No. 16-648

In the Supreme Court of the United States

October Term, 2016

HARRY PIPER,

Petitioner,

v.

LUNA LOCKWOOD,

Respondent.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT

BRIEF FOR THE RESPONDENT

TEAM O COUNSEL FOR THE RESPONDENT

i

QUESTIONS PRESENTED

I. Whether courts, in determining the reasonableness of a use of force by an officer during

an arrest, should consider not only those facts and circumstances existing at the moment

of the use of force, but also the relevant facts and circumstances leading up to the

moment of the use of force.

II. Whether individuals, including those not formally affiliated with the press, have a First

Amendment right to record police officers acting in an official capacity in public.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF CONTENTS ................................................................................................................ ii

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

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED .......................................... vi

STATEMENT OF THE CASE ....................................................................................................... 1

SUMMARY OF THE ARGUMENT ............................................................................................. 4

ARGUMENT .................................................................................................................................. 6

I. PETITIONER’S USE OF FORCE AGAINST RESPONDENT WAS NOT REASONABLE UNDER AN APPROPRIATE INTERPRETATION OF THE GRAHAM TEST. .......................................................................................................................................... 6

A. Consideration of pre-seizure conduct is the correct standard for determining reasonableness of police force under a totality of the circumstances. .................................... 8

B. Petitioner’s use of force was unreasonable in light of the relevant facts and circumstances leading up to the moment of the use of force. ............................................... 14

C. Petitioner’s use of force was unreasonable in light of the relevant facts and circumstances existing at the moment of the use of force. ................................................... 16

II. THE FIRST AMENDMENT RIGHT TO FREEDOM OF THE PRESS ALLOWS INDIVIDUALS TO FILM PUBLIC OFFICIALS OPERATING IN AN OFFICIAL CAPACITY IN PUBLIC. ......................................................................................................... 20

A. As applied, Craven Gen. Stat. §15A-287 does not further an important governmental interest and does not create a reasonably close fit between the law’s intent and execution. 21

B. Confiscation and erasure of Respondent's video recording constitutes prior restraint and unduly burdens First Amendment rights. .............................................................................. 28

CONCLUSION ............................................................................................................................. 30

iii

TABLE OF AUTHORITIES

United States Supreme Court Cases

Bartnicki v. Vopper, 532 U.S. 514 (2001) .................................................................................... 22

Branzburg v. Hayes, 408 U.S. 665 (1972). ................................................................................... 21

Brower v. Cty. of Inyo, 489 U.S. 593 (1989). ............................................................................... 12

California v. Hodari, 499 U.S. 621 (1991) ................................................................................. 6, 9

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984). ................................................ 28

First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978). ........................................................ 30

Frisby v. Schultz, 487 U.S. 474 (1988). ........................................................................................ 26

Garrison v. Louisiana, 379 U.S. 64 (1964) .................................................................................. 23

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ................................................................. 23

Graham v. Connor, 490 U.S. 386 (1989) .............................................................................. passim

Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). ............................................................... 28

Mills v. Alabama, 384 U.S. 214 (1966). ....................................................................................... 23

Near v. State of Minnesota ex rel. Olson, 283 U.S. 697 (1931). .................................................. 30

Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976). ................................................................ 29

New York Times Co. v. U.S., 403 U.S. 713 (1971) ....................................................................... 30

New York Times v. Sullivan, 376 U.S. 254 (1964). ....................................................................... 23

Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978). .............................................................. 28

Payton v. New York, 445 U.S. 573 (1980). ................................................................................... 16

Pearson v. Callahan, 555 U.S. 223 (2009), .................................................................................. 16

Perry Educ. Ass’n v. Petty Local Educators’ Ass’n, 460 U.S. 37 (1983). .................................... 28

Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218 (2015). ................................................................ 22

Stanley v. Georgia, 394 U.S. 557 (1969). ..................................................................................... 20

iv

Tennessee v. Garner, 471 U.S. 1 (1985). ............................................................................... passim

Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................................... 6

Time, Inc. v. Pape, 401 U.S. 279 (1971). ...................................................................................... 23

U.S. v. O’Brien, 391 U.S. 367 (1968). .......................................................................................... 21

Ward v. Rock Against Racism, 491 U.S. 781 (1989). ................................................................... 22

United States Courts of Appeals Cases

Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999). .................................................................... passim

Alexander v. City & Cty. of San Francisco, 29 F.3d 1355 (9th Cir. 1994) ............................. 13, 15

Allen v. Muskogee, Okl., 119 F.3d 837 (10th Cir. 1997). ............................................................. 13

Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012). .................... passim

Angel v. Williams, 12 F.3d 786 (8th Cir. 1993). ........................................................................... 23

Billingsley v. City of Omaha, 277 F.3d 990 (8th Cir. 2002). ........................................................ 19

Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002). .................................................... 12, 13, 14, 15

Claybrook v. Birchwell, 274 F.3d 1098 (6th Cir. 2001). .............................................................. 10

Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993) ...................................................................... 9, 13, 18

Deering v. Reich, 183 F.3d 645 (7th Cir. 1999) ........................................................................... 11

Espinosa v. City & Cty. of San Francisco, 598 F.3d 528 (9th Cir. 2010). ................................... 15

Estate of Starks v. Enyart, 5 F.3d 230 (7th Cir. 1993) .................................................................. 13

Fraire v. City of Arlington, 957 F.2d 1268 (5th Cir. 1992) ............................................................ 9

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). ....................................................................... passim

Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991) ................................................................... 9, 17

Hastings v. Barnes, 252 Fed. App’x 197 (10th Cir. 2007) ..................................................... 13, 14

Kee v. City of Rowlett, Tex., 247 F.3d 206 (5th Cir. 2001). .......................................................... 25

Livermore ex rel Rhom v. Lubelan, 476 F.3d 397 (6th Cir. 2007). ................................................. 9

Reese v. Anderson, 926 F.2d 494 (5th Cir. 1991). ........................................................................ 19

v

Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996) ..................................................................................... 9

Schulz v. Long, 44 F.3d 643 (8th Cir. 1995) ............................................................................. 9, 13

Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000). ........................................................ 23

St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995) ....................................................... 12, 14

Thompson v. Mercer, 762 F.3d 433 (5th Cir. 2014). .................................................................... 18

U.S. v. Kerley, 753 F.2d 617 (7th Cir. 1985). ............................................................................... 28

Whitlow v. City of Louisville, 39 Fed. App’x 297 (6th Cir. 2002) ................................................ 10

United States District Court Cases

Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005). ..................................................... 29

State Court Cases

Coursey v. Greater Niles Tp. Pub. Corp., 40 Ill. 2d 257 (Ill.1968). ............................................. 23

Forster v. Manchester, 410 Pa. 192 (Pa. 1963). ........................................................................... 25

Constitutional Provisions

U.S. Const. amend. I. .................................................................................................................... 20

U.S. Const. amend. IV. ................................................................................................................... 6

Statutory Provisions

720 I.L.C.S. 5/14-1(d) (2016). ...................................................................................................... 27

M.G.L.A. 272 § 99(c)(1) (2016). .................................................................................................. 27

Secondary Sources

4 BI. Com 151, 152. ...................................................................................................................... 29

Note, The Rights of the Public and the Press to Gather Information, 87 Harv. L. Rev. 1505 (1974). ....................................................................................................................................... 20

vi

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

The First Amendment to the Constitution of the United States Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances. The Fourth Amendment to the Constitution of the United States The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Criminal Code of Illinois – 720 I.L.C.S. 5/14-1(d) (d) Private conversation. For the purposes of this Article, “private conversation” means any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation. A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution. Interception of Wire and Oral Communications – M.G.L.A. 272 § 99(c)(1) (c)(1) Offenses. Interception, oral communications prohibited. Except as otherwise specifically provided in this section any person who— willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment. Proof of the installation of any intercepting device by any person under circumstances evincing an intent to commit an interception, which is not authorized or permitted by this section, shall be prima facie evidence of a violation of this subparagraph.

