No: 16-648

In the Supreme Court of the United States

October Term, 2016

HARRY PIPER,

Petitioner,

v.

LUNA LOCKWOOD,

Respondent.

On Writ Of Certiorari

To The United States

Court Of Appeals For The Thirteenth Circuit

Brief for Petitioner, Harry Piper

Team D

i

Table of Contents

Table of Authorities ............................................................................................................ ii

Statement of the Questions Presented for Review .............................................................. 1

Statement of the Case.......................................................................................................... 2

Summary of the Argument.................................................................................................. 4

Argument ............................................................................................................................ 6

I. CONSIDERING THE FACTS AND CIRCUMSTANCES AT THE MOMENT OF

THE USE OF FORCE IS MORE REPRESENTATIVE OF THE COURT’S DECISION IN

GRAHAM AND BETTER FITS THE EXCESSIVE FORCE REASONABLENESS INQUIRY . 6

A. Officers are frequently involved in rapidly-evolving situations and must make

split-second decisions ................................................................................................................. 6

B. The lower court misinterpreted Whitlow v. City of Louisville, Billington v.

Smith, and Hastings v. Barnes .................................................................................................. 10

II. RECORDING CONVERSATIONS IN PUBLIC IS NOT EXPRESSIVE

CONDUCT AND GENERALLY APPLICABLE LAWS THAT PROHIBIT RECORDING

WITHOUT ALL PARTIES’ CONSENT DO NOT VIOLATE THE FIRST AMENDMENT ... 14

A. Recording the police is neither speech nor expressive conduct ...................... 15

B. Even if recording the police is expressive conduct, content-neutral laws

proscribing such expression survive intermediate scrutiny ...................................................... 19

C. The First Amendment does not guarantee an unlimited right to gather and

receive information ................................................................................................................... 21

Conclusion ........................................................................................................................ 26

ii

Table of Authorities

Supreme Court Associated Press v. NLRB, 301 U.S. 103 (1937) .......................................................................... 24

Bartnicki v. Vopper, 532 U.S. 514 (2001) .............................................................................. 19, 23

Branzburg v. Hayes, 408 U.S. 665 (1972) ........................................................................ 21, 22, 24

Broadrick v. Okla., 413 U.S. 601 (1973) ...................................................................................... 21

Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................. 17

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) ....................................................................... 22

First Nat’l Bank of Bos. V. Bellotti, 435 U.S. 765 (1977) ............................................................ 18

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

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ................................................................................. 22

Mills v. Alabama, 384 U.S. 214 (1966) ........................................................................................ 20

N.Y. Times Co. v. United States, 403 U.S. 713 (1971) ................................................................. 23

Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) ..................................................... 23

Tennessee v. Garner, 471 U.S. 1 (1985) ..................................................................................... 6, 9

Texas v. Johnson, 491 U.S. 397 (1989) ........................................................................................ 15

Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969) ..................... 15

United States v. O’Brien, 391 U.S. 367 (1968) ...................................................................... 15, 19

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ........................................................ 15, 19, 20

Zemel v. Rusk, 381 U.S. 1 (1965) ........................................................................................... 22, 23

Circuit Courts ACLU of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012)...................................................... 17, 18, 20

Alexander v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994).............................. 14

Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997) ....................................................................... 11

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

Claybrook v. Birchwell, 274 F.3d 1098 (6th Cir. 2001) ............................................................... 12

Fraire v. Arlington, 957 F.2d 1268 (5th Cir. 1992) .................................................................... 8, 9

Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) ......................................................................... 22, 24

Greenidge v. Ruffin, 927 F.2d 789 (4th Cir. 1991) ....................................................................... 10

Hastings v. Barnes, 252 Fed. App’x. 197 (10th Cir. 2007) .................................................... 12, 13

Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) .............................................. 16, 18, 21

Potts v. City of Lafayette, 121 F.3d 1106 (7th Cir. 1997) ............................................................. 23

Salim v. Proulx, 93 F.3d 86 (2nd Cir. 1996) ............................................................................... 7, 8

Schulz v. Long, 44 F.3d 643 (8th Cir. 1995) ................................................................................. 10

Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) ......................................................... 19

Szymecki v. Houck, 353 F. App’x 852 (4th Cir. 2009) ................................................................. 19

True Blue Auctions v. Foster, 528 F. App’x 190 (3d Cir. 2013) .................................................. 19

United States v. Kerley, 753 F.2d 617 (7th Cir. 1985).................................................................. 23

Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177 (3d Cir. 1999) .... 21, 23, 24

Whitlow v. City of Louisville, 39 Fed. App’x. 297 (6th Cir. 2002) ............................................... 11

Young v. City of Providence, 404 F.3d 4 (1st Cir. 2005) ................................................................ 9

District Courts Food Lion v. Capital Cities/ABC, 984 F. Supp. 923 (M.D.N.C. 1997) ........................................ 26

Garcia v. Montgomery County, 2015 WL 6773715 (D. Md. Nov. 5, 2015) ................................ 29

iii

Lawson v. Hilderbrand, 88 F. Supp. 3d 84 (D. Conn. 2015) ........................................................ 29

Mocek v. City of Albuquerque, 3 F. Supp. 3d 1002 (D.N.M. 2014) ............................................. 29

Montgomery v. Killingsworth, 2015 WL 289934 (E.D. Pa. Jan. 22, 2015) .................................. 29

Ortiz v. City of New York, No. 2013 WL 5339156 (S.D.N.Y. Sept. 24, 2013) ............................ 29

Pluma v. City of New York, 2015 WL 1623828 (S.D.N.Y. Mar. 31, 2015) ................................. 29

Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504 (D.N.J. 2006) ............................ 19

Williams v. Boggs, 2014 WL 585373 (E.D. Ky. Feb. 13, 2014) .................................................. 29

Statutes Craven Gen. Stat. § 15A-287 ................................................................................................. passim

Statement of the Questions Presented for Review

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.

