms in his individual capacity. See [D.E. 34]; Fed.

R. Civ. P. 54(b). In cases involving multiple claims or multiple parties, a “court may direct entry

of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly

determines that there is no just reason for delay.” Fed. R. Civ. P. 54(b). All claims between the

parties have been resolved, and the court’s judgment is now final. Thus, the court dismisses as moot

Sharpe’s Rule 54(b) motion.

I.

In sum, the court GRANTS defendants’ motion for judgment on the pleadings [D.E. 36] and

DISMISSES AS MOOT plaintiff's motion for entry of final judgment [D.E. 34]. The clerk shall

close the case.

SO ORDERED. This 4 day of July 2021.

Ab BN DA

J S C. DEVER I

United States District Judge

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