supreme court of the united states harry...
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No. 16-648
______________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2016
______________________________________________________________________________
HARRY PIPER,
Petitioner,
v.
LUNA LOCKWOOD,
Respondent.
ON PETITION OF WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRTEENTH CIRCUIT
BRIEF FOR RESPONDENT
______________________________________________________________________________
Team Letter ‘B’
Counsel for Respondent
________________________________________________________________________
QUESTIONS PRESENTED
1. Whether a court, in determining the reasonableness of a use of force by an officer during
an arrest, should consider only the facts and circumstances at the moment of the use of
force or should instead also consider the relevant facts and circumstances leading up to
the moment of the use of force.
2. Whether individuals, including those with no formal affiliation to the press, have a First
Amendment right to record police officers acting in public.
ii
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED...........................................................................................................ii
TABLE OF AUTHORITIES...................................................................................................iv-viii
JURISDICTIONAL STATEMENT...............................................................................................ix
STATEMENT OF CASE................................................................................................................2
A. Statement of Facts...........................................................................................................2
B. Summary of Proceedings ...............................................................................................5
SUMMARY OF THE ARGUMENT..............................................................................................7
STANDARD OF REVIEW……………………………………………………………………….9
ARGUMENT.................................................................................................................................10
CONCLUSION..............................................................................................................................26
iv
TABLE OF AUTHORITIES
A. Cases
Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999)……………………………………………………….……12
American Civil Liberties Union v. Alvarez,
679 F.3d 583 (7th Cir. 2012)………………………………………..………..…..9, 14, 17
Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. 721 (2011)……………………………………………………………………..18
Associated Press v. NLRB, 301 U.S. 103 (1937)…………………………………………………………………......20
B&G Enters, Ltd. v. United States, 220 F.3d 1318 (11th Cir. 2001)…………………………………………………….……...9
Bartnicki v. Vopper,
532 U.S. 514 (2001)…………………………………………………………………15, 19 Bell v. Wolfish,
441 U.S. 520 (1979)……………………………………………………………………..10 Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002)…………………………………………………….............8 Blackston v. Alabama,
30 F.3d 117 (11th Cir.1994)………………………………………………………..,…...18 Buckley v. Valeo,
424 U.S. 1 (1976)…………………………………………………………………….…..19 Burstyn v. Wilson,
343 U.S. 495 (1952)……………………………………………………………………...17 Citizens United v. FEC,
558 U.S. 310 (2010)…………………………………………………………………..….20 City of Ladue v. Gilleo,
512 U.S. 43 (1994)………………………………..………………………………….16, 24 Cohen v. Cowles Media Co.,
501 U.S. 663 (1991)…………………………………………………………….……..…20
v
TABLE OF AUTHORITIES (cont.)
Deering v. Reich, 183 F.3d 645 (7th Cir. 1999)…………………………………………………………….12
First Nat'l Bank v. Bellotti,
435 U.S. 765 (1978)………………………………………………………………9, 15, 16
Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir.1995)………………………………………………………………18
Garcetti v. Ceballos, 547 U.S. 410 (2006)……………………………………………………………………...19
Glik v. Cunniffe,
655 F.3d 78 (1st Cir. 2011)…………………………………………………….…9, 14, 17 Graham v. Connor,
490 U.S. 386 (1989)…………………………………………………………………...7, 10 Griswold v. Connecticut,
381 U.S. 479 (1965)……………………………………………………………………...16 GTE Sylvania, Inc. v. Consumers Union of United States, Inc.,
445 U.S. 375 (1980)……………………………………………………………………..16
Hague v. Committee for Industry Organization, 307 U.S. 496 (1939)……………………………………………………………………...23
Hastings v. Barnes, 252 F. App'x 197 (10th Cir. 2007)…………………………………………………….....13
Houchins v. KQED, Inc.,
438 U.S. 1 (1978)…………………………………………………………………….......21 Katz v. United States,
389 U.S. 347 (1967)……………………………………………………………………...15 Kelly v. Borough of Carlisle,
622 F.3d 248 (3rd Cir. 2010)…………………………………………………………….18 Marbury v. Madison,
5 U.S. 137 (1803)………………………………………………………………………...16
vi
TABLE OF AUTHORITIES (cont.)