2

Statement of the Case

On January 20, 2014, Craven police initiated an action to clear a homeless encampment

to allow construction workers to build a fence. R at 2. Community activists had grown the

encampment over a period of eight months in an attempt to prevent development on the land. Id.

Respondent was one such activist. R at 3.

On the day of the removal, Respondent was present with her video camera. Id.

Respondent recorded the removal of people from the encampment. Id. A police officer observed

Respondent filming and told her to stop because she was in violation of Craven General Statute

§ 15A-287, which “makes it illegal for someone to record a conversation without the consent of

all those involved.” Id.

Respondent momentarily stopped recording but immediately moved behind some bushes

and resumed. Id. After filming a heated encounter between the police and those in the park,

Respondent left her secluded position and walked out of the park to her nearby home. Id.

Harry Piper observed Respondent stop recording, at the police officer’s request, only to

move to a secluded position and resume recording. Id. Piper was a Craven police officer dressed

in plain clothes who was working undercover to monitor the activists’ actions. Id. Piper followed

Respondent to her home; nothing indicated that Respondent was aware he was following her

from the encampment. Id.

At Respondent’s house, Piper knocked on her door and, in a loud voice, identified

himself as a police officer. Id. Respondent was standing “some distance back from the door” and

Piper held up his badge through a window and ordered her to open the door. Id. When

Respondent asked why Piper was not in uniform and refused Piper’s second request to open her

3

door, Piper kicked open the front door. Id. Piper reiterated he was a police officer as Respondent

picked up her video camera and ran. Id. Piper found her in a bedroom, where she screamed for

him to leave, and he “ordered her to turn around and put her hands on her head.” Id.

Rather than comply with his request, Respondent reached for a backpack on the ground.

Id. Piper used his baton to strike Respondent on her leg. Id. This caused Respondent to drop the

video camera, which Piper then seized. Id. He then told her “to stay down and not to move.” Id.

Respondent again did not comply and started to struggle with Piper. Id. Piper struck her on the

head with his baton, which knocked her unconscious. Id.

The police copied Respondent’s video recorder hard drive and deleted the recording of

the police action in the encampment. R at 4. Respondent “was charged with violating Craven

General Statute § 15A-287,” but the charge was later dropped. Id. Respondent then brought suit

against Piper under 42 U.S.C. § 1983, claiming that Piper’s warrantless entry and use of force

violated her constitutional rights under the Fourth Amendment. Id. Respondent also claimed that

Craven General Statute § 15A-287 violated her rights under the First Amendment. Id. The

District Court granted partial summary judgment in favor of Respondent in regard to Piper’s

warrantless entry. Id. But the District Court granted summary judgment in favor of Piper and

dismissed Respondent’s excessive force and First Amendment claims. R. at 5.

On appeal, the Thirteenth Circuit reversed the District Court’s ruling regarding

Respondent’s excessive force and First Amendment claims. R. at 12. The Thirteenth Circuit

concluded that “Piper’s use of force was excessive under the totality of circumstances and thus”

unreasonable under the Fourth Amendment. Id. Regarding Craven General Statute § 15A-287,

the Thirteenth Circuit concluded that there is a “First Amendment right to record police in

public” and the statute is overbroad. Id.

4

Summary of the Argument

In a claim of excessive force, courts should only consider the facts and circumstances at

the moment of the use of force. In Graham, the Court stated that claims of excessive force fall

under the reasonableness standard of the Fourth Amendment. The Court further stated that the

reasonableness standard equates to a reasonable officer at scene and court should consider the

totality of the facts and circumstances. The Circuit Courts are split on the meaning of the totality

of the circumstances.

Police officers are involved in tense, rapidly-evolving situations where they are forced to

make split-second judgments. When an officer makes an arrest, the situation can quickly change

from a misdemeanor arrest to a situation requiring the officer to act in self-defense. The situation

can also change based on new knowledge gained by the officer during the confrontation with a

suspect. Officers enter into a situation with knowledge that they may have to use force, but with

new knowledge the risk can heighten. Therefore, considering the moment of the use of force

better comports with the need for officers to make split-second judgments.

The view that all the facts prior to the use of force should also be considered is under

supported. The Sixth circuit actually breaks up the officer’s actions into segments and only

considers the segments involving force for claims of excessive force. The Tenth Circuit case

used by the lower court involves the use of force on an individual not suspected of a crime. The

Ninth Circuit only considers facts prior to the use of force when it involves actions by the police

that are reckless or intentional, unconstitutional, and the proximate cause of the need for force.

Therefore, the approach that only considers the moment of the use of force better comports with

the Court’s decision in Graham.

5

Furthermore, Craven Gen. Stat. § 15A-287 is constitutionally valid because recording

conversations is not protected under the First Amendment. First, recording the police is not

expressive conduct. Second, even if recording police is expressive conduct, Craven Gen. Stat.

§ 15A-287 is a constitutionally valid content-neutral law. Third, recording people should be

considered gathering and receiving information, which is not an unlimited protection under the

First Amendment.

In order for conduct to be expressive, there must be an intent to convey a message and

that message must be understood by the viewers. When a person is secretly recording someone

there is no intent to convey a message the person is deliberately trying to avoid observation by

others. Also, since often no one can see the person recording, it is unlikely that any viewer would

understand the message conveyed. Even if the act of recording is expressive conduct is protected

by the First Amendment, the Craven statute is still a valid content-neutral law. The government

of Craven has the authority to protect the privacy of their citizens. The act of recording without a

person’s consent chills free speech. The statute also leaves ample alternatives for people to

convey the message they intend to convey by recording the police.

The action of recording the police should fall under the right to gather and receive

information, which does not afford citizens unlimited protection. Recording the police may be a

preferred method to gather information, but there is no constitutional right to the preferred

method to gather information. Even if public events are involved, the press and people seeking to

gather information do not receive greater protection, especially if the law general applies to the

public. Therefore, Craven Gen. Stat. § 15A-287 is constitutionally valid.

