Amicus Curiae Brief — Dijon Sharpe, Petitioner v. Winterville Police Department, et al.

Supreme Court briefOct 18, 2023

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No. 23-276

In the Supreme Court of the United States

DIJON SHARPE,

Petitioner,

WINTERVILLE POLICE DEPARTMENT, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

BRIEF FOR THE INSTITUTE FOR JUSTICE

AS AMICUS CURIAE

SUPPORTING PETITIONER

BRIAN A. MORRIS

Counsel of Record

ANYA BIDWELL

INSTITUTE FOR JUSTICE

901 North Glebe Road,

Suite 900

Arlington, VA 22203

(703) 682-9320

bmorris@ij.org

QUESTIONS PRESENTED

Whether the Court should hold that it was clearly

established by October 2018 that filming police officers in public is First Amendment protected activity,

or at least clearly establish that it is First Amendment protected activity going forward.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

TABLE OF AUTHORITIES .................................... iii

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF THE ARGUMENT .......................... 2

ARGUMENT ............................................................. 7

I. This case presents an ideal opportunity

for the Court to articulate a clear rule

about the right to film the police ................... 8

II. The First Amendment right to record

the police is a recurring and important

issue that protects the rights and safety

of citizens and police alike ........................... 15

CONCLUSION ........................................................ 19

iii

TABLE OF AUTHORITIES

PAGE(S)

Cases

Branzburg v. Hayes,

408 U.S. 665 (1972) ........................................ 14, 15

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) .............................................. 15

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................................ 4

Connally v. Gen. Constr. Co.,

269 U.S. 385 (1926) ................................................ 4

Connick v. Myers,

461 U.S. 138 (1983) .............................................. 16

Counterman v. Colorado,

600 U.S. 66 (2023) ............................................ 7, 14

Fields v. City of Philadelphia,

862 F.3d 353 (3d Cir. 2017) ...................... 12, 15, 16

Frasier v. Evans,

142 S. Ct. 427 (2021) .............................................. 5

Golodner v. Berliner,

770 F.3d 196 (2d Cir. 2014) .................................... 9

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................... 8-10

McCoy v. Alamu,

141 S. Ct. 1364 (2021) .................................... 11, 12

McCoy v. Alamu,

950 F.3d 226 (2020) ........................................ 11, 12

Mullenix v. Luna,

577 U.S. 7 (2015) .................................................... 8

Quaraishi v. St. Charles County,

986 F.3d 831 (8th Cir. 2021) ................................ 13

Reichle v. Howards,

566 U.S. 658 (2012) ................................................ 9

Roth v. United States,

354 U.S. 476 (1957) ................................................ 2

Sause v. Bauer,

138 S. Ct. 2561 (2018) .......................................... 11

Sause v. Bauer,

859 F.3d 1270 (10th Cir. 2017) ............................ 11

Snyder v. Phelps,

562 U.S. 443 (2011) ........................................ 15, 16

Taylor v. Riojas,

141 S. Ct. 52 (2020) .......................................... 9, 10

Taylor v. Stevens,

946 F.3d 211 (5th Cir. 2019) ................................. 10

Turner v. Lieutenant Driver,

848 F.3d 678 (5th Cir. 2017) ................................ 12

Rules

Sup. Ct. R. 37.2 .......................................................... 1

Sup. Ct. R. 37.6 .......................................................... 1

Other Authorities

1 JOURNALS OF THE CONTINENTAL CONGRESS 108

(1774) ...................................................................... 2

Amy Forliti, Officer’s Body Camera Went Dark During

Key Moment of Patrick Lyoya’s Death, PBS (Apr. 15,

2022, 5:28 PM), https://tinyurl.com/PBS-Bodycam

............................................................................... 17

Chris Koeberl, Denver Police Accused of Using

Excessive Force, Illegal Search, FOX31 DENVER

(Nov. 25, 2014, 10:39 AM),

https://tinyurl.com/Denver-Story ........................... 6

Erika Harrell & Elizabeth Davis, U.S. Dep’t of Justice

, Contacts Between Police and the Public, 2018—

Statistical

Tables

(Feb.