McCullen v. Coakley, 134 S. Ct. 2518 (2014)……………………………………………………….…………..23
Mills v. Alabama,
384 U.S. 214 (1966)………………………………………………………….………….15 Mocek v. City of Alburquerue,
813 F.3d 912 (10th Cir. 2015)…………………………………………………………...18 New York Times Co. v. United States,
403 U.S. 713 (1971)……………………………………………………………………...24 Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978)……………………………………………………………………...16 Pall Corp. v. Micron Separations Inc.,
66 F.3d 1211 (Fed. Cir. 1995)……………………………………………………………..9 Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015)…………………………………………………………………...23 Reno v. American Civil Liberties Union,
521 U.S. 844 (1997)……………………………………………………………………...17 S.H.A.R.K. v. Metro Parks Serving Summit County,
499 F.3d 553 (6th Cir. 2007)…………………………………………………………………18
Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)…………………………………………………...9, 14, 17
Tennessee v. Garner,
471 U.S. 1 (1985)………………………………………………………...........................10 Terry v. Ohio,
392 U.S. 1 (1968)……………………………………..………………………………….10 Time, Inc. v. Hill,
385 U.S. 374 (1967)……………………………………………………………………...22 Turner Broadcasting Sys., Inc. v. FCC,
520 U.S. 180 (1997)……………………………………………………………………..23 United States v. Stevens,
599 U.S. 460 (2010)………………………………………………………………….......15
vii
TABLE OF AUTHORITIES (cont.) Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council,
425 U.S. 748 (1976)... ……………………………………………………………..…………...20 Young v. City of Providence ex rel. Napolitano,
404 F.3d 4 (1st Cir. 2005)…………………………………………………………………...11
B. Statutes
18 U.S.C. § 2510(2) (2010)…………………………………………………………………………..……25
Ala. Code § 13A-11-30(1) (2010)…………………………………………………………………..……..25
Ariz. Rev.Stat. Ann. § 13-3001(8) (2010)….……………………………………………………………..25
Cal. Penal Code § 632(a) & (c) (Deering 2010) ………………………………………………………….25
Colo. Rev. Stat. § 18-9-301(8) (2010) ……………………………………………………………………25
Del. Code Ann. § 2401(13) (2010) ……………………………………………………………..………...25
Fla. Stat. § 934.02(2) (2010) ……………………………………………………………..……………….25
Ga. Code Ann. § 16-11-62(1) (2010) ……………………………………………………………..………25
Haw. Rev. Stat. § 803-41 (2010) ……………………………………………………………..…………..25
Idaho Code Ann. § 18-6701(2) (2010) ……………………………………………………………..……..25
Iowa Code § 808B.1(8) (2010) ……………………………………………………………..…………….25
Kan. Stat. Ann. § 22-2514(2) (2010) ……………………………………………………………..………25
Ky. Rev. Stat. Ann. § 526.010, (LexisNexis 2010) ………………………………………………………25
La. Rev. Stat. Ann. § 15:1302(14) (2010) ……………………………………………………………..…25
Me. Rev. Stat. tit. 15, § 709(4)(B) & 709(5) (2010)..……………………………………………………..25
Md. Code. Ann., Cts. & Jud. Proc. §10-401(2)(i) (2010) ………………………………………………...25
Mich. Comp. Laws § 750.539a (2010) ……………………………………………………………..…….25
Minn. Stat. § 626A.01(4) (2010)……………………………………………………………..……………25
viii
TABLE OF AUTHORITIES (cont.)