6

Argument

I. CONSIDERING THE FACTS AND CIRCUMSTANCES AT THE MOMENT OF

THE USE OF FORCE IS MORE REPRESENTATIVE OF THE COURT’S

DECISION IN GRAHAM AND BETTER FITS THE EXCESSIVE FORCE

REASONABLENESS INQUIRY

When considering excessive force claims, a court should only consider the facts and

circumstances at the moment of an officer’s use of force. Claims of excessive force fall under the

Fourth Amendment of the United States Constitution, and therefore, courts utilize a

reasonableness standard in evaluating an officer’s actions. Graham v. Connor, 490 U.S. 386, 394

(1989). Deciding whether the use of force was reasonable “requires a careful 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 Tennessee v. Garner, 471

U.S. 1, 8 (1985)). The standard is fact sensitive and requires a look at the totality of the

circumstances, “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.” Id. (citing Garner, 471 U.S. at 8-9).

The issue is the Circuit Courts are split on the meaning of the “totality of the

circumstances.” Garner, 471 U.S. at 8-9. The Second, Fourth, Fifth, and Eighth Circuits

“consider only the facts and circumstances at the very moment of the use of force.” R. at 7. The

First, Third, Sixth, Seventh, Ninth, and Tenth Circuits “consider any relevant facts and

circumstances leading up to the moment of the use of force.” The Court should side with the

Second, Fourth, Fifth, and Eighth Circuits and find that the standard requires considering only

the facts and circumstances at the moment of an officer’s use of force.

A. Officers are frequently involved in rapidly-evolving situations and must make split-

second decisions

7

Officer Piper had to make a split-second decision. The Court requires that the

reasonableness standard equate to a reasonable police officer at the scene. Graham, 490 U.S. at

396 (emphasis added). Additionally, “[t]he calculus of reasonableness must embody allowance

for the fact that police officers are often forced to make split-second judgments -- in

circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is

necessary in a particular situation.” Id. at 396-97. Officer Piper was forced to make such a split-

second judgment in order to defend himself. R. at 3. Because Respondent refused to listen to

Officer Piper’s multiple orders and began reaching for a backpack, which could have contained a

weapon, the situation evolved and the risk of harm heightened. Id.. Faced with a subject not

following clear orders who was reaching for a backpack, which might have contained a weapon,

a reasonable officer on the scene would have found it necessary to use force.

The reasonableness standard should be limited to an officer’s knowledge of the

circumstances immediately prior to making a split-second decision. In Salim v. Proulx, an officer

wearing plain clothes searched for and located a child who ran away from juvenile detention.

Salim v. Proulx, 93 F.3d 86, 88 (2nd Cir. 1996). The child ran away from Officer Proulx and

Proulx followed. Id. Once Proulx had the child pinned to the ground, a group of children arrived

and began kicking and hitting Proulx. Id. Proulx pulled out his gun, pointed it at the children, and

after a struggle over the gun, he shot and killed the child he had pinned down. Id. The Second

Circuit disagreed with the plaintiff’s assertion that Officer Proulx created the need for force and

thus use of such force was unreasonable. The plaintiff believed that the use of force was

unreasonable since Officer Proulx failed to follow procedure by not carrying his radio or calling

for back-up, thereby creating the need for force himself. Id. at 92. The Court found that “[t]he

reasonableness inquiry depends only upon the officer’s knowledge of circumstances immediately

8

prior to and at the moment that he made the split-second decision to employ deadly force.” Id.

Considering only an officer’s knowledge immediately prior to using force best accounts for the

reality of split-second decisions that officers must make.

Similar to the officer in Salim, when Officer Piper attempted to arrest Respondent, she

began to reach her backpack and refused to listen to his orders. R. at 3. Officer Piper’s

knowledge immediately prior to using force was that Respondent was reaching for a backpack,

maybe to get a weapon, and that he had to defend himself. Also like Salim, Officer Piper did not

radio for assistance or properly enter Respondent’s residence. The reasonableness inquiry,

however, only concerns the moment directly prior to the use of force. Salim, 93 F.3d at 92. It

could be argued that officers enter any situation with the knowledge that they may have to use

force and police procedures are there to protect them. This may be true, but as the Court stated in

Graham, officers are often involved in “circumstances that are tense, uncertain, and rapidly

evolving.” Graham, 490 U.S. at 397. In the case at hand, Officer Piper could not know for

certain whether Respondent had a weapon within her reach. While the risk of a weapon is always

present in an officer’s duty, that risk heightened once Officer Piper saw that Respondent reached

for her backpack. R. at 3. Considering Officer Piper’s knowledge the moments immediately prior

to using force, his use of such force was reasonable.

Courts have also recognized that at the moment when officers must defend themselves,

concern for the original arrest dissipates. In Fraire v. Arlington, an officer witnessed a person

recklessly driving a truck with open containers of alcohol located in the truck. Fraire v.

Arlington, 957 F.2d 1268, 1270 (5th Cir. 1992). After the truck pulled over, the officer identified

himself as an officer and ordered the driver to place the truck in park. Id. However, the driver

immediately sped off and the officer followed the driver. Id. at 1270-71. After the driver reached

9

a dead-end, he began to speed towards the officer, who had left his car. Id. at 1271. The officer

fired his weapon, striking the driver. Id. at 1271-72. The plaintiff argued that using deadly force

in a misdemeanor arrest automatically equates to excessive force. Id. at 1274. The Fifth Circuit

disagreed, stating that “the question [is] not whether [the officer’s] actions were grossly

disproportionate to the need for action in arresting [the driver] for a misdemeanor offense, but

whether his actions were grossly disproportionate to the need to defend himself from attack.” Id.

at 1276. The nature of a citizen’s offense is irrelevant to the reasonableness inquiry into the use

of force once an officer determines he is at risk of harm.