2023),

https://tinyurl.com/DOJ-2018-Stats..................... 16

EZEKIEL RUSSELL, A BLOODY BUTCHERY, BY THE

BRITISH TROOPS: OR, THE RUNAWAY FIGHT OF THE

REGULARS (1775) ..................................................... 2

Hannah Grover, Body Camera Footage Clear’s

Officer’s Name, FARMINGTON DAILY TIMES (Feb. 2,

2017, 6:49 PM), https://tinyurl.com/Video-ClearsCop .......................................................................... 7

Jay Croft & Elizabeth Hartfield, Buffalo Officers Quit

Special Team After 2 Officers are Suspending for

Shoving a 75-year-old Protester, CNN (June 6,

2020, 8:32 PM), https://tinyurl.com/Buffalo-Elderly

................................................................................. 6

Kala Kachmar, Minute by Minute: What Happened

the Night David McAtee was Shot Dead by National

Guard, LOUISVILLE COURIER J. (Jan. 22, 2021, 8:35

PM), https://tinyurl.com/Kris-Smith-Video ......... 18

Karie Herringa, Video Footage Shows GRPD Officer

Shoot Patrick Lyoya in the Head, FOX17 MICH. (Apr.

14, 2022, 10:12 AM), https://tinyurl.com/LyoyaFox17 ..................................................................... 18

Larry Celona et al., Bystander Caught on Video

Encouraging Cop Shooter: ‘Don’t Give Up!’, N.Y.

POST

(Apr.

19,

2019,

7:39

PM),

https://tinyurl.com/Crazy-Bystander ................... 17

Ray Sanchez, Growing Number of Prosecutions for

Videotaping the Police, ABC NEWS (July 16, 2010,

10:24 AM), https://tinyurl.com/ABC-arrests ......... 6

Tina Moore et al., NYPD Cop Shot, Suspect Killed

During Wild Gunfire in Washington Heights, N.Y.

POST

(Apr.

19,

2019,

12:07

PM),

https://tinyurl.com/NY-Parking-Camera ............. 17

INTEREST OF AMICUS CURIAE 1

The Institute for Justice is a nonprofit public interest law center committed to defending the essential foundations of a free society by securing greater

protection for individual liberty. Central to that mission is promoting accountability to the Constitution

for government officials and state actors.

A pillar of the Institute for Justice’s work is the

First Amendment and reinvigorating the founding

principles that embraced the free flow of information

that is indispensable to our democratic form of government and to our free enterprise economy. The Institute for Justice launched its Project on Immunity

and Accountability in part to help protect First

Amendment rights. Section 1983 is the best, most reliable way to sue individual government officials for

violating constitutional rights. But immunity doctrines, such as qualified immunity, let the government avoid constitutional accountability. These immunity doctrines are not rooted in the text of Section

1983, but rather in common-law principles or policy

decisions.

Here, Petitioner engaged in core First Amendment

speech: Documenting government abuse. Respondents, however, retaliated against Petitioner for exercising his First Amendment right to record the police.

And the Fourth Circuit let Respondents use qualified

immunity to hide from their constitutional violations.

The Institute for Justice is dedicated to protecting

1 No counsel for a party authored this brief in whole or in part,

and no person other than the amicus curiae or its counsel made

a monetary contribution to fund the preparation or submission

of this brief. Sup. Ct. R. 37.6. Amicus curiae gave timely notice

to the parties of its intent to file this brief. Sup. Ct. R. 37.2.

free speech rights and holding government officials

accountable when they violate those rights. That’s

why the Institute for Justice is working to restore a

textualist approach to Section 1983, which would rid

the statute of the modern doctrine of qualified immunity and the artificial hunt for “clearly established” law. But at a minimum, the Court should hear

this case and resolve the circuit split so there is clarity

on this important constitutional issue.