Miss. Code Ann. § 41-29-501(j) (2010)……………………………………………………………..……25
Mo. Rev. Stat. § 542.400(8) (2010)……………………………………………………………..………...25
Neb. Rev. Stat. § 86-283 (2010)……………………………………………………………..…………....25
Nev. Rev. Stat. § 179.440 (2010)……………………………………………………………..……….….25
N.H. Rev. Stat. Ann. 570-A:1 (2010) ……………………………………………………………..……...25
N.J. Stat. Ann. § 2A:156A-2(b) (West 2010) …………………………………………………………….25
N.C. Gen. Stat. § 15A-286(17) (2010) ……………………………………………………………..……..25
N.D. Cent. Code § 12.1-15-04(5) (2010) …………………………………………………………………25
Ohio Rev. Code Ann. § 2933.51(B) (LexisNexis 2010)……………………………………….………….25
Okla. Stat. tit. 13, § 176.2(12) (2010) ………………………………………………………...………..…25
18 Pa. Cons. Stat. Ann. § 5702 (West 2010) ……………………………………………..………………25
R.I. Gen. Laws § 12-5.1-1(10) (2010) ……………………………………………………………..…..…25
S.C. Code Ann. § 17-30-15(2) (2010) ………………………………………………………..……..……25
S.D. Codified Laws § 23A-35A-1(10) (2010) ……………………………………………………………25
Tenn. Code Ann. § 40-6-303(14) (2010) …………………………………………………………..……..25
Tex. Code Crim. Proc. Ann. art. 18.20(2) (West 2010) ………………………………………………..…25
Utah Code Ann. 77-23a-3(13) (LexisNexis 2010)……………………………………………………...…25
Va. Code Ann. § 19.2-61 (West 2010) …………………………………………………………………...25
Wash. Rev. Code § 9.73.030(1)(b) (2010) ………………………………………………………………..25
W. Va. Code § 62-1D-2(h) (2010) ……………………………………………………………..…………25
Wis. Stat. § 968.27(12) (2010) ……………………………………………………………..……………..25
Wyo. Stat. Ann. § 7-3-701(a)(xi) (2010) ……………………………………………………………..…..25
C. Secondary Sources
Akhil Amar, The Bill of Rights as a Constitution, 100 YALE L. J. 1131, 1146-52 (1991)………………..16
ix
JURISDICTIONAL STATEMENT
A Formal Statement of Jurisdiction has been omitted in accordance with the 2017 Rules of the University of North Carolina School of Law’s J. Braxton Craven Moot Court Competition.
2
STATEMENT OF THE CASE
A. Statement of the Facts
Just past dawn on January 20, 2014, Luna Lockwood, a proud and active member of the
St. Mungo community, made her way toward Diagon Park, located closely to her own home.
(J.A. at 3). At that time the land encompassing Diagon Park was one of the largest open spaces
in St. Mungo, and housed a community garden. (J.A. at 2). Some eight months prior, the
government decided that land from the park would be used to house new governmental buildings
and “other development.” Id. Those who wanted to preserve Diagon Park were strongly
opposed to this decision, and some members of a local environmentalist group and other
community activist members had erected an encampment on the land slated to be developed. Id.
Over the course of the eight months since the encampment had been erected, a “sizeable
number” of homeless people migrated to the encampment. Id. It was on January 20th, just after
sunrise, that police officers were to be sent in to remove the encampment and homeless
population, allowing for a fence to be erected around the land that would help to keep people out
of the space and allow construction to being. Id.
Luna Lockwood was a member of the previously mentioned local environmentalist group,
but was not one of the members who resided in the encampment—deciding to continue to live in
her home located near the park. (J.A. at 3). Anticipating the police action, Ms. Lockwood
decided to leave her home early that morning so that she could record the event, using her
camera that captured both video and audio. Id. Recording the event as the conflict developed,
Ms. Lockwood witnessed and recorded an officer begin to direct harsh language at a homeless
man, the worst of which included a racial epithet. Id. An officer who noticed Ms. Lockwood
3
record the incident then told her that recording the exchange violated Craven Gen. Stat. § 15A-
287, which makes it illegal for someone to record a conversation without the consent of all those
involved and that she needed to stop recording and delete what she had recorded. Id. Ms.
Lockwood immediately stopped recording but took no action at that time to erase the video. Id.
This incident drew the attention of Officer Harry Piper, who was dressed in plain clothes
because up until the police action in the park took place, Officer Piper had been working
undercover, posing as a member in the encampment to track and monitor the groups’ actions. Id.
Officer Piper witnessed the other officer tell Ms. Lockwood to stop filming from where he was
located on a nearby hill. Id. After her initial compliance, Officer Piper noticed Ms. Lockwood
move behind some bushes and resume her filming of the conflict. Id. After recording a second
incident where multiple officers directed multiple racial-epithets at those in the park, Ms.