Similar to the facts in Fraire, Officer Piper’s concern over the apprehension of

Respondent’s video camera faded away once the situation gave rise to the need for him to defend

himself. Officer Piper’s “act was one of virtual instinctive self-preservation in no way related to

his original concerns with the [violation of Craven Gen. Stat. § 15A-287], a concern by then long

since evaporated.” Fraire, 957 F.2d at 1275. Officer Piper may not have intended to use force on

the respondent for violating Craven Gen. Stat. § 15A-287 when entering her house, but that is

not at issue. R. at 3. Rather, the inquiry is only concerned with the need for a police officer to

make a split-second decision to defend himself. When Respondent began looking around her

room, reaching for a backpack, and refused to comply with orders, Officer Piper’s concern over

Craven Gen. Stat. § 15A-287 evaporated and his “virtual instinctive self-preservation” kicked in.

R. at 3; Fraire, 957 F.2d at 1275. This complies with Graham’s vision of “a reasonable officer

on the scene . . . often forced to make split-second judgments.” Graham, 490 U.S. at 396-97.

It could be argued that the Court requires a look at the “totality of the circumstances” and

that the word totality encompasses more than just the moment force is used. Garner, 471 U.S. at

8-9; See Young v. City of Providence, 404 F.3d 4, 22 (1st Cir. 2005). Yet this view does not

10

match the Court’s opinion in Graham. The Court’s use of the phrases “the standard of

reasonableness at the moment applies” and “split-second judgments” is evidence that the moment

directly prior to the use of force should be considered. Graham, 490 U.S. at 396-397 (emphasis

added); see Schulz v. Long, 44 F.3d 643, 648 (8th Cir. 1995); see also Greenidge v. Ruffin, 927

F.2d 789, 792 (4th Cir. 1991). Furthermore, excessive force claims look at unreasonable

seizures, “not unreasonable or ill-advised conduct in general. Consequently, [courts] scrutinize

only the seizure itself, not the events leading to the seizure.” Schulz, 44 F.3d at 648. Scrutinizing

all the circumstance and every fact would require “20/20 hindsight,” which is inappropriate

under the excessive force reasonableness inquiry. Graham, 490 U.S. at 396; see Schulz, 44 F.3d

at 649.

B. The lower court misinterpreted Whitlow v. City of Louisville, Billington v. Smith, and

Hastings v. Barnes

The lower court incorrectly stated that several courts would have considered Officer

Piper’s unconstitutional entry into Respondent’s residence, looking beyond the moment Officer

Piper feared for his safety at the hands of Respondent. The lower court erred in not examining

further the Sixth and Ninth Circuit cases it cited to support that assertion, which actually

demonstrate that neither circuit would have considered Officer Piper’s prior actions.

Additionally, the case at hand is distinguishable from Hastings v. Barnes, a Tenth Circuit case

cited for support in the lower court’s decision. R at 8. Therefore, the Thirteenth Circuit’s view

that any “relevant facts and circumstances leading up to the moment of the use of force” is under

supported at best. R. at 7.

The Sixth Circuit only considers the facts that take place seconds before the use of force,

which connect the officer’s actions to the use of force. In Whitlow v. City of Louisville, Sergeant

Cooper investigated a domestic violence case where Whitlow allegedly physically abused his

11

girlfriend. Whitlow v. City of Louisville, 39 Fed. App’x. 297, 298 (6th Cir. 2002). The girlfriend

told Cooper that Whitlow owned a large number of weapons, carried guns on his person at all

times, and would be willing to defend himself. Id. at 299. After hearing about Whitlow’s stock of

weapons, Sergeant Cooper obtained an arrest warrant and sought assistance from the city’s

SWAT team in serving Whitlow. Id. The SWAT team used a ram to gain entrance to Whitlow’s

residence. Id. at 300. One officer saw that Whitlow had a gun and yelled for Whitlow to drop the

gun. Id. Instead, Whitlow raised his gun and the officer shot and killed him. Id. The plaintiff

alleged that Sergeant Cooper’s investigation was inadequate and argued that the SWAT team

created the need for force. Id. at 305-06. The Sixth Circuit found that too much time had passed

between Sergeant Cooper seeking assistance from the SWAT team and Whitlow’s death for it to

be relevant to the court’s inquiry. Id. at 305. The court found that the inquiry must focus only on

the moments directly preceding the shooting, which showed that the officer was acting in self-

defense. Id. at 307. Similar to Sergeant Cooper, Officer Piper was acting in self-defense at the

moment he used non-lethal force.

The Sixth Circuit properly did not adopt the approach of considering all facts leading up

to the use of force. The Whitlow plaintiff argued that the Sixth Circuit should adopt the broad

rule used in the Tenth Circuit, which considered “whether Defendants’ own reckless or

deliberate conduct during the seizure unreasonably created the need to use such force.” Whitlow,

39 Fed. App’x. at 305 (quoting Allen v. Muskogee, 119 F.3d 837, 840 (10th Cir. 1997)). But the

Sixth Circuit held that the Tenth Circuit’s broad rule was incompatible with Sixth Circuit

precedent. Id. at 305-06. The Sixth Circuit pointed to its decision in Claybrook v. Birchwell,

where the events of a police shooting had to be “carved up” and “determined that the events were

properly construed as occurring in three segments.” Id. at 305 (citing Claybrook v. Birchwell,

12

274 F.3d 1098, 1105 (6th Cir. 2001)). The first segment in Claybrook occurred when the officer

inappropriately approached and confronted a suspect; the second and third segments were two

different shootouts between the officers and the suspect. Claybrook, 274 F.3d at 1105. The last

two segments were relevant to the court’s inquiry because they dealt with the force used by the

officers, but the first segment could not be considered, even if the officers did not follow police

policy. Id. Following Sixth Circuit precedent, the Thirteenth Circuit should not have considered

the circumstances surrounding Officer Piper’s entry into Respondent’s home.

Based on its own interpretation of its precedent, the Sixth Circuit would only consider the

facts directly before Officer Piper’s use of force. The case at hand could be broken up into three

or more segments: Officer Piper’s warrantless entry into Respondent’s residence, Officer Piper’s

search for the camera, and the moment at which Officer Piper determined the need to use force.