SUMMARY OF THE ARGUMENT

Since the Founding, documenting government

abuse has been a core American value. In fact, the

“long train of abuses” by King George III—compiled

by Thomas Jefferson with Benjamin Franklin and

John Adams’s assistance—spans half the Declaration

of Independence. And before that, the Framers used

the quickest media available to them—pamphlets—to

expose everything from the Boston Massacre to the

first shots fired at Lexington and Concord. See, e.g.,

EZEKIEL RUSSELL, A BLOODY BUTCHERY, BY THE BRITISH TROOPS: OR, THE RUNAWAY FIGHT OF THE REGULARS (1775).

Fast forward nearly 250 years. Now, the video has

long replaced the pamphlet, but the purpose remains

the same: “to assure unfettered interchange of ideas

for bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S.

476, 484 (1957). Indeed, as the Framers recognized,

speech has the power to “shame[ ] or intimidate[ ]”

“oppressive officers . . . into more honourable and just

modes of conducting affairs.” Id. (quoting 1 JOURNALS

OF THE CONTINENTAL CONGRESS 108 (1774)).

That’s exactly what recordings of the police accomplish—documenting encounters so individuals, like

Petitioner, can freely share what the government is

doing. And because others can now see and hear that

speech through video recordings, it can spark

change—both in how officers act and in broader legislative policies.

But as this case shows, qualified immunity lets

government officials off the hook even when they violate this fundamental First Amendment right. Qualified immunity, however, is both atextual and ahistorical. And a growing number of jurists, including members of nearly every court of appeals, the panel below

in this case, and members of this Court, all agree that

reading qualified immunity into Section 1983 is a policy choice and unmoored from both its statutory text

and the common law in 1871. Those realities justify

the Court revisiting qualified immunity wholesale.

In the meantime, this case gives the Court a

chance to fix qualified immunity as it applies to this

critical First Amendment right, which affects every

police encounter across the United States and has divided the circuits: Whether it is clearly established

that filming police officers in public is a protected activity under the First Amendment.

The Court should take this case and provide a

clear and definitive rule: Yes, the First Amendment

protects the right of individuals to film police officers

in public—and the police cannot arrest or retaliate

against someone for exercising that right. Such a

bright-line rule is important for two reasons. First, it

would empower Americans today to freely document

government abuses just like our Framers. The First

Amendment requires definitive and settled rules from

courts. Otherwise, would-be speakers “must necessarily guess” at whether their speech is protected, resulting in a chilling effect, where would-be speakers

are intimidated from engaging in constitutionally protected speech. Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 324 (2010) (quoting Connally

v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). In other

words, without a clear rule, would-be recorders will

just stop recording rather than risk retaliation.

Second, a bright-line rule would unify the courts

below and provide fair notice to every officer about the

right to record. That clarity is even more important

under the qualified immunity analysis. To overcome

the judge-made scavenger hunt of finding “clearly established” caselaw, lower courts (and police officers)

often find themselves slicing and dicing factual differences to excuse constitutional violations. In right-torecord cases, then, lower courts improperly focus on

who is recording, how the video is being recorded, or

other immaterial factors that muddle the analysis

and result in police officers escaping liability for their

constitutional violations.

That’s exactly what happened here. Respondents,

the district court, and the Fourth Circuit all narrowly

focused on how Petitioner recorded the police

(through Facebook Live) and who was doing the recording (a passenger) to excuse the officer’s retaliation. But under the First Amendment and this Court’s

qualified immunity precedent, it shouldn’t matter

what app or device Petitioner used to record the police—or whether Petitioner saved the video to his

device, on some cloud-based service, or through a website like Facebook. Nor should it matter whether a

journalist, a bystander, a passenger, or anyone else is

doing the recording. Instead, a right to record the police is a right to record the police. This case gives the

Court the chance to articulate a clean rule at the

proper level of generalization.

Indeed, this Court had the same opportunity to set

such a rule in 2021, when it denied a petition that

asked whether the right to publicly film the police was

clearly established in 2014. Frasier v. Evans, 142 S.

Ct. 427 (Nov. 1, 2021) (petition denied). Yet still today, lower courts continue to get this issue wrong because the Court has never articulated the right to record once-and-for-all. If the Court passes on the same

question again, other circuits, like the Second, Sixth,

Eighth, and D.C. Circuits, could use this as an excuse

to argue that the right is not clearly established. This

Court can forever answer that question here.