1

STATEMENT OF THE CASE

Procedural History

Respondent Luna Lockwood was charged with violating Craven Gen. Stat. § 15A-287 by

recording a conversation without the consent of all involved persons. (R. at 4.) The trial court

subsequently dismissed those charges without objection by the prosecutor. (R. at 4.) After

criminal charges against her were dropped, Lockwood brought suit against Petitioner Harry Piper

under 42 U.S.C. § 1983 on three claims. (R. at 4.) First, she claimed that Piper’s warrantless

entry into her home breached her Fourth Amendment right to be free from unreasonable

searches. (R. at 4.) Second, she claimed that Piper’s use of force against her was excessive and

violated her Fourth Amendment right to be free from unreasonable seizures. (R. at 4.) Third,

she claimed that her arrest and the seizure of her recording violated her First Amendment right to

gather news and to receive information and ideas, meaning that Craven Gen. Stat. § 15A-287 is

unconstitutional as applied to citizen recordings of police acting in public. (R. at 4.)

The district court granted partial summary judgment to Lockwood on her claim that the

warrantless entry violated her Fourth Amendment rights. (R. at 4.) The Court agreed with

Lockwood that exigent circumstances did not exist, and that Piper could not claim qualified

immunity for his warrantless entry. (R. at 5.) After a bench trial, the district court awarded

damages to Lockwood. Neither party appealed from the district court’s rulings on liability and

the amount of damages for Lockwood’s first Fourth Amendment claim. (R. at 2.)

The district court granted summary judgment to Officer Piper on Lockwood’s second and

third claims (R. at 5.) The Court held that Officer Piper’s use of force was reasonable under the

Fourth Amendment because Piper could have reasonably feared for his safety in the moment that

he used force. (R. at 5.) The court also held that Lockwood’s arrest due to recording police

2

officers without their consent did not contravene her First Amendment rights. (R. at 5.)

Lockwood appealed to the Thirteenth Circuit the district court’s grant of summary judgment for

Piper on both claims.

The Thirteenth Circuit reversed the district court’s holdings on both issues. (R. at 12.)

First, the circuit court held that a court must consider not only the facts and circumstances

existing at the very moment of the use of force, but also the relevant facts and circumstances

leading up to the use of force. (R. at 12.) Under that standard, the court held that Piper’s use of

force was excessive under the totality of the circumstances and unreasonable as a matter of law

because his Fourth Amendment violation in entering Lockwood’s home without a warrant

recklessly provoked the need for force. (R. at 12.) In addition, the circuit court held that citizens

have a First Amendment right to record police in public. (R. at 12.)

Petitioner Piper filed a timely appeal claiming that the Thirteenth Circuit erred both in

considering the facts and circumstances leading up to the moment of the use of force as well as

in finding that Lockwood’s First Amendment rights were contravened by Craven Gen. Stat. §

15A-287.

Statement of Facts

Over a period of eight months, community members and environmentalists alike sought

to preserve Diagon Park, one of the largest open spaces in St. Mungo, Craven, from development

by starting an encampment in the park to prevent the planned construction of new governmental

buildings. (R. at 2.) Shortly after dawn on January 20, 2014, police began to clear the protestors

from the park so that construction workers could erect a fence and begin construction. (R. at 2.)

Anticipating potential conflict, environmentalist Luna Lockwood brought a video camera

that recorded both video and audio to capture the ensuing action. (R. at 3.) As community

3

members resisted the police’s requests to vacate, police employed racial epithets and heated

exchanges to clear the park. (R. at 3.) Lockwood captured one such encounter on film, and was

commanded by an officer to stop filming and erase the footage because she was in violation of

Craven. Gen. Stat. § 15A-287, which makes it illegal for someone to record a conversation

without the consent of all those involved. (R. at 3.) Lockwood complied with officer’s

commands and stopped recording. (R. at 3.) However, as police misconduct continued,

Lockwood moved to a secluded position behind nearby bushes and continued to film the heated,

racial-epithet filled exchanges between community members and police officers. (R. at 3.)

Officer Harry Piper, who had been working undercover in the park, observed Lockwood’s

actions from a distance and saw her leave after capturing a particularly heated and epithet-filled

encounter with her video camera. (R. at 3.)

As Lockwood returned to her home near the park, Officer Piper followed. (R. at 3.)

Piper was still a substantial distance behind Lockwood when she entered her home, and he saw

nothing to indicate that she was aware of his pursuit. (R. at 3.) When Piper reached Lockwood’s

home, he knocked on the front door, held up a badge, identified himself as a police officer, and

ordered Lockwood to open the door. (R. at 3.) Lockwood questioned why Piper was not dressed

in uniform. (R. at 3.) She referenced several recent robberies performed by men posing as

police officers and refused to grant him entry to her home. (R. at 3). Rather than seeking a

warrant to enter Lockwood’s home, Piper kicked open the front door. (R. at 3.)

Lockwood responded to Officer Piper’s entry by fleeing into the back of the house with

her video camera and hiding in a bedroom. (R. at 3.) Although Piper reiterated that he was a

police officer, Lockwood screamed for help and for him to leave. (R. at 3.) As he entered the

bedroom, Piper observed Lockwood moving her head around quickly as though searching the

4

room. (R. at 3.) Piper ordered Lockwood to put her hands on her head, but she continued to

scream for help and reached for a backpack lying on the bed in the center of the room. (R. at 3).

Before she reached the backpack, Piper struck Lockwood on the legs with his baton,

causing her to fall to the floor and drop her video camera. (R. at 3). When Lockwood reached

for her camera, Piper seized it first. (R. at 3). He placed his hand on Lockwood’s back and

ordered her to stay down, but Lockwood struggled to rise. (R. at 3). In response, Piper struck

Lockwood on the back of the head with his baton, knocking her unconscious. (R. at 3.)

Although Lockwood was taken to a hospital, the blow that she suffered caused brain damage that

still affects both her motor skills and her ability to speak. (R. at 3.)

During the later court proceedings, police copied Lockwood’s footage and deleted the

audio and visual recoding of the police action before returning the video camera to her. (R. at 4.)

Officials have refused to give Lockwood a copy of the recording, and refuse to release the

recording to the public. (R. at 4.)