R. at 3. Just as in Claybrook, this Court should only consider the final segment involving the use

of force in evaluating Respondent’s claim of excessive force. The segment involving Officer

Piper’s use of force is similar to Whitlow. Like the officer in Whitlow who reacted in self-defense

when a gun was raised in his direction, Officer Piper saw the Respondent searching her room and

reaching for her bookbag and reacted by using his baton. Id. Respondent refused to comply with

Officer Piper’s order to place her hands on her head and Officer Piper did not know if she had

weapons in her room or backpack, so he made a split-second decision to defend himself. Id.

Officer Piper did not use force on an individual who was not breaking the law or not

suspected of breaking the law. The use of force on such an individual weighs heavily against

officers. In Hastings v. Barnes, officers responded to a call that Hastings “was planning to

commit suicide.” Hastings v. Barnes, 252 Fed. App’x. 197, 198-99 (10th Cir. 2007). When the

officers arrived at Hastings’ residence, Hastings would not immediately step out to speak to the

13

officers. Id. at 199. Since Hastings would not step out, the officers entered the residence and in

response Hastings grabbed a samurai sword. Id. Initially the officers unsuccessfully used pepper

spray as an attempt to force Hastings to drop the sword. Id. at 200. When Hastings started

moving with the sword towards the officers, they shot and killed him. Id. The plaintiff argued

that the officer’s use of force was improper since it escalated the situation and they were only

there to de-escalate the situation, not to make an arrest. Id. at 201. The Tenth Circuit agreed by

stating that they cannot merely look at the moment for the need of force and that “[the officer’s]

actions unreasonably escalated the situation to the point deadly force was required. Id. at 203.

Hastings is distinguishable to the case at hand. In Hastings, the Tenth Circuit placed great

weight on the fact that Hastings was not a criminal suspect, was emotionally disturbed, and that

the officers were at his residence to prevent him from committing suicide. Hastings, 252 Fed.

App’x. at 203. These facts are in stark contrast to the case currently before the Court. Officer

Piper witnessed the Respondent violating Craven Gen. Stat. § 15A-287 and pursued her in order

to make an arrest. R. at 3. Furthermore, even if the Tenth Circuit in Hastings only looked at the

moment the officers used force, two of the Graham balancing factors still weighed heavily

against the officers. Though Hastings may have “pose[d] an immediate threat to the safety of the

officers,” there was no severe crime taking place and he was not evading arrest since he was not

a criminal suspect. Graham, 490 U.S. at 395; See Hastings, 252 Fed. App’x. at 202-03. While

the severity of the Respondent’s crime may be controversial, she was resisting arrest and posed

an immediate threat to Officer Piper when reaching for her backpack. R. at 3.

It could be argued that any unconstitutional action made by a police officer should be

taken into account when considering whether an officer’s use of force was excessive. The lower

court pointed to Alexander v. City & County of San Francisco for support for this consideration.

14

R. at 9; Alexander v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994). However,

even if an officer’s unconstitutional actions created the need for force, that alone does not

automatically equate to a valid claim of excessive force. The Ninth Circuit limited the scope of

Alexander by stating that the prior actions by the officer must be intentional or reckless,

unconstitutional, and the proximate cause for the need for force. Billington v. Smith, 292 F.3d

1177, 1189-91 (9th Cir. 2002). The Ninth Circuit utilizes this narrow scope in recognition of the

fact that officers are forced to make split-second decisions and should not be held liable for every

mistake or alternative left unexplored. Id. at 1191. Thus even if this Court follows the Ninth

Circuit’s approach, the narrow scope of that approach is a high hurdle for plaintiffs. Unless the

officer commits a reckless, unconstitutional act beforehand, the focus is still on the moment that

force is used.

The lower court’s decision to review all circumstances leading up to Officer Piper’s use

of force is under supported. The Sixth Circuit only considers the circumstances and facts

immediately prior to and at the moment of the use of force. Furthermore, a closer reading of the

Tenth and Sixth Circuit cases cited by the lower court illustrate that only extreme instances

require a review of actions by the police officer prior to the use of force. Therefore, the lower

court erred in its decision. This Court should adopt the Second, Fourth, Fifth, and Eighth

Circuits’ approach of only considering “the facts and circumstances at the very moment of the

use of force” should be adopted. R. at 7.

II. RECORDING CONVERSATIONS IN PUBLIC IS NOT EXPRESSIVE

CONDUCT AND GENERALLY APPLICABLE LAWS THAT PROHIBIT

RECORDING WITHOUT ALL PARTIES’ CONSENT DO NOT VIOLATE THE

FIRST AMENDMENT

Anti-recording statutes are content-neutral and do not violate the First Amendment. A

content-neutral regulation of speech is permissible, even though when it burdens protected

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speech, if the regulation is “justified without reference to the content of the regulated speech, . . .

[is] narrowly tailored to serve a significant governmental interest, . . . and, . . . leave[s] open

ample alternative channels for communication of the information.” Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989) (citation omitted). Anti-recording laws, such as Craven § 15A-

287, make no reference to the content of conversations that may not be recorded. The laws serve

to advance the government’s substantial interest in protecting the conversational privacy of its

citizens as well as leave open ample alternative channels for citizens to communicate on

governmental activities. Anti-recording regulations do not violate the First Amendment.

A. Recording the police is neither speech nor expressive conduct

Holding a camera to record is conduct devoid of communicative elements. In determining

whether particular conduct possesses communicative elements, sufficient to implicate the First

Amendment, the Court looks to whether “‘[a]n intent to convey a particularized message was

present, and [whether] the likelihood was great that the message would be understood by those

who viewed it.’” Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting United States v. O’Brien,

391 U.S. 367, 410-11 (1968)) (alternations in original). Recording the police does not possess

sufficient communicative elements such that it warrants First Amendment protection. The Court

has recognized expressive conduct when a citizen burns an American flag outside of a political

convention, Johnson, 491 U.S. at 405, or wears a black arm band as part of a day of protest

against the Vietnam War, Tinker v. Des Moines Independent Community School Dist., 393 U.S.