The Institute for Justice understands well the

need for such a clean rule; otherwise, government officials can retaliate with impunity against anyone

who records them. In Texas, for example, a citizen

journalist tracked police calls on a scanner, drove to

the scene to record the police encounter, and then uploaded the video to his YouTube channel, “Corruption

Report.” The local police didn’t like this, so they eventually excluded the journalist from a police press conference because he was not “real media” and even arrested him for filming a police encounter. Pulliam v.

County of Fort Bend, No. 4:22-cv-4210 (S.D. Tex.).

That type of retaliation, unfortunately, is not uncommon. Police have used everything from pretextual

arrests to the use of force to stop individuals from recording. See, e.g., Ray Sanchez, Growing Number of

Prosecutions for Videotaping the Police, ABC NEWS

(July 16, 2010, 10:24 AM), https://tinyurl.com/ABCarrests; Chris Koeberl, Denver Police Accused of Using Excessive Force, Illegal Search, FOX31 DENVER

(Nov. 25, 2014, 10:39 AM), https://tinyurl.com/Denver-Story. The First Amendment, however, protects

everyone’s right to record the police without the fear

of retaliation. This case gives the Court the chance to

say exactly that.

What’s more, as the repetition of these cases

shows, whether it is clearly established that the First

Amendment protects the right to record is an important and chronic issue that warrants the Court’s

attention now. As Petitioner explained, there are tens

of millions of traffic stops each year in the United

States, Pet.’s Br. 20, with countless more police interactions off the road. Recording these encounters safeguards the truth—for both the individual and the officer. In contrast, without a robust right to record, officers would, for instance, be free to turn off their body

cams so they can open fire on protesters in Kentucky,

see infra pp. 17–18, or shove a 75-year-old man in Buffalo to the ground then claim the man simply tripped

and fell, Jay Croft & Elizabeth Hartfield, Buffalo Officers Quit Special Team After 2 Officers are Suspending for Shoving a 75-year-old Protester, CNN (June 6,

2020, 8:32 PM), https://tinyurl.com/Buffalo-Elderly.

This protection works both ways. For example, without video recordings, individuals would be free to accuse officers of beating somebody when, in fact, the

alleged victim was intoxicated, fell on his own, and hit

his head despite the officer’s attempt to catch him.

Hannah Grover, Body Camera Footage Clear’s Officer’s Name, FARMINGTON DAILY TIMES (Feb. 2, 2017,

6:49 PM), https://tinyurl.com/Video-Clears-Cop. Put

simply, recordings are necessary for everyone to know

the truth.

In the end, lower courts and states will continue to

excuse retaliation from police officers when someone

records the police until this Court steps in. Even

worse, many would-be speakers would just not record

in the first place. That chilling effect would diminish

government transparency and our protections under

the First Amendment. So if the Court is going to continue with the “clearly established” rule, the Court

should at least clear the brush on this issue, resolve

the circuit split, and provide the bright-line rule

needed to protect this important and fundamental

First Amendment right.

ARGUMENT

The First Amendment requires special protection

and broad rules to prevent the “chilling” of speech. See

Counterman v. Colorado, 600 U.S. 66, 75 (2023).

Without that, restrictions on speech can deter otherwise lawful speech because “[a] speaker may be unsure about” whether his speech is protected or prohibited. Id. In other words, when in doubt, would-bespeakers remain silent. So if Americans are unsure

about their right to record, they will simply turn off

the cameras. That’s the exact confusion the Fourth

Circuit created—it placed in doubt how someone can

record the police and who can do the recording. Under

the First Amendment, however, the opposite should

be true. Courts must provide “breathing room” for legitimate speech that errs on the side of more speech

and fewer restrictions, and thus, less fear and selfcensorship for would-be speakers. Id.