SUMMARY OF THE ARGUMENT

The Thirteenth Circuit correctly denied Officer Harry Piper qualified immunity with

regards to Lockwood’s claim of excessive force during the course of an arrest. The Fourth

Amendment requires that police force exercised against an individual be objectively reasonable

under the totality of the circumstances confronting the officer. The Thirteenth Circuit correctly

adopted an expansive definition of “totality of the circumstances,” which considers not only the

facts and circumstances existing at the moment of the use of force, but also the relevant facts and

circumstances leading up to the moment of the use of force. Not only is the circuit court’s

approach most consistent with the expansive and all-encompassing meaning of the word

“totality,” but it is also consistent with the Court’s subsequent application of the reasonableness

5

test in Brower. In addition, consideration of pre-seizure conduct ensures an appropriate balance

between individual interests in bodily integrity and governmental interests in public safety.

Under the proper interpretation of “totality of the circumstances,” Officer Piper’s use of

force was excessive and thus unreasonable under the Fourth Amendment. By forcibly entering

Lockwood’s home without a warrant, Officer Piper committed an independent Fourth

Amendment violation against Lockwood. That independent constitutional violation directly

provoked the need for Piper’s subsequent use of force and thereby rendered his use of force

unreasonable. Even if Piper’s pre-seizure entry into Lockwood’s home is not considered, Officer

Piper’s use of force against Lockwood was unreasonable in light of the facts and circumstances

known to Piper at the moment the force was used. The Fourth Amendment does not permit the

use of debilitating physical force merely to prevent the escape of a suspect who has committed a

minor misdemeanor. In addition, Officer Piper had no reason to believe that Lockwood posed an

imminent threat to the safety of others or himself.

The Thirteenth Circuit also correctly held that Craven Gen. Stat. § 15A-287 violated

Lockwood’s First Amendment rights. Inherent in the First Amendment is the right to receive

and disseminate information and ideas. This right does not depend on official press status.

Thus, Craven Gen. Stat. § 15A-287, which prohibits audio-video recording of private

conversations without the consent of all parties involved, imposes content-neutral regulations on

Lockwood’s free speech rights. The regulations imposed by Craven Gen. Stat. § 15A-287, as

applied to filming police officers acting in public spaces, do not further an important

governmental interest because public officials acting in a public places forfeit their rights to

privacy to further the public interest. In addition, Craven Gen. Stat. § 15A-287 does not

demonstrate a reasonable degree of fit between its end and the means employed because the law

6

is applicable to conversations with no reasonable expectation of privacy. Thus, as applied to

video recordings of police action in public places, Craven Gen. Stat. § 15A-287

unconstitutionally infringes free speech rights protected by the First Amendment, and was

appropriately limited by the Thirteenth Circuit.

ARGUMENT

I. PETITIONER’S USE OF FORCE AGAINST RESPONDENT WAS NOT REASONABLE UNDER AN APPROPRIATE INTERPRETATION OF THE GRAHAM TEST.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const.

amend. IV. A seizure occurs “when the officer, by means of physical force or show of authority,

has in someway restrained the liberty of a citizen.” California v. Hodari, 499 U.S. 621, 625

(1991) (quoting Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968)) (emphasis omitted). In Tennessee v.

Garner, the Supreme Court held that, “there can be no question that apprehension by the use of

deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”

471 U.S. 1, 7 (1985). A few years later, the Court expanded the Garner approach and held that

all claims excessive force by law enforcement officers—deadly or not—should be analyzed

under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 395 (1989).

Determining whether the force used in a seizure is “reasonable” under the Fourth

Amendment requires a balancing of “‘the nature and quality of the intrusion on the individual’s

Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at

396 (quoting Garner, 471 U.S. at 8). The test of reasonableness is an objective inquiry. The

question is whether or not the officer’s use of force was objectively reasonable in light of the

facts and circumstances confronting him, without regard to his underlying intent or motivation.

Id. at 397. However, the question of objective reasonableness must be answered from the

7

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

Id. at 396. Such an inquiry allows for the fact that “police officers are often forced to make split-

second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Id. at 396–

97. As a result, the reasonableness inquiry 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 flee. Id. at 396. In Garner, the Court summarizes this

inquiry as “whether the totality of the circumstances justifie[s] a particular sort . . . of seizure.”

471 U.S. at 8–9.

Although the Graham standard of objective reasonableness is clear, the Supreme Court

has never articulated the appropriate scope of the “totality of the circumstances” inquiry. While

some circuits adopt a more limited “freeze-frame” approach in which only the facts and

circumstances existing at the moment of the use of force may be considered, the Thirteenth

Circuit correctly applied a more expansive definition of “totality,” in which facts and

circumstances leading up to the moment of the use of force may also be considered. When

Petitioner’s pre-seizure conduct is appropriately considered, Petitioner’s use of force against

Respondent was not reasonable in light of Petitioner’s illegal entry into Respondent’s home—an

independent Fourth Amendment violation. However, even if Petitioner’s pre-seizure entry is not

considered, Petitioner’s use of force against Respondent was unreasonable since Petitioner had

no reason to believe that Respondent posed an imminent threat of danger to himself or others.

8

A. CONSIDERATION OF PRE-SEIZURE CONDUCT IS THE CORRECT STANDARD FOR DETERMINING REASONABLENESS OF POLICE FORCE UNDER A TOTALITY OF THE CIRCUMSTANCES.

The Thirteenth Circuit correctly adopted an expansive definition of “totality of the

circumstances,” which considers the relevant facts and circumstances leading up to the moment

of the use of force. Not only is consideration of pre-seizure conduct most consistent with the

expansive and all-encompassing meaning of the word “totality,” but it is necessary to prevent

arbitrary discretion from clouding judicial administration. In addition, consideration of pre-

seizure conduct is most consistent with the Court’s subsequent application of the Graham test in

Brower. Ultimately, because the government has no countervailing interest in protecting

unreasonable police behavior, consideration of pre-seizure conduct ensures an appropriate

balance between individual interests in bodily integrity and the governmental interests described

in Graham.

1. Consideration of pre-seizure events is most consistent with the plain meaning of the Graham test.

The broad scope of inquiry adopted by the Thirteenth Circuit is more true to the plain

meaning of “totality of the circumstances” than the freeze-frame approach applied by the lower

court. “Totality” is an all-encompassing word. “It implies that reasonableness should be

sensitive to all of the factors bearing on the officer’s use of force.” Abraham v. Raso, 183 F.3d

279, 291 (3d Cir. 1999). Because actions that the officer takes before a need to use force exists

may sometimes create the need for a subsequent application of force, the “totality of the

circumstances” should include even those factors that constitute pre-seizure conduct.

In comparison, the freeze-frame approach employed by the lower court and several other

circuits requires that excessive force claims be viewed in segments. Livermore v. Lubelan, 476

F.3d 397, 406 (6th Cir. 2007). After identifying the seizure at issue, the court may consider only

9

those events that occurred at the moment that the force was used to determine if the seizure was

reasonable. See Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996) (holding an officer’s actions

leading up to a shooting irrelevant to the reasonableness of the shooting itself); Schulz v. Long,

44 F.3d 643, 648 (8th Cir. 1995) (upholding exclusion of pre-seizure conduct); Cole v. Bone, 993

F.2d 1328, 1333 (8th Cir. 1993) (refusing to consider pre-seizure roadblocks when determining

the reasonableness of shots fired by an officer to stop a high-speed car chase); Fraire v. City of

Arlington, 957 F.2d 1268, 1275–76 (5th Cir. 1992) (refusing to consider evidence that an officer

had failed to identify himself when determining the reasonableness of the officer’s use of force);

Greenidge v. Ruffin, 927 F.2d 789, 792 (4th Cir. 1991) (holding an officer’s actions prior to the

shooting irrelevant to the reasonableness analysis). Rather than considering all of the factors

bearing on an officer’s reasonableness, the freeze-frame approach requires courts to draw an

arbitrary boundary around the moment of seizure and rigidly exclude all context and causes that

occur prior to that moment.