503, 505 (1969).

Without more, holding up a camera to record police activity is devoid of any expressive

elements such that it requires First Amendment protection. Any argument that recording an

officer is conduct used to express dissatisfaction with the officer’s conduct falls short in light of

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the fact that Respondent hid behind bushes to record police activity. R at 3. Recording from a

hidden position evinces both Respondent’s lack of intent to convey a particularized message and

eliminates any chance that her action would be observed by others, let alone interpreted as

conduct meant to convey a message. Even were someone to record conversations in public, the

action of holding up a video recorder or a smart phone to take photos is a commonplace

occurrence, not associated with the same communicative elements as burning a flag or wearing a

black armband, both of which immediately demonstrate the speaker’s opinion on a certain topic.

Recording the police in secret lacks communicative elements and thus does not require First

Amendment protection.

In Kelly v. Borough of Carlisle, the Third Circuit recognized the lack of communicative

elements in recording and as a result held it does not requires First Amendment protection. The

court relied on precedent which found that “videotaping without an expressive purpose may not

be protected . . .” First Amendment activity. Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d

Cir. 2010). In Kelly, the plaintiff videotaped an officer during a traffic stop. Similar to

Respondent’s recording of the Craven police from behind bushes, the plaintiff kept the video

camera in his lap, allegedly without the officer’s knowledge or consent. Id. at 251. While

acknowledging that citizens may offer evidence that recording is linked to speech about public

affairs, the Third Circuit noted a district court case that found “that the act of photographing, in

the abstract, is not sufficiently expressive or communicative and therefore not within the scope

of First Amendment protection – even when the subject of the photography is a public servant.”

Id. at 261 (citing Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504, 513 n.14 (D.N.J.

2006)) (emphasis added). A citizen’s act of recording a police officer does not warrant First

Amendment protection simply because the police officer is a public servant. Though police

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officers are public servants, recording their activities – without expressive or communicative

elements – does not fall within the scope of First Amendment protection.

The ACLU of Ill. v. Alvarez court incorrectly interpreted campaign-finance precedent to

support its finding of a First Amendment right to record police activities. The Seventh Circuit

analyzed the line of campaign-finance cases to conclude that prohibiting recordings of police is

directly analogous to limiting money spent by certain people on political speech. ACLU of Ill. v.

Alvarez, 679 F.3d 583, 596 (7th Cir. 2012) (noting that the Buckley v. Valeo Court held that

restricting money spent on political speech “necessarily reduces the quantity of expression by

restricting the number of issues discussed, the depth of their exploration, and the size of the

audience reached.”) (quoting Buckley v. Valeo, 424 U.S. 1, 19 (1976)). The Seventh Circuit’s

analysis recognized that, in the context of political speech, the Court has consistently held that

spending money is critical to enabling and facilitating speech on candidates, campaigns, and

issues. But the Seventh Circuit then makes the logical leap that limiting recording of police thus

“necessarily limits the information that might later be published or broadcast . . . .” Alvarez, 679

F.3d at 596. A limit on videotaping police activities does not limit information that might later be

published; it merely limits a medium available at publication. The Seventh Circuit analysis

ignores the fact that, in the context of political speech, the Court recognizes the integral part

money plays in facilitating speech. Videotaping police does not play the same integral role in

discussions of police activity, indeed there are ample alternatives, including actual speech,

available when it comes to facilitating those discussions. The Seventh’s Circuit analysis of

political speech cases does not translate to requiring recording of police activities to enable

speech on such activities.

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Restricting citizens’ ability to record the police still allows for ample speech

opportunities. The Seventh Circuit noted that the Court in First Nat’l Bank of Bos. V. Bellotti,

held that “the freedom of speech and press ‘embraces at least the liberty to discuss publicly and

truthfully all matters of public concern without previous restraint or fear of subsequent

punishment.’” Alvarez, 679 F.3d at 596 (quoting First Nat’l Bank of Bos. V. Bellotti, 435 U.S.

765, 767 (1977)). Laws proscribing recording without all parties’ consent do not implicate those

liberty concerns. Without the ability to record conversations without consent, citizens do not lose

the ability to publicly discuss matters concerning the police without fear of prior restraint or

subsequent punishment.

Unlike Bellotti, anti-recording statutes are not a complete ban on a certain topic. The

restriction on speech in Bellotti was a complete ban on “certain expenditures by banks and

business corporations for the purpose of influencing the vote on referendum proposals . . . .”

Bellotti, 435 U.S. at 767. In stark contrast, Craven Gen. Stat. § 15A-287 merely proscribes

recording without consent and is not a complete ban on a certain topic or form of

communication. Citizens in Craven may still record the police as long as they have the officer’s

consent and, importantly, they may still dispute police actions. Therefore, the restrictions at issue

cannot be construed as complete bans on speech on matters concerning the police.

The lack of limits on the right in circuits that have recognized a First Amendment right to

videotape police conduct, should render this Court skeptical of the so called perceived right. As

the Third Circuit noted in its discussion of Smith v. City of Cumming, while the Eleventh Circuit

has recognized a First Amendment right to videotape police conduct, the circuit’s opinion

“provided few details regarding the facts of the case, making it difficult to determine the context

of the First Amendment right it recognized.” Kelly, 622 F.3d at 260 (discussing Smith v. City of

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Cumming, 212 F.3d 1332 (11th Cir. 2000), cert. denied, 531 U.S. 978, 121 S. Ct. 426, 148 L. Ed.

2d 435 (2000)); see also True Blue Auctions v. Foster, 528 F. App’x 190, 193 (3d Cir. 2013) (no

clearly established right to record police on a public sidewalk) Szymecki v. Houck, 353 F. App’x

852, 853 (4th Cir. 2009) (same). The act of holding up a recording device lacks the

communicative elements necessary to bring the act under the protection of the First Amendment.