To accomplish that, courts need to apply the same

broad rules when it comes to the qualified immunity

analysis for First Amendment violations. But don’t

worry, that is nothing new. Rather, it has always been

the rule outside the Fourth Amendment context

where, as shown here, officers are not deciding what

level of force to use during a split-second decision

while in the face of significant danger. Cf. Mullenix v.

Luna, 577 U.S. 7, 13–16 (2015).

When the Court has articulated the proper level of

generality in other non-split-second-Fourth-Amendment cases, it has been careful to not define the right

too narrowly—as the Fourth Circuit did here. Rather,

broad rules accomplish two things: They still give officers “fair warning” that their conduct was unlawful,

but they also protect the constitutional right at issue

by holding officers liable when they violate that right.

That is the precise situation here. If defined properly,

“the right of individuals to film police officers in public” would give officers proper notice, while also giving

individuals the breathing room necessary to protect,

rather than chill, speech.

I. This case presents an ideal opportunity for

the Court to articulate a clear rule about the

right to film the police.

According to this Court, the purpose of qualified

immunity is to give government officials “fair warning” that their conduct is unconstitutional. Hope v.

Pelzer, 536 U.S. 730, 741 (2002). To accomplish that,

courts decide whether a hypothetical and reasonable

officer would have known that his conduct was “constitutionally permissible.” See Taylor v. Riojas, 141 S.

Ct. 52, 53 (2020) (per curiam). Courts can look to various sources, including previous cases from this

Court, to decide whether a right is clearly established,

and thus capable of giving an officer “fair warning.”

Hope, 536 U.S. at 743–45.

In making that determination, not every factual

distinction matters. Rather, courts essentially use

“the Goldilocks principle.” Golodner v. Berliner, 770

F.3d 196, 205–06 (2d Cir. 2014); see also Reichle v.

Howards, 566 U.S. 658, 664 (2012) (describing the

“balance” of the clearly established test between the

“vindication of constitutional rights” and allowing officials to “reasonably [ ] anticipate when their conduct

may give rise to liability for damages”). When defining the constitutional right at issue, courts must be

“just right” in comparing or distinguishing previous

cases—not too broad and not too narrow. For instance, “[i]f the right is defined too narrowly based on

the exact factual scenario,” such as “the right to record the police on an iPhone during traffic stops in the

rain,” then police “will invariably receive qualified immunity.” Golodner, 770 F.3d at 206.

This Court has warned against such an “overreliance on factual similarit[ies]” to define the right at issue as both “danger[ous]” and “rigid.” Hope, 536 U.S.

at 742. Indeed, as the Court put it, “officials can still

be on notice that their conduct violates established

law even in novel factual circumstances.” Id. at 741.

In Hope, the appropriate level of generality was

that “corporal punishment” by prison guards violated

the Eighth Amendment. 536 U.S. at 742. It didn’t

matter whether guards punished an inmate by handcuffing him to a fence, to the bars of a prison cell, or

even to a hitching post in the sun—any reasonable officer, in any of those factual scenarios, would have fair

notice that they were violating the Eighth Amendment. Id. at 733–35, 742–43. Thus, the Court reversed

the Eleventh Circuit’s grant of qualified immunity because distinguishing how the guards employed corporal punishment defined the right too narrowly. Id.

at 746–46.

The Court has repeatedly reaffirmed its warning

to lower courts to not slice and dice cases so thinly. In

Riojas, the Court considered whether prison guards

violated an inmate’s Eighth Amendment rights when

the guards housed him in cells “teeming with human

waste” for six days. 141 S. Ct. at 53. The Fifth Circuit

had granted qualified immunity because, although it

“was clear that prisoners couldn’t be housed in cells

teeming with human waste for months on end,” the

Fifth Circuit “hadn’t previously held that a time period so short violated the Constitution.” Taylor v. Stevens, 946 F.3d 211, 222 (5th Cir. 2019). But this Court

reversed: Whether it was six days or six months, “any

reasonable officer should have realized that [the] conditions of confinement offended the Constitution.” Riojas, 141 S. Ct. at 54. In other words, the specific time

period just didn’t matter. What did matter was the

more general principle that the inmate endured “deplorably unsanitary conditions” for “an extended period of time.” Id. at 53.

