1  

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