B. Even if recording the police is expressive conduct, content-neutral laws proscribing

such expression survive intermediate scrutiny

Even if recording the police is expressive conduct, a content-neutral proscription of such

recording survives intermediate scrutiny. When faced with a First Amendment challenge to a

content-neutral law, the Court applies an intermediate scrutiny:

[A] government regulation is sufficiently justified [1] if it is within the

constitutional power of the Government; [2] if it furthers an important or

substantial governmental interest; [3] if the governmental interest is

unrelated to the suppression of free expression; and [4] if the incidental

restriction on alleged First Amendment freedoms is no greater than is

essential to the furtherance of that interest.

O’Brien, 391 U.S. at 377. The final prong of the analysis is satisfied “so long as the . . . .

regulation promotes a substantial government interest that would be achieved less effectively

absent the regulation.” Ward, 491 U.S. at 799 (internal quotations and citations omitted). Anti-

recording statutes, such as Craven Gen. Stat. § 15A-287 survive this intermediate scrutiny.

Conversational privacy is a substantial governmental interest, recognized by this Court

and advanced by anti-recording statutes such as Craven Gen. Stat. § 15A-287. Bartnicki v.

Vopper, 532 U.S. 514, 532 (2001) (“Privacy of communication is an important interest”)

(internal citations omitted). Moreover, conversational privacy supports core First Amendment

purposes. Id. at 533 (“[T]he fear of public disclosure of private conversations might well have a

chilling effect on private speech.”). With the ubiquity of phones with recording capabilities and

20

without Craven’s anti-recording statute, people would be fearful that their private conversations

might end up posted on the internet. In a world suffering from cyberbullying and hyper political

correctness, otherwise constitutional speech would be chilled for fear of repercussion in the form

of a viral video of a private conversation. The same can be said with secret recording of police

officers who must make split-second decisions, but for fear that they are being recorded, may

take precious time to rethink those decisions.

Anti-recording laws directly advance the goal of conversational privacy and do not

burden more speech than is necessary. A law “may not regulate expression in such a manner that

a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491

U.S. at 799. A prohibition on recording conversations without all parties’ consent serves to

assure citizens that they may speak freely without fear of a third party recording conversations

without consent. This assurance extends to citizens interacting with police officers in public,

citizens who “may be very averse to the conversation[] being broadcast on the evening news or

blogged throughout the world.” Alvarez, 679 F.3d at 611 (Posner, J., dissenting). Suppressing a

citizen’s expressive conduct is not the purpose of anti-recording statutes. Moreover, any burden

on such expressive conduct is needed to advance the substantial goal of conversational privacy.

Content-neutral anti-recording laws do not impermissibly limit the free discussion of

governmental affairs. While “there is practically universal agreement that a major purpose of [the

First] Amendment was to protect the free discussion of governmental affairs,” that purpose is not

diminished by laws prohibiting recording conversations without all parties’ consent. Mills v.

Alabama, 384 U.S. 214, 218 (1966) (emphasis added). Craven Gen. Stat. § 15A-287 does not

proscribe citizens from observing police activities, discussing those observations, or

disseminating information on police activities to a larger audience. Indeed, Respondent was “free

21

to seek news from any source by means within the law.” Branzburg v. Hayes, 408 U.S. 665, 681-

82 (1972). That Respondent could not utilize one medium of gathering news – namely recording

police activity from her position behind a bush – does not diminish the free discussion of

governmental affairs.

The Thirteenth Circuit erred in finding Craven Gen. Stat. § 15A-287 overbroad. R at 12.

“[P]articularly where conduct and not merely speech is involved, [the Court] believe[s] that the

overbreadth of a statute must not only be real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.” Broadrick v. Okla., 413 U.S. 601, 615 (1973) Moreover, any

application of the doctrine “has been employed by the Court sparingly and only as a last resort.”

Id. at 613 (emphasis added). The statute limits only recording without all parties’ consent and

thus leaves open ample alternative channels of gathering and communicating information. This

Court should not employ the overbreadth doctrine simply because a law prohibiting citizens from

recording conversations without all parties’ consents also prohibits citizens from recording

police officers without consent. Such proscription is necessary to protecting privacy interests of

all citizens.

C. The First Amendment does not guarantee an unlimited right to gather and receive

information

Recording the police is more aptly analyzed under a First Amendment right to receive

information. In Kelly v. Borough of Carlisle Kelly, the Third Circuit noted that the facts of that

case – where a township refused to allow the plaintiff to video record planning commission

meetings – lent themselves to a “‘right to receive and record information,’ not ‘speech or

otherwise expressive activity.’” 622 F.3d at 262 (quoting Whiteland Woods, L.P. v. Township of

West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999)). This Court should find that a right to record

should be analyzed as a right to access information, not a right to expressive conduct. The right

22

to access information is far from absolute and a prohibition on recording public events does not

offend the First Amendment.

Any incidental burden that Craven’s statute places on Respondent’s ability to gather news

does not automatically invalidate the statute. Respondent asserts that the prohibition of recording

conversations without consent violates her First Amendment right to gather news and receive

information. R at 2. But “[t]he right to speak and publish does not carry with it the unrestrained

right to gather information.” Zemel v. Rusk, 381 U.S. 1, 17 (1965). Neither the press nor

individuals with journalistic characteristics1 may claim exemption to laws of general

applicability, even when the laws result in an incidental burden on news gathering. See, e.g.,

Branzburg, 408 U.S. at 682 (“It is clear that the First Amendment does not invalidate every

incidental burdening of the press that may result from the enforcement of civil or criminal

statutes of general applicability.”); Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (The

Court noted the “well-established line of decisions holding that generally applicable laws do not

offend the First Amendment simply because their enforcement against the press has incidental

effects on its ability to gather and report the news.”); Food Lion v. Capital Cities/ABC, 984 F.