The Court signaled the same result in Sause v.

Bauer, 138 S. Ct. 2561 (2018). In Sause, a pro se petitioner alleged that officers violated her rights when

they ordered her to stop praying in her apartment.

The Tenth Circuit had granted qualified immunity

because Sause failed to “identify a single case in

which this court, or any court for that matter, has

found a First Amendment violation based on a factual

scenario even remotely resembling the one we encounter here.” Sause v. Bauer, 859 F.3d 1270, 1275

(10th Cir. 2017). But this Court reversed because, outside of the Fourth Amendment context, the Court is

less concerned with a close factual similarity to overcome qualified immunity. Rather, as this Court put it,

“There can be no doubt that the First Amendment

protects the right to pray,” Sause, 138 S. Ct. at 2562.

And based on just that allegation in the complaint,

the officers were not entitled to qualified immunity.

Then in McCoy v. Alamu, the Court summarily reversed another grant of qualified immunity that distinguished facts too narrowly, this time for an officer’s

assault on an inmate. 141 S. Ct. 1364 (2021) (mem.).

As the Fifth Circuit saw it, how the officer assaulted

the inmate made all the difference—the officer

sprayed the inmate in the face with “an isolated, single use of pepper spray.” McCoy v. Alamu, 950 F.3d

226, 233 (2020). To the Fifth Circuit, no previous case

would have told officers that this conduct was constitutionally impermissible. Instead, it was only clearly

established that assaulting an inmate with a “full can

of [pepper] spray” violated the Eighth Amendment,

id., or that assaulting an inmate with a different

weapon, such as “a fist, taser, or baton,” was clearly

established, id. at 235 (Costa, J., dissenting in part).

So the Fifth Circuit granted qualified immunity.

But this Court reversed for the same reason as in

Riojas—i.e., that how (or by what means) the officer

assaulted the inmate was irrelevant. 141 S. Ct. at

1364. McCoy, then, involved the same misstep as in

Riojas: It involved a hyper-specific focus on granular

facts to distinguish cases that don’t actually impact

the “fair notice” analysis to officers. For example, telling officers to not put inmates in “cells teeming with

human waste” should be enough no matter how long

the inmates are forced to endure it, just like telling

officers not to assault inmates “for no reason” should

be enough regardless of the “weapon of choice” the officer uses to deploy the beating. See McCoy, 950 F.3d

at 234–35 (Costa, J., dissenting in part).

But here, the Fourth Circuit made the same mistake by taking an over-granulized view of the constitutional right at issue, conflicting with Hope, Riojas,

McCoy, and Sause. As the panel below framed it,

“[t]he First Amendment right here is a passenger’s alleged right to livestream their own traffic stop.” Pet.

App. 14a. As the Fourth Circuit saw it, “videotaping”

the police, which was clearly established, see Turner

v. Lieutenant Driver, 848 F.3d 678, 683 (5th Cir.

2017),

was

constitutionally

different

than

“livestreaming a police officer.” Pet. App. 14a. And

cases establishing that a bystander had the right to

record did not put the police on notice that a passenger also had the right to record. Id. (citing Fields v.

City of Philadelphia, 862 F.3d 353, 359–60 (3d Cir.

2017)).

The Fourth Circuit’s narrow framing is wrong. For

the right to record, it doesn’t matter who is recording

or how that person is doing the recording. Those details don’t matter—and courts shouldn’t consider

them in the qualified immunity analysis. Indeed, the

Fourth Circuit’s approach would guarantee that officers always receive qualified immunity because there

are infinite details that can distinguish who is recording or how someone is recording the police. For instance, should it matter if a bystander, the target of

an investigation, a journalist, a social media influencer, a YouTuber, a victim, a neighbor, a local news

outlet, or a passenger is the person doing the recording? Or does it just matter that someone is recording

the police in public? This Court can definitively resolve that question.