Not only does such an approach contradict the very meaning of “totality,” but it also fails

to provide any principled method for distinguishing between pre-seizure and seizure conduct.

Under a strict reading of Hodari, a seizure doesn’t occur until the defendant is actually touched

by the officer’s physical force. Abraham, 183 F.3d at 291 (citing Hodari D., 499 U.S. at 630

(dissenting opinion) (suggesting that under the majority’s analysis, there may be no seizure when

the police shoot and miss)). If courts accept this strict interpretation of Hodari as well as the rule

that pre-seizure conduct is irrelevant, it leads to absurd results. “[V]irtually every shooting

would appear unjustified, for we would be unable to supply any rationale for the officer’s

conduct” without reference to the pre-seizure events that occurred immediately prior to the bullet

striking the defendant. Id. Thus, courts that uphold the freeze-frame approach must either allow

10

a less rigorous interpretation of Hodari or permit consideration of at least some pre-seizure

conduct.

Nevertheless, even under a less rigorous interpretation of Hodari, courts are left without

any principled way to delineate where seizure events end and pre-seizure events begin. The

confusion caused by such arbitrary determinations is best demonstrated by the case of Claybrook

v. Birchwell, where the deceased had multiple confrontations with the police before he was shot

and killed. 274 F.3d 1098 (6th Cir. 2001). The court eventually determined that the events at

issue in Claybrook should be appropriately “carved up” into three segments: the first

encompassing the officer’s initial approach and confrontation; the second encompassing the

initial shootout up until the deceased fled behind a market; and the third segment encompassing

the final shots that killed the deceased. Whitlow v. City of Louisville, 39 Fed. App’x 297, 305

(6th Cir. 2002) (citing Claybrook, 274 F.3d at 1105). While plaintiffs argued that the “moment of

seizure” began with the officers’ initial approach in segment one, the defendants argued that the

moment of seizure encompassed only the shots fired that killed the defendant in segment three.

Id. The court, however, adopted neither approach, and held that both segments two and three

were relevant to the reasonableness inquiry, while segment one was not. Id.

The only justification provided by the court for this division of events is that the court

“simply disagree[d] with [the defendant’s] contention that the initial exchange of bullets should

not weigh upon [the] analysis.” Claybrook, 274 F.3d at 1105. Such an arbitrary approach to

defining the boundaries of a constitutional inquiry causes a sense of confusion and unjustness in

the administration of the courts. A broad reading of “totality,” that includes consideration of pre-

seizure conduct, provides the best means by which to avoid such arbitrariness while holding true

to the plain meaning of Graham’s “totality of the circumstances” test.

11

In addition, a broad interpretation of “totality of the circumstances” does not contradict

Graham’s direction that the objective reasonableness test “embody allowance for the fact that

police officers are often forced to make split-second judgments” by judging reasonableness from

the perspective of a reasonable officer “in the moment.” Graham, 490 U.S. at 396–97. A

reasonable officer on the scene would be aware of the underlying nature of the crime at issue as

well as the manner in which the warrant was executed. In other words, a reasonable officer in

the moment would be aware of their own pre-seizure conduct. Deering v. Reich, 183 F.3d 645,

651 (7th Cir. 1999) (holding that both the time and manner of executing a seizure are a part of

the totality of the circumstances to be considered by the court). Thus, under a true reading of

Graham, “it is plain that reasonableness depends on not only when a seizure is made, but also

how it is carried out.” Garner, 471 U.S. at 8.

2. Consideration of pre-seizure events is most consistent with the approach utilized in Supreme Court precedent.

Not only is consideration of the events leading up to the moment of the use of force

justified by the plain meaning of “totality,” but it is also the most accurate interpretation of the

approach utilized in Supreme Court precedent. While this Court has never explicitly interpreted

the scope of “totality of the circumstances,” the Court’s decisions imply that the circumstances

leading up to the moment of the use of force may be validly considered. For example, in Brower

v. County of Inyo, after determining that use of a roadblock to stop a suspect in a car chase did

indeed constitute a seizure, the Court remanded for a determination of whether the police acted

reasonably in their construction of the roadblock. 489 U.S. 593, 599–600 (1989). If conduct

preceding the moment of seizure could not be considered, “remand in Brower would have been

pointless, for the only basis for saying the seizure was unreasonable was the police’s pre-seizure

planning and conduct.” Abraham, 183 F.3d at 292; see also St. Hilaire v. City of Laconia, 71

12

F.3d 20, 26 (1st Cir. 1995) (interpreting an expansive definition of totality of the circumstances

as consistent with the Supreme Court’s approach in Brower).

3. Consideration of pre-seizure events is necessary to prevent abuse of discretion by public officials.

While the Fourth Amendment protects an individual’s interest in bodily integrity free

from intrusive government action, that interest may be circumscribed to protect governmental

interests in public safety and order. Thus, in spite of the Fourth Amendment, officers are

justified in using deadly force when a fleeing felon poses an immediate threat to the safety of the

officers or the public at large. Garner, 471 U.S. at 11. Even an officer who negligently gets

himself into a dangerous situation may reasonably use force in self-defense. Billington v. Smith,

292 F.3d 1177, 1190 (9th Cir. 2002). However, to prevent abuse of discretion by public officers,

the Fourth Amendment requires that the nature and quality of an intrusion on an individual’s

rights be balanced against the “countervailing governmental interests at stake.” Graham, 490

U.S. at 395.

In cases where an officer intentionally or recklessly provokes a violent response, the

balancing of interests required by Graham does not support finding the officer’s subsequent use

of force reasonable. If a “fleeing felon is converted to a ‘threatening’ fleeing felon solely based

on the actions of a police officer . . . we have no countervailing governmental interest in

unreasonable police conduct that would justify a greater intrusion on the individual’s rights”

through the use of increased force. Estate of Starks v. Enyart, 5 F.3d 230, 234 (7th Cir. 1993)

(emphasis in original).

Because there is no countervailing governmental interest in unreasonable police conduct,

several circuits have upheld the rule that when an officer intentionally or recklessly provokes a

violent response, “that provocation may render the officer’s otherwise reasonable defensive use

13

of force unreasonable.” Billington, 292 F.3d at 1190 (emphasis in original); see Hastings v.

Barnes, 252 Fed. App’x 197, 203 (10th Cir. 2007) (affirming a denial of qualified immunity

where officers’ pre-seizure actions arguably escalated a stand-off with a suicidal man and

rendered the use of force necessary); Allen v. Muskogee, Okl., 119 F.3d 837, 840 (10th Cir.