Supp. 923, 929 (M.D.N.C. 1997) (“[T]he press is not free to violate laws of general applicability

in order to reach its ultimate goals”). Craven’s statute is one of general applicability, without

reference to content or persons who may or may not record. Any incidental burden it may have

on Respondent’s ability to gather and report news does not offend the First Amendment.

1 Petitioner agrees with the Thirteenth Circuit that “changes in technology and society have made the lines

between private citizen and journalist exceedingly difficult to draw.” R at 12. As a result, Petitioner concedes that

precedent concerning journalists’ right to gather information also applies to citizens’ right to gather information.

Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (Stewart, J., concurring) (“The Constitution does no more than

assure the public and the press equal access . . . .”); see also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011)

(Advances in technology “make clear why the news-gathering protections of the First Amendment cannot turn on

professional credentials or status.”).

23

Long-standing precedent also establishes that, when gathering news, neither press nor

individuals are entitled to gather from the best sources of information. In Zemel v. Rusk, the

Court sustained the Government’s refusal to validate a citizen’s passports to Cuba, despite his

argument that the denial would restrict the “free flow of information concerning that country.”

381 U.S. at 16-17. In rejecting the claim, the Court noted that “the prohibition of unauthorized

entry into the White House [also] diminishes the citizen’s opportunities to gather information . . .

but that does not make entry . . . a First Amendment right.” Id. While news organizations may

lean on broad First Amendment protections when reporting on illegally obtained documents,

news organizations themselves may not engage in unlawful activity to obtain newsworthy

documents. Bartnicki, 532 U.S. 514, 532; N.Y. Times Co. v. United States, 403 U.S. 713 (1971).

Many other methods were available to Respondent’s gathering of news on the events of January

20, 2014, such as recording and interviewing people who consent or writing what she saw that

day. While Respondent’s video recording may be her preferred method of gathering information,

the First Amendment does not grant her a right to her preferred method of gathering news.

There is no First Amendment right to record public events. In United States v. Kerley, the

Seventh Circuit rejected a defendant’s claim that the First Amendment required courts to allow

him to videotape his trial. 753 F.2d 617, 622 (7th Cir. 1985); see also Nixon v. Warner

Communications, Inc., 435 U.S. 589, 610 (1978) (“[T]here is no constitutional right to have

[courtroom] testimony recorded and broadcast.”); Potts v. City of Lafayette, 121 F.3d 1106, 1111

(7th Cir. 1997) (“[T]here is nothing in the Constitution which guarantees the right to record a

public event.”). The Third Circuit has held that the right to record public meetings does “not

necessarily create a federal constitutional right to videotape [those] meetings.” Township of West

Whiteland, 193 F.3d at 184). In making that determination, the Third Circuit noted that, while

24

video tapping was not permitted, citizens’ still had both access to the meetings as well as the

ability to record the meetings by other methods. Id. There is no First Amendment right to record

police activity, especially considering that there is no limit on citizens observing police activities

in public and recording observations by other readily available methods.

The First Circuit erred when determining the First Amendment supports a right to record

police activity. In Glik v. Cunniffe, the court found a First Amendment right to record

“government officials in a form that can readily be disseminated to others serves a cardinal First

Amendment interest” in protecting discussion of governmental affairs. Glik v. Cunniffe, 655 F.3d

78, 82 (1st Cir. 2011) (citations omitted). This determination ignores the many limits on the First

Amendment right to gather information as well as the lack of a First Amendment right to record

a public event.

Furthermore, Respondent has no recognized First Amendment right to invade the rights

of others to gather news. This Court “has emphasized that the ‘publisher of a newspaper . . . has

no special privilege to invade the rights and liberties of others.’” Branzburg v. Hayes, 408 U.S.

665, 683 (1972) (quoting Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937)). Craven’s

statute was enacted to protect the conversational privacy of its citizens. Respondent may not

invade that privacy right in the pursuit of gathering news.

The Thirteenth Circuit’s determination that the First Amendment affords Respondent a

right to record police in public is unsupported by First Amendment precedent. This Court should

25

side with the Third and Fourth Circuits,2 and find that the First Amendment does not provide a

right to record police in public without the consent of all parties involved.

2 As well as district courts within at least five different circuits that have held there is not yet an established

First Amendment right to record police activity in public. See Lawson v. Hilderbrand, 88 F. Supp. 3d 84, 100 (D.

Conn. 2015); Garcia v. Montgomery County, No. TDC-12-3592, 2015 WL 6773715, at *7 (D. Md. Nov. 5, 2015);

Pluma v. City of New York, No. 13CIV.2017(LAP), 2015 WL 1623828, at *7 (S.D.N.Y. Mar. 31, 2015);

Montgomery v. Killingsworth, No. 13CV256, 2015 WL 289934, at *1 (E.D. Pa. Jan. 22, 2015); Williams v. Boggs,

No. 6:13-65-DCR, 2014 WL 585373, at *1 (E.D. Ky. Feb. 13, 2014); Mocek v. City of Albuquerque, 3 F. Supp. 3d

1002, 1074 (D.N.M. 2014), aff'd on other grounds, No. 14-2063, 2015 WL 9298662, at *11-12 (10th Cir. Dec. 22,

2015); Ortiz v. City of New York, No. 11CIV.7919(JMF), 2013 WL 5339156, at *4 (S.D.N.Y. Sept. 24, 2013);.

26

Conclusion

For the above-mentioned reasons, Petitioner respectfully ask that this Court REVERSE

the decision of the United States Court of Appeals for the Thirteenth Circuit and hold that the

when determining the reasonableness of an officer’s use of force, a court should consider only

the facts and circumstances at the moment of an officer’s use of force.

Furthermore, this Court should hold that a generally applicable law, prohibiting the

recording of conversations without all parties’ consent, does not violate the First Amendment.

Dated: January 9, 2017

Respectfully submitted,

/s/ Team D

_____________________

Team D

Counsel for the Petitioner