Lockwood stopped recording and went home. Id. Officer Piper continued his investigation by
following Ms. Lockwood with the intention of stopping her, but was unable to do so before she
reached her nearby home and went inside. Id. Officer Piper stated that he saw “nothing” up to
this point indicating that Ms. Piper was aware that he had been observing or following her. Id.
Officer Piper approached her front door and knocked. Id. The door had a small window
through which Officer Piper could see Ms. Lockwood standing some distance back from the
door. Id. After knocking, but prior to receiving a response, Officer Piper, speaking loudly,
announced that he was a police officer and displayed a badge. Id. Continue to speak in a loud
voice, Officer Piper then ordered Lockwood to open the door. Id. Lockwood then responded,
voicing her doubts as to whether Officer Piper was actually a police officer, inquiring as to why
he did not have a police car, a police uniform, and further noting that his plain clothes uniform
looked more like the clothes of a homeless person than a police officer. Id. Ignoring all of Ms.
4
Lockwood’s statements, Officer Piper issued a second order to open the door. Id. This time Ms.
Lockwood refused, referencing recent robberies in Craven, committed by men posing as police
officers. Id. With no further discussion, Officer Piper’s response was to kick down the door. Id.
After her door was kicked down, Ms. Lockwood fled to the back of the house, grabbing her
video camera as she ran. Id. Officer Piper entered the house, restating that he was an officer and
that Ms. Lockwood was under arrest. Id. Ms. Lockwood hid behind a door as Officer Piper
began looking for her, eventually finding her. Id. When Officer Piper found Ms. Lockwood, she
began to scream for help, and then screamed at Officer Piper telling him to leave. Id.
Advancing into the bedroom, Officer Piper saw Ms. Lockwood surveying the room, and
instructed her to place her hands on her head. Id. Ms. Lockwood did not do so, and continued to
cry out, alternating between screaming for help and for Officer Piper to leave. Id. Ms.
Lockwood then attempted to reach for a backpack that was located on the bedroom floor, and
Officer Piper grabbed his baton and hit Ms. Lockwood in her leg with enough force to cause her
to drop the video camera she was holding to the ground. Id. Ms. Lockwood reached for the
camera, but she was unable to do so as Officer Piper grabbed it first. Id. Officer Piper then put
his hand on Ms. Lockwood’s back and told her to “stay down and not to move.” Id. Ms.
Lockwood continued to struggle and get back up, so Officer Piper again drew his baton and
stuck her again, except this time hitting her directly on the head, knocking Ms. Piper
unconscious. Id.
Ms. Lockwood was taken to the hospital. Id. After regaining consciousness, Ms.
Lockwood discovered that Officer Piper’s strike of his police baton to her head had caused brain
damage. Id. Ms. Lockwood no longer has full control over her motor skills or ability to speak.
Id. She attends physical therapy, and says the ordeal has inflicted her with post-traumatic stress
5
disorder. Id. Lockwood was charged with violating Craven Gen. Stat. § 15A-287 by recording a
conversation without all involved persons’ consent, a misdemeanor offense punishable by up to a
$500.00 fine and one week jail sentence. (J.A. at 4). The prosecutor then dismissed the charges
against her, and her video camera taken by Officer Piper was returned to her, but only after the
police had removed the recordings from it. Id. The police copied the recordings, are refuse to
give Ms. Lockwood a copy, or alternatively or release them to the public. Id.
B. Summary of Proceedings
After the criminal charge against her was dismissed, Ms. Lockwood brought a civil action
against Officer Harry Piper under 42 U.S.C. § 1983, with three claims. (J.A. at 4). First, Ms.
Lockwood claimed Piper’s warrantless entry into her home breached her Fourth Amendment
right to be free from unreasonable searches. Id. Second, she claimed Piper’s use of force against
her constituted excessive force in violation of her Fourth Amendment right to be free from
excessive force by law enforcement officials. Id. Third, she claimed that her arrest and the
seizure of her recording of the police action contravened her First Amendment right to gather
news and to receive information and ideas, and therefore, Craven Gen. Stat. § 15A-287 is
unconstitutional as it applies to citizen recording of police in public. Id. She alleged that in
regard to her Fourth Amendment claims and her First Amendment claim, (1) she has been
deprived of a federal right and (2) that the person who deprived her of that right acted under the
color of state law. Id.