1997) (remanding to determine whether actions of police officers who shot and killed a suicidal

man amounted to reckless and deliberate conduct that unreasonably created the need to use

force); Alexander v. City & Cty. of San Francisco, 29 F.3d 1355, 1366 (9th Cir. 1994)

(overturning summary judgment where officer’s illegal forcible entry into the home rendered

their otherwise reasonable use of force unreasonable); Estate of Starks, 5 F.3d at 234 (affirming

denial of qualified immunity where an officer arguably created the need to use deadly force in

self-defense). This rule best achieves the balance between individual and governmental interests

espoused in Graham.

4. Consideration of pre-seizure events does not give rise to a general duty to avoid the risk of violence.

Courts that support the freeze-frame approach argue that consideration of pre-seizure

conduct in essence gives rise to generalized duty to avoid the risk of violence. See Cole, 993

F.2d at 1334 (arguing that the Constitution does not require a duty to pursue the most prudent

course of conduct); Schulz, 44 F.3d at 648 (arguing that a duty to avoid unreasonable or ill-

advised conduct in general is not Constitutionally required). A generalized duty to avoid the risk

of violence would essentially raise negligent conduct, sufficient for tort liability, to the level of a

constitutional violation. In addition, if officers had a general duty to avoid the risk of violence,

that duty would be “so broadly defined that it [would] give[] inadequate notice of what would

violate the duty.” St. Hilaire, 71 F.3d at 27. A lack of adequate notice implicates vagueness and

due process concerns.

14

To avoid this, all of the tests espoused by the various circuits that support consideration

of pre-seizure conduct include limitations that successfully prevent consideration of such

conduct from growing into a general duty to avoid the risk of violence. For example, the Third

Circuit uses general rules of causation to prevent consideration of attenuated conduct unrelated

to the specific use of force. Abraham, 183 F.3d at 292 (“We are not saying, of course, that all

preceding events are equally important, or even of any importance . . . But what makes these

prior events of no consequence are ordinary ideas of causation, not doctrine about when the

seizure occurred.”). In addition, the Tenth Circuit will only consider reckless or deliberate

conduct that is immediately connected to the seizure. Hastings, 252 Fed. App’x at 203 (“In other

words, mere negligent conduct . . . is not to be considered.”).

Of all of the circuits, the Ninth Circuit provides the strictest limitations on the

consideration of pre-seizure conduct. Not only must the conduct be intentional or reckless, but it

must also amount to the level of an independent Fourth Amendment violation. Billington, 292

F.3d at 1189. When an officer’s conduct does amount to an intentional or reckless independent

Fourth Amendment violation, “that provocation may render the officer’s otherwise reasonable

defensive use of force unreasonable.” Id. at 1190 (emphasis in original). With appropriate

limitations such as these preventing consideration of all pre-seizure conduct, courts do not risk

constitutionalizing a general duty to avoid non-negligent behavior and are justified in

considering pre-seizure conduct.

B. PETITIONER’S USE OF FORCE WAS UNREASONABLE IN LIGHT OF THE RELEVANT FACTS AND CIRCUMSTANCES LEADING UP TO THE MOMENT OF THE USE OF FORCE.

Under the proper interpretation of “totality of the circumstances,” Petitioner’s use of

force was excessive and thus unreasonable under the Fourth Amendment. Under the Ninth

15

Circuit’s standard—the most stringent of all the circuits that consider pre-seizure conduct—

Petitioner’s use of force was excessive because the need for force was provoked by an

intentional, independent Fourth Amendment violation. In Billington, the Ninth Circuit

summarizes its standard for consideration of pre-seizure conduct: “[I]f . . . an officer

intentionally or recklessly provokes a violent response, and the provocation is an independent

constitutional violation, that provocation may render the officer’s otherwise reasonable

defensive use of force unreasonable.” 292 F.3d at 1190. Under the Billington standard, the

Ninth Circuit held that the police committed an independent Fourth Amendment violation when

they used unreasonable force to enter the house of a mentally ill man without an arrest warrant or

exigent circumstances. Alexander v. City & Cty. of San Francisco, 29 F.3d 1355, 1360–61 (9th

Cir. 1994). Because an independent Fourth Amendment violation occurred, the officers were not

immune from liability for shooting and killing the man, even though they did so in self-defense.

Id. at 1366–67. Similarly, in Espinosa v. City & Cty. of San Francisco, the court denied

qualified immunity to officers where their entry into an apartment without a warrant was

arguably illegal, rendering their subsequent use of force against the apartment’s resident

unreasonable. 598 F.3d 528, 538–39 (9th Cir. 2010).

In the case at hand, Petitioner’s entry into Respondent’s home amounted to an

independent Fourth Amendment violation against Respondent. After seeing Respondent film

interactions between police officers and protesters in a public park in violation of Craven Gen.

Stat. § 15A-287, Petitioner followed Respondent to her home and demanded entry. (R. at 3.)

When Respondent refused to grant entry to her home due to Petitioner’s lack of uniform and a

history of recent robberies in Craven, Petitioner kicked down the door to gain entry. Id. This

entry violated the Fourth Amendment, which prohibits police from making warrantless and

16

nonconsensual entry into a suspect’s house to make a routine arrest. Payton v. New York, 445

U.S. 573, 576 (1980). Because the exceptions of consent or exigent circumstances did not exist,

Pearson v. Callahan, 555 U.S. 223, 223 (2009), the district court granted summary judgment to

Respondent on her claim that Petitioner’s warrantless entry violated her Fourth Amendment

rights. (R. at 2.) Petitioner did not challenge this grant of summary judgment. Id.

Under the Billington standard, Petitioner’s use of force against Respondent was

unreasonable because the preceding Fourth Amendment violation was intentional or reckless,

and a direct cause of the subsequent use of force. The case at hand is analogous to the cases of

Alexander and Espinosa. The officer’s warrantless entry into the home, in light of the minor

violation at issue and the lack of exigent circumstances, rises to the level of reckless disregard of

Petitioner’s constitutional rights. In addition, the officer’s forcible and illegal entry into the

home was the direct provocation for Petitioner’s attempt to flee into her bedroom and grab her

backpack. (R. at 3.) Thus, even if Petitioner’s use of force would otherwise be characterized as

justifiable self-defense, that use of force is unreasonable when provoked by Petitioner’s illegal

entry into Respondent’s home.

C. PETITIONER’S USE OF FORCE WAS UNREASONABLE IN LIGHT OF THE RELEVANT FACTS AND CIRCUMSTANCES EXISTING AT THE MOMENT OF THE USE OF FORCE.

Even if the Court determines that the Billington test is an inaccurate interpretation of

“totality of the circumstances,” Petitioner’s use of force against Respondent was still

unreasonable under the freeze-frame interpretation of Graham. Graham requires courts to

balance the individual’s interest in freedom from invasive government action against the

countervailing interests of the state. 490 U.S. at 396. In the case at hand, the invasion of

17

Respondent’s Fourth Amendment interests was great, as Petitioner’s use of physical force caused

brain damage that impairs Respondent’s motor skills and ability to speak. (R. at 3).

To determine the governmental interest at stake, Graham directs courts to consider the

severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the

officers or others, and whether she was actively resisting arrest or attempting to flee. Graham,

490 U.S. at 396. Under a freeze-frame interpretation of Graham, the court must consider the

weight of these factors only at the moment when the use of force occurred. Greenidge, 927 F.2d

at 792.