Likewise, does it matter if the recording is broadcast live on local television, shot on a professional

video camera, stored on an iPhone, instantly shared

through Zoom, shared in real-time through

WhatsApp or FaceTime (or any other app, including

Twitch, Snapchat, or TikTok), captured through a

cloud-based service, recorded through Facebook Live,

or shot on whatever new and changing recording technology is developed in the coming weeks, months, and

years? Compare Quaraishi v. St. Charles County, 986

F.3d 831, 834, 839 (8th Cir. 2021) (denying qualified

immunity when officers teargassed reporters preparing to record a live broadcast near a protest), with Pet.

App. 14a–15a (granting qualified immunity for

livestreaming).

Again, this Court should calibrate the appropriate

level of generality in these cases. In contrast, without

this Court’s guidance, lower courts will continue to

struggle over the proper level of generalization—quibbling over whether something is “too hot or too cold,”

rather than acknowledging that framing the constitutional issue simply as an individual’s right to record

the police in public is “just right.”

This result matches the Court’s approach with the

First Amendment, which the Court has never

chopped up into small pieces like the Fourth Circuit

did here. Instead, the First Amendment requires

broad and definitive rules. Without it, “[a] speaker

may be unsure about the side of a line on which his

speech falls. Or he may worry that the legal system

will err, and count speech that is permissible as instead not.” Counterman, 600 U.S. at 75. This Court

has long warned against the “chilling effect” and selfcensorship that uncertainty under the First Amendment brings with it. That is why this Court, unlike

the Fourth Circuit below, has endorsed broad protections under the First Amendment, which allow for

“breathing room” and “more valuable speech” to occur.

Id.

Take Branzburg v. Hayes, 408 U.S. 665 (1972). In

that case, the Court rejected an attempt to limit who

or what the “freedom of the press” protects. The Court

explained how the “[f]reedom of the press is a ‘fundamental personal right’ which ‘is not confined to newspapers and periodicals.’” Id. at 704. Rather, the historical roots of the First Amendment encompass

“every sort of publication” that conveys “information

and opinion,” including “pamphlets and leaflets.” Id.

The First Amendment also protects everyone, including not just “the organized press,” but also “lecturers,

political pollsters, novelists, academic researchers, or

dramatists.” Id. at 704; see also Brown v. Ent. Merchs.

Ass’n, 564 U.S. 786, 790 (2011) (applying First

Amendment protections to “video games” just like it

protects “books, plays, and movies”).

Likewise here, the right to record shouldn’t turn

on or off depending on who is holding the camera or

how they’re recording the video. See Fields v. City of

Philadelphia, 862 F.3d 353, 357–58 (3d Cir. 2017)

(“All we need to decide is whether the First Amendment protects the act of recording police officers carrying out official duties in public places.”). The Court

should take this case and provide a clear and administrable rule that the First Amendment protects an

individual’s right to record the police in public. That

formulation of the right is specific enough to give “fair

notice” to officers that Petitioner (or anyone else) was

entitled to record the traffic stop—using livestream or

any other method. Anything less would allow lower

courts, like the Fourth Circuit did here, to use the

very “rigid” and unworkable approach that this Court

has warned against.

II. The First Amendment right to record the police is a recurring and important issue that

protects the rights and safety of citizens and

police alike.

The right to record the police in public—a quintessential issue of public concern—lies at the heart of the

First Amendment. See Snyder v. Phelps, 562 U.S. 443,

451–52 (2011). As this Court has “frequently reaffirmed,” “speech on public issues occupies the highest

rung of the hierarchy of First Amendment values, and

is entitled to special protection.” Connick v. Myers,

461 U.S. 138, (1983) (citation and quotation marks

omitted). Filming the police fits squarely on that

rung—empowering “uninhibited, robust, and wideopen” public discussions on everything from society,

culture, and civil rights to law enforcement policies

and government funding. Fields, 862 F.3d at 359

(quoting Snyder, 562 U.S. at 452).