Harry Piper attempted to raise a defense to the first claim, arguing that he was justified in
circumventing the warrant requirement, alleging that if he had left to go seek a warrant, the
evidence of the crime may have been destroyed, or disseminated to the public. Id. Ms.
6
Lockwood’s counter argument was that Piper had created the exigency in the first place, and
further that the nature of the offense was not of such a level as to require exigency at the cost of
constitutional violations. Id.
The district court granted Ms. Lockwood summary judgment as to count one, agreeing that
a warrant should have been obtained, and the objective facts of the situation did not indicate that
the existence of exigent circumstances surrounding the alleged misdemeanor offense. (J.A. at 4-
5). The district court then granted summary judgment on behalf of Harry Piper for counts two
and three. (J.A. at 5). As to count two the court determined the appropriate standard under
existing law to be whether Piper could have reasonably feared for his safety at the moment he
used the force—the court found that he could have. Id. As to count three, the district court held
that Craven Gen. Stat. § 15A 287 does not violate the First Amendment because the statute does
not prevent Ms. Lockwood from her First Amendment right to “gather news and receive
information and ideas.” Id.
Ms. Lockwood then appealed the district court’s holdings as to counts two and three. Id.
She was granted the appeal by The United States Court of Appeals for the Thirteenth Circuit,
arguing that: (a) the court should determine the reasonableness of force applied by giving
consideration to the full context of the situation, including events leading up to its application (b)
whether under the suggested new standard Officer Piper’s use of force would be considered
excessive and (c) whether Lockwood had a First Amendment right to record police officers in
public and thus, whether her arrest and the seizure of the recording contravene her First
Amendment right to gather news and receive information and ideas. Id. The majority found for
Ms. Lockwood with regard to all three questions, broadening the reasonableness requirements
imposed on state actors when they engage in fourth amendment seizures. (J.A. at 12). They also
7
held that citizens do have a right to record police in public, thus Craven Gen. Stat. § 15A-287 is
not completely unconstitutional, but an exception for the recording of police in public was
carved out. Id. However, there was a dissenting opinion which hound for Harry Piper as to all
three issues, holding for the same judgment as had been imposed by the district court. (J.A. at
16).
Harry Piper now appeals this determination to the Supreme Court of the United States,
averring that the United States Court of Appeals for the Thirteenth Circuit erred in reversing the
decision of the United States District Court for Craven, denying Ms. Lockwood’s Fourth or First
Amendment rights were violated.
SUMMARY OF THE ARGUMENT
The United States Court of Appeals for the Thirteenth Circuit was correct in reversing the
decision of the district court to grant summary judgment to Harry Piper (“Petitioner”), because
the standard applied by the district court improperly distorted Ms. Lockwood’s Fourth
Amendment “right to be secure in her person, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. CONST. AMEND. IV. The standard adopted by the district court leads
to bizarre results, as it did in this case, because it blatantly disregards one of the most critical
burdens placed on our government by the Fourth Amendment—that every search and seizure by
the government be reasonable. See Graham v. Connor, 490 U.S. 386, 395 (1989). As the United
States Court of Appeals for the Thirteenth Circuit said: “All relevant facts and circumstances
must be admitted for a court to evaluate the facts in a realistic context. The totality of the
circumstances should not automatically exclude ‘all context and causes prior to the moment’
force is employed.” Under a totality of the circumstances evaluation, the court is empowered to
8
determine which evidence is relevant to determining the reasonableness of governmental
application of force. Unlike the rigid “snapshot” standard being recommended by the Petitioner
which only takes into consideration “two or three pages of the entire book,” the totality of the
circumstances standard adopted by the United States Court of Appeals for the Thirteenth Circuit
is flexible, and would never “force” the court to ignore any evidence it believes is relevant, but
instead would empower the court to ask the question: “is this relevant.”