In the case at hand, consideration of the Graham factors reveals a governmental interest

that does not support the level of force exerted by Petitioner. Hitting a suspect in the head with a

police baton arguably borders on the level of deadly force. While Respondent survived this

particular administration of force—albeit with permanent disabilities—a blow to the head

administered by a strong police officer has the potential to be just as deadly as a bullet. (R. at 3.)

In Garner, the Court held that use of deadly force could not be justified solely by the need to

stop a fleeing felon. 471 U.S. at 11.

Regardless of whether or not the court characterizes a blow to the head with a police baton

as deadly force, Officer Piper’s use of permanently incapacitating force in the instant case cannot

be justified solely by the need to stop Respondent from fleeing. The crime that Respondent was

suspected of was a mere misdemeanor, of less severity than the crime at issue in Garner. (R. at

4.) Just as the district court found that warrantless entry into the home was not justified by the

need to preserve evidence of a “minor misdemeanor” (R. at 4–5), the need to apprehend the

suspect of such a minor misdemeanor does not justify the use of extreme force. While “[i]t is no

doubt unfortunate when a suspect who is in sight escapes,” the harm that results from failing to

18

apprehend the suspect does not justify the use of force that permanently incapacitates the

individual. Garner, 471 U.S. at 11. Thus, to prove that his use of force was reasonable,

Petitioner must show that Respondent posed an immediate threat of danger to either others or

himself. Id.

In the present case, Petitioner had no reason to suppose that Respondent posed a threat of

imminent harm to others. In general, officers may reasonably believe that the suspect poses an

imminent threat to the safety of others when the suspect has previously endangered the lives of

innocent bystanders or is known to be carrying a weapon. For example, in Cole v. Bone, the

court held that officers were justified in believing that a trucker engaged in a high-speed car

chase posed an imminent threat to the safety of others because the trucker had been careening

through traffic for fifty miles, had forced several motorists off the road, and had attempted to ram

the police officers’ vehicles. 993 F.2d at 1333–34. Similarly, in Thompson v. Mercer, the court

held that officers were justified in using deadly force against a man who was in possession of a

firearm, had kidnapped an innocent bystander, and had endangered the lives of several third-

parties in a high-speed car chase. 762 F.3d 433, 436 (5th Cir. 2014). In comparison,

Respondent Lockwood had not threatened or endangered the lives of any innocent bystanders

through her actions prior to the arrest. Neither was she known to be in possession of a firearm

and an unsound mental disposition. Indeed, at the moment force was administered, Respondent

was in her own house and was not attempting to interact with any third parties. (R. at 3). Thus,

Petitioner’s use of force cannot be justified on the grounds that Respondent posed an imminent

threat of danger to others.

Finally, Petitioner did not reasonably believe that Respondent posed an imminent threat

of danger to Petitioner himself. While extreme physical force by an officer is justified when

19

used in self-defense, the officer must have a reasonable belief that the suspect poses an imminent

threat of danger to his own safety in light of the totality of the circumstances. Garner, 471 U.S.

at 11. In the present case, Petitioner never saw a weapon in the possession of Respondent. (R. at

3.) Even in the absence of a visible weapon, however, Courts still generally uphold the use of

physical force if the suspect’s actions suggest that they have a hidden weapon and are about to

use it against the officer. For example, in Billingsley v. City of Omaha, the court held that an

officer was justified in killing a fleeing suspect who had suddenly crouched and rotated his

shoulder as if he was drawing a gun. 277 F.3d 990, 995 (8th Cir. 2002). Similarly, in Reese v.

Anderson, the court held that an officer was justified in shooting the suspect of a car chase when

the suspect reached down as though retrieving a gun. 926 F.2d 494, 500–01 (5th Cir. 1991).

In the case at hand, however, Respondent did not make any motions that indicated she was

retrieving a weapon such as would justify the second blow she received. When Petitioner

entered the bedroom in pursuit of Respondent, he observed Respondent reaching for a backpack

on her bed. (R. at 3.) At that instant in time, Petitioner may have been justified in believing that

Respondent, who was terrified of an imminent attack by a stranger, was reaching for a weapon

hidden in her backpack. Thus, Petitioner’s first blow to Respondent’s legs may well be justified

as an act of self-defense. However, once Respondent had been felled by Petitioner’s first blow,

the record does not reveal that Respondent made any further motions towards her backpack.

Rather, the record states that Respondent first reached for her camera and then struggled to stand

back up. (R. at 3). Neither movement indicated that Respondent was attempting to withdraw a

weapon to attack Petitioner. Thus, Petitioner had no reason to believe that his own safety was in

imminent danger, and Petitioner’s second blow, one of particularly debilitating force, cannot be

justified as reasonable under a totality of the circumstances.

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II. THE FIRST AMENDMENT RIGHT TO FREEDOM OF THE PRESS ALLOWS INDIVIDUALS TO FILM PUBLIC OFFICIALS OPERATING IN AN OFFICIAL CAPACITY IN PUBLIC.

This Court should affirm the decision of the United States Court of Appeals for the

Thirteenth Circuit because Petitioner’s regulation and eventual eradication of Respondent’s

video recording violated Respondent’s First Amendment rights to freedom of the press. The

First Amendment to the United States Constitution states, “Congress shall make no law . . .

abridging the freedom of speech, or of the press . . . or the right of the people . . . to petition the

government for a redress of grievances.” U.S. Const. amend. I. Inherent in the First Amendment

is the right to receive information and ideas. Stanley v. Georgia, 394 U.S. 557, 564 (1969).

The law recognizes little distinction between the freedoms of speech and the press

because a limited definition of the press would create barriers to the entry of ideas and

information into the public sphere. Note, The Rights of the Public and the Press to Gather

Information, 87 Harv. L. Rev. 1505, 1508 (1974). Press credentials and formalized training do

not endow the press as an institution with more First Amendment rights than an individual.

Branzburg v. Hayes, 408 U.S. 665, 684 (1972). Additionally, contemporary courts have

recognized that the freedom of the press cannot distinguish between professionals and

individuals because current news stories are just as likely to be published by individuals as they

are by a traditional reporter. Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011). Therefore,

traditional newsgathering and information disseminating protections are extended equally to the

press and public.

Making an audiovisual recording is included within the First Amendment freedoms of

speech and press because it serves as a necessary step in promulgating valuable information and

ideas. Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012).

21

Restricting the use of an audiovisual recording is equivalent to restricting its dissemination, and

thus equivalent to impeding information and ideas from entering the public domain. Id. at 596.

In this case, Respondent’s First Amendment rights to film police officers operating in an official

capacity in public were violated because Craven Gen. Stat. § 15A-287 criminalizes recording

conversations without the permission of all parties. The Craven statute lacks properly tailored

restrictions to prevent undue infringement on First Amendment rights.

A. AS APPLIED, CRAVEN GEN. STAT. §15A-287 DOES NOT FURTHER AN IMPORTANT GOVERNMENTAL INTEREST AND DOES NOT CREATE A REASONABLY CLOSE FIT BETWEEN THE LAW’S INTENT AND EXECUTION.