It also goes without saying, but the right to record

the police is a massively recurring issue. In 2018, for

instance, the Department of Justice reported that

twenty-four percent of all American residents, aged

sixteen or older, experienced contact with the police

in the previous year. Erika Harrell & Elizabeth Davis,

U.S. Dep’t of Justice, Contacts Between Police and the

Public, 2018—Statistical Tables (Feb. 3, 2023), available at https://tinyurl.com/DOJ-2018-Stats. That’s

over 61 million residents each year experiencing at

least one police encounter. And according to the DOJ,

more than 1.3 million of those residents “experienced

threats or use of force from police.” Id. at 5. Put

simply, the right to film those encounters reaches

every corner of America every single day.

What’s more, everyone stands to benefit from having a clear record of what happens during those police

encounters. As Petitioner highlighted, civilian videos

have provided valuable information about how the police treated George Floyd, Eric Garner, Philando Castile, and Rodney King. Pet. Br. 21–22. The list goes on

and on—almost too overwhelming to fully grasp. But

the importance of these videos cannot be overstated.

Without them, the truthful account of what happens

would easily be lost. That would prevent officers from

quickly overcoming false allegations of misconduct,

while also preventing the bad apples from being exposed.

Indeed, bystander recordings are vital investigatory tools despite the growing and widespread use of

police body cameras. In New York, for example, a

plainclothes officer found himself in a shootout with a

suspect in a parking lot. The full chaos of the scene,

and the justified actions of the police officers, were

captured on both a video-surveillance camera, Tina

Moore et al., NYPD Cop Shot, Suspect Killed During

Wild Gunfire in Washington Heights, N.Y. POST (Apr.

19, 2019, 12:07 PM), https://tinyurl.com/NY-ParkingCamera, and a bystander video across the street,

which confirmed the officers’ instructions to “[d]rop

the gun and come out with your hands in the air.”

Larry Celona et al., Bystander Caught on Video Encouraging Cop Shooter: ‘Don’t Give Up!’, N.Y. POST

(Apr. 19, 2019, 7:39 PM), https://tinyurl.com/CrazyBystander. Body cameras can also fail—leaving critical gaps in the story. Take what happened in the

death of Patrick Lyoya in Michigan. See Amy Forliti,

Officer’s Body Camera Went Dark During Key Moment of Patrick Lyoya’s Death, PBS (Apr. 15, 2022,

5:28 PM), https://tinyurl.com/PBS-Bodycam. After a

physical struggle with police, the body cam video

“goes dark 42 seconds before the officer shoots [Patrick].” Id. According to officers, body cameras can be

deactivated by holding a button on the camera, which

can accidentally happen during physical encounters.

Id. A bystander cellphone video, however, filled in the

gaps of what happened—showing the officer on top of

Patrick before he shoots Patrick in the back of the

head. Karie Herringa, Video Footage Shows GRPD

Officer Shoot Patrick Lyoya in the Head, FOX17 MICH.

(Apr. 14, 2022, 10:12 AM), https://tinyurl.com/LyoyaFox17. After this video emerged, the officer was

charged with second-degree murder.

Other officers have been caught intentionally

turning off their body cameras. During the protests

that followed Breonna Taylor’s death, Kris Smith

livestreamed protests in Louisville, Kentucky

through Facebook Live. One recording revealed that

National Guard Troops and local police officers

opened fire on the protesters, killing one. Kala

Kachmar, Minute by Minute: What Happened the

Night David McAtee was Shot Dead by National

Guard, LOUISVILLE COURIER J. (Jan. 22, 2021, 8:35

PM), https://tinyurl.com/Kris-Smith-Video. Kris’s Facebook Live video was critical to figuring out what

happened because the two local police officers involved in the shooting did not have their body cameras on, which was in violation of the police department’s policy. Id. And the National Guard soldiers did

not wear body cameras at all.

The list of videos either clearing or indicting police

officers can go on and on. That reality underscores the

need for this Court’s intervention. Videos of police encounters are the best and most objective way to protect everyone involved by capturing the truth. By taking this case, the Court can once and for all establish

an individual’s First Amendment right to record the

police in public. This would empower citizens, like Petitioner, to record police encounters, holding officers

responsible for when they retaliate against the exercise of that fundamental right. On the other hand,

officers doing their jobs will quickly have their names

cleared, letting them move on with their lives.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

October 18, 2023