Although Craven Gen. Stat. § 15A-287 does not prohibit a particular message, the statute

is unconstitutional because it fails to withstand the content-neutral evaluation of intermediate

scrutiny. When assessing the validity of restrictions on First Amendment rights, Courts apply

varying standards contingent upon whether the restriction seeks to regulate the message itself or

the medium of expression. See U.S. v. O’Brien, 391 U.S. 367, 377 (1968).

Regulations that restrict a particular message or subject matter are content-based and

subject to strict scrutiny. A law can be content-based either because it discriminates against a

particular topic or because the government’s justification for the law depends on a message or

idea. Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2227 (2015). The primary inquiry to

determine if restrictions are concerned with restricting a message, content, or subject matter is to

determine whether the government inherently disagrees with the message. Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). In this case, Craven Gen. Stat. § 15A-287 is not meant to

censor a particular type of message, nor is its justification based on the content of a specific

message. Therefore, Craven Gen. Stat. § 15A-287 must be assessed under a content-neutral

inquiry.

22

Content-neutral restrictions regulate a medium of expression instead of the expression’s

content. The Thirteenth Circuit held that Craven Gen. Stat. § 15A-287 is content-neutral because

it does not target a specific message but instead restricts a medium of expression in order to

protect conversational privacy. (R. at 10.) The constitutional validity of content-neutral

restrictions are evaluated under intermediate scrutiny standard. The government must prove the

regulation (1) furthers an important governmental purpose and (2) demonstrates a “close fit”

between the law’s intention and execution. Alvarez, 679 F.3d at 605.

In the present case, Craven Gen. Stat. §15A-287 as applied does not further an important

governmental interest because public officials acting in an official capacity in public locations

sacrifice their individual privacy rights to promote the public interest. Bartnicki v. Vopper, 532

U.S. 514, 534 (2001). Additionally, enforcement of Craven Gen. Stat. § 15A-287 is not

appropriately tailored to protect conversational privacy because its language is overbroad and

unnecessarily burdens First Amendment rights. (R. at 4.)

1. As applied, Craven Gen. Stat. §15A-287 fails to further an important governmental interest because public officials acting in official capacities in public forfeit their individual privacy rights to protect the public interest.

Public officials acting in an official capacity in public locations necessarily sacrifice their

individual privacy rights when they assume the role and power of the state. Public officials

performing official duties in public have a diminished expectation of and right to privacy

because the abuse of the office can have great potential for social harm. Garrison v. Louisiana,

379 U.S. 64, 77 (1964); New York Times v. Sullivan, 376 U.S. 254, 270 (1964); Coursey v.

Greater Niles Tp. Pub. Corp., 40 Ill.2d 257, 265 (Ill.1968). The acquisition and dissemination of

information about police officers and other public officials is protected by the First Amendment

because it protects the “free discussion of governmental affairs” and with it, self-governance.

23

Mills v. Alabama, 384 U.S. 214, 218 (1966). Police officers are public officials, Time, Inc. v.

Pape, 401 U.S. 279, 284 (1971), and the public has an interest in the responsible exercise of

police discretion granted by the state. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1035–36

(1991).

Applicable to this case, the Eleventh Circuit has recognized a First Amendment right to

create audiovisual recordings of what public officials do on public property because it pertains to

matters of public interest. Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000).

Furthermore, the Eighth Circuit ruled officers conducting official business in a public jail were

not entitled to a reasonable expectation of privacy because of the public nature and societal

impacts of their work. Angel v. Williams, 12 F.3d 786, 790 (8th Cir. 1993). When governmental

officials assume the authority of the state, the countervailing public interest in transparent

government action necessarily weakens their individual right to privacy. Therefore, the officers

that Respondent filmed were not entitled to privileged communications with members of the

public conducted in a public park. (R. at 3.)

Opponents of the First Amendment freedom to film the actions of police officers

performing their duties in public claim that documenting police action would distract officers

from their responsibilities and dissuade the public from speaking to them for fear of being

recorded. However, these claims are unsubstantiated as applied to the facts of the case. See

Alvarez, 679 F.3d at 611 (Posner, R., dissenting). The Alvarez majority found that even officers

involved in programs that required open recording had reasonable means by which to secure

their communications and ensure citizens’ comfort if disclosing confidential information.

Alvarez, 679 F.3d at 607. Although Respondent recorded the police action from an obscured

position behind bushes, the record suggests that Petitioner was able to see what Respondent was

24

doing from some distance away and therefore negates the argument that Respondent was not

openly recording. (R. at 3.)

Additionally, Respondent’s actions are afforded more protection because she did not

interfere with the police action, nor did she distract from the performance of their duties. In Glik,

the Court’s majority found that if recording police officers in a public space does not interfere

with the officer’s performance or otherwise “molest” them, the recording is not subject to

limitation. 655 F.3d at 84 (quoting Iacobucci v. Boulter, 193 F.3d 14, 25 (1999) (holding that

filming a group of people in public from “a comfortable remove” and without intentionally

annoying them was protected by the First Amendment)). Additionally, the Glik court found the

same self-restraint demanded of law enforcement officers in the face of provocation can and

must be expected when they are only the subject of a recording “that memorializes, without

impairing, their work in public spaces.” Id. The record suggests Respondent was a comfortable

distance from officers and maintained this distance throughout the duration of recording. Id. By

refraining from interjecting herself into the action, Respondent allowed the officers to perform

their duties while documenting the tactics and means they employed. (R. at 3.)

Even if the police officers had a general expectation of privacy, their expectation of

privacy would fail to be accepted as reasonable under the circumstances. Invasion of privacy

claims largely fail when third parties can observe the activities and overhear the exchanges.

Forster v. Manchester, 410 Pa. 192, 197 (Pa. 1963). When assessing an individual’s reasonable

expectation of privacy to oral communications in public, the Fifth Circuit has considered the

volume of the conversation, the proximity of others to the conversation, the affirmative actions

taken by the speakers to protect their conversations, the need for technological enhancements to

hear the conversation, and the place the conversation took place. Kee v. City of Rowlett, Tex.,

25

247 F.3d 206, 213–14 (5th Cir. 2001). Petitioner and the other police officers did not have a

reasonable expectation of privacy because the conversations occurred in public at a volume that

could easily be overheard by passerby. The conversations between the officers and

environmentalists were “heated,” implying they occurred at an increased volume that could

easily be heard by passersby and Respondent’s video camera without additional amplification.

(R. at 3.) While it is not clear in the record how loud the officers were, the fact that Respondent

continued to film the police action despite the officer’s attempt to dissuade her implies that she

could plainly hear the officer’s remarks. Id. Neither individuals nor police officers could

reasonably expect full privacy rights under the circumstances presented.

2. As applied, Craven Gen. Stat. §15A-287 fails to demonstrate a reasonably close fit between the law’s intention and enforcement because the law is applicable to conversations that have no reasonable expectation of privacy.

In light of Craven Gen. Stat. § 15A-287’s legislative intent to protect conversational

privacy, the law is inherently overbroad and inappropriately tailored to serve the state’s interest

without infringing on First Amendment rights. To satisfy the second prong of the intermediate

scrutiny test, the government must show a reasonably close fit between the law’s intent and

enforcement. Alvarez, 679 F.3d at 605. Craven Gen. Stat. § 15A-287 states “a person is subject

to prosecution for eavesdropping if he or she records a conversation without the consent of all

parties involved.” (R. at 4.) The statue broadly defines “conversation” to include “any oral

communication between two or more persons regardless of whether one or more of the parties

intended their communications to be of a private nature under circumstances reasonably

justifying that expectation,” and therefore creates a complete ban on recording any conversation

without consent of all parties (R. 4.) This complete ban precludes any conversation from being

preserved by any means, regardless of the expectation of privacy.

26

In limited instances, the Court has found complete bans to be appropriately tailored if

each activity within the ban’s power is an “appropriately targeted evil.” Frisby v. Schultz, 487

U.S. 474, 485 (1988). However, Craven Gen. Stat. § 15A-287 encompasses far more than

“targeted evils” because its language necessarily includes all conversations regardless of the

parties’ expectation of privacy. Read literally, Craven Gen. Stat. § 15A-287 would bar the police

from recording audio or audiovisual evidence of wrongdoings without the consent of all parties

involved, the public from capturing random acts of kindness, and the individual from acting in

the public interest. Had Respondent filmed officers complimenting the community activists, she

still would have been in violation of Craven Gen. Stat. § 15A-287 and subject to criminal

liability.

Similarly broad wiretapping statutes in Massachusetts and Illinois have had exceptions

for recording police activity introduced by the courts to ensure that the law’s ends comport with

the law’s intentions. Mass. Gen. Laws 272 § 99(c)(1) criminalizes the interception of oral

communications defined as “speech, except such speech as is transmitted over the public air

waves by radio.” M.G.L.A. 272 § 99(c)(1)(2016). But after Simon Glik was arrested and

charged for using a cell phone camera to record the arrest of a young man in public, the First

Circuit allowed an exception to criminal liability under the statute to allow individuals to

videotape police officers performing duties in public in order to uphold their First Amendment

rights to gather and disseminate information. Glik, 655 F.3d at 82.

Illinois law employs the same definition of a “private conversation” as Craven Gen. Stat.

§ 15A-287’s “conversation,” which is “any oral communication between 2 or more persons . . .

when one or more of the parties intended the communication to be of a private nature under

circumstances reasonably justifying that expectation.” 720 I.L.C.S. 5/14-1(d) (2016). Ill. Comp.

27

Stat. 5/14-2(a)(1) covers any oral communication regardless of whether the communication was

intended to be private. Id. In Alvarez, the Seventh Circuit found that the statute impeded the

ACLU’s First Amendment right to make an audio or audiovisual recording of police activity and

remanded the case with instructions to bar the statute from applying to filming police officers in

public places. Alvarez, 679 F.3d at 597.

Criminalizing all nonconsensual audio recording limits the information that can be

introduced into the public domain and thus “burdens First Amendment rights.” Id. Any

restrictions on First Amendment rights in traditional public forums, such as those in Glik,

Alvarez, and the Lockwood case, are “sharply circumscribed.” Perry Educ. Ass’n v. Petty Local

Educators’ Ass’n, 460 U.S. 37, 45 (1983); Alvarez, 679 F.3d at 597; Glik, 655 F.3d at 82.

“Quintessential” public forums like parks, sidewalks, and streets must be left open for the

“purposes of assembly, communicating thoughts between citizens, and discussing public

questions” as per the “privileged, immunities, rights, and liberties of citizens.” Hague v. Comm.

for Indus. Org., 307 U.S. 496, 515 (1939). In Respondent’s case, the very fact that Craven Gen.

Stat. § 15A-287 could apply to such a traditional public forum as a public park is indicative of

the fact that the statute is overly broad and inappropriately tailored to support the government’s

important interest of protecting conversational privacy.

Craven Gen. Stat. § 15A-287 also fails intermediate scrutiny because the law as applied

fails to provide ample alternative channels for Respondent to communicate her message. Perry,

460 U.S. at 45; Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). In cases

where bans on audiovisual and audio recording were upheld, ample alternative means of

communicating the message were provided to maintain First Amendment freedoms. For

example, in Nixon v. Warner Communications, Inc, the Court prohibited the release of the Nixon

28

audiotapes because the media had already promulgated the content of the tapes. 435 U.S. 589,

609 (1978). In United States v. Kerley, the Court found that denying a request to film court

proceedings did not violate the First Amendment because there were other ample means of

recording the information. 753 F.2d 617, 620–22 (7th Cir. 1985). In the present case, the

wording of Craven Gen. Stat. § 15A-287 precludes “recording” conversations without defining

recording. (R. at 4.) Therefore, even the seemingly innocuous action of transcribing verbatim

what the officers said to the protestors could be conveyed as recording under the statute. (R. at

4.) Because any means of recording are precluded under Craven Gen. Stat. §15A-287, it again

fails the intermediate scrutiny test because the statute imposes overly broad restrictions on

fundamental First Amendment rights and is therefore unconstitutional as applied.

B. CONFISCATION AND ERASURE OF RESPONDENT'S VIDEO RECORDING CONSTITUTES PRIOR RESTRAINT AND UNDULY BURDENS FIRST AMENDMENT RIGHTS.

Regardless of the constitutionality of Craven Gen. Stat. § 15A-287, Respondent’s First

Amendment rights were violated through prior restraint. Sir William Blackstone noted in

Commentaries on the Laws of England that “[e]very freeman has an undoubted right to lay what

sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” 4

BI. Com 151, 152. Prior restraint on speech and publication is maintained as “the most serious

and least tolerable infringement on First Amendment rights” because it “freezes” speech.

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Restricting the use of a video

recorder suppresses speech, but just as restrictive is an impediment to the dissemination of the

resulting recording. Alvarez, 679 F.3d at 596. In Robinson v. Fetterman, the Eastern District of

Pennsylvania found that Robinson’s First Amendment rights were unconstitutionally burdened

by prior restraint because he was unable to publish what he had filmed of the defendants’

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conduct. 378 F.Supp.2d 534, 541 (E.D. Pa. 2005). Similarly, after the incident at Respondent’s

home, police officers deprived Respondent of access to the footage of the police action, refused

to provide her with a copy of the footage after deleting it from her video camera, and refused to

disseminate the video to the public. (R. at 4.) These actions unequivocally freeze Respondent’s

ability to publish a visual account of what happened in Diagon Park, and therefore violate her

First Amendment rights.

Even if Craven Gen. Stat. § 15A-287 is constitutional and Respondent is found to have

broken a valid law, her First Amendment freedoms to speech and press were still violated by the

police’s actions. The constitutional freedom from prior restraint is not lost despite potential

criminal charges. Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 720 (1931). The

government carries a “heavy burden” to establish the constitutional validity of a prior restraint.

New York Times Co. v. U.S., 403 U.S. 713, 714 (1971) (per curiam); Near, 283 U.S. at 733. The

First Amendment prohibits the government from unjustifiably limiting information pursuant to

the public interest. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). According

to the record, the police have put forth no compelling justification for denying Respondent’s

request for the footage (R. at 4). The police unconstitutionally restricted Respondent’s First

Amendment rights, and with them, deprived the public of information integral to the functioning

of a successful society.

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CONCLUSION

For the foregoing reasons, Respondent asks that the Supreme Court of the United States

affirm the holdings of the Thirteenth Circuit.

Respectfully submitted,

Counsel for the Respondent

January 9, 2017