This Court should additionally affirm the decision of the United States Court of Appeals
for the Thirteenth Circuit that the application of force by Harry Piper was excessive, because
where a police officer intentionally or recklessly provokes a need for force, and the provocation
occurs as a natural result of a Fourth Amendment violation, the officer may be held liable for his
otherwise defensive use of force. See Billington v. Smith, 292 F.3d at 1189. The district court
previously decided that the entry into Ms. Lockwood’s home was unreasonable without a
warrant. Given this determination, Harry Piper’s excessive uses of force throughout the
encounter—culminating in Ms. Lockwood being left with life-altering trauma to her brain, are
particularly egregious as the entire encounter was predicated upon an aggressive and willfully
ignorant violation of the Fourth Amendment’s presumptive requirement that searches and
seizures occur only after a warrant has been obtained. Harry Piper’s lack of situational awareness
and continual decisions to escalate the situation by proactively using physical force as his first
option to effectuate an unconstitutional seizure was of such an unreasonably violent nature that
he quickly transformed from someone reasonably mistaken as a home invader, into someone
who was actually performing a home invasion.
Lastly, this Court should affirm the holding of the United States Court of Appeals for the
Thirteenth District that Ms. Lockwood Had a First Amendment Right to Record the Police
9
Clearing Action in a Public Place because the First Amendment operates as a multifaceted guard
affording protection to a broad range of speech and conduct, including the right to film
government officials while they are in public and acting in the course of their official duties. See
Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011). This Court has held that “the First Amendment
goes beyond protection of the press and the self-expression of individuals to prohibit government
from limiting the stock of information from which members of the public may draw.” First Nat'l
Bank v. Bellotti, 435 U.S. 765, 783 (1978). The great weight of precedent supports the
Respondent's position. No circuit court has ever held that the First Amendment is not implicated
when the government seeks to ban recording public officials on public property. No circuit court
has ever held that the act of recording police in public is unprotected by the First Amendment.
To the contrary, three circuit courts have explicitly concluded that the First Amendment provides
the public with the right to record police activity in public. See American Civil Liberties Union
v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011);
Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). This Court should hold that
whatever interest Craven may have in its eavesdropping is superseded by the public's right to
know about matters of public concern, including how police officers interact with members of
the public.
STANDARD OF REVIEW
Appellate courts review the grant or denial of summary judgment de novo. B&G Enters, Ltd. v.
United States 220 F.3d 1318, 1322 (11th Cir. 2001). In so doing, the court should seek to reach
its own decisions on the issue “without deference to that of the district” or lower court. Pall
Corp. v. Micron Separations Inc., 66 F.3d 1211, 1216 (Fed. Cir. 1995).
10
ARGUMENT
I. IN DETERMINING THE REASONABLENESS OF AN OFFICER’S USE OF FORCE
DURING AN ARREST, THIS COURT SHOULD CONSIDER ALL RELEVANT FACTS AND CIRCUMSTANCES LEADING UP TO THE MOMENT FORCE WAS USED.
The Fourth Amendment ensures individual protection from the use of excessive force by law
enforcement at anytime during the effectuation of an arrest. See Terry v. Ohio, 392 U.S. 1, 16 (1968)
(holding “it is quite plain that the Fourth Amendment governs ‘seizures' of the person which do not
eventuate in a trip to the station house and prosecution for crime—‘arrests' in traditional terminology. It
must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk
away, he has ‘seized’ that person.”). When considering an appropriate measure of force a court must
employ a reasonableness standard given the underlying circumstances and facts surrounding the arrest.
See Graham v. Connor, 490 U.S. 386, 395 (1989) (holding all claims that law enforcement officers have
used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a
free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather
than under a “substantive due process” approach.”); Bell v. Wolfish, 441 U.S. 520, 559 (1979)
(concluding “the test of reasonableness under the Fourth Amendment is not capable of precise definition
or mechanical application”); Tennessee v. Garner, 471 U.S. 1, 8-9 (1985) (stating the question is
“whether the totality of the circumstances justified a particular sort of seizure”). The central issue within
this case is whether this Court should include relevant facts and circumstances leading up to an arrest
when employing its totality of the circumstances inquiry. The Respondent respectfully submits that it
should.
A. The Petitioner’s Warrantless Entry triggered Fourth Amendment Protections for the Respondent.
Petitioner’s warrantless entry prohibited Respondent from leaving her home and therefore
triggered Fourth Amendment protections. Fourth Amendment jurisprudence provides that when a police
11
officer begins to accost an individual and prevent them from walking away, the police officer has
“seized” said individual so as to invoke the Fourth Amendment. Terry, 392 U.S. at 16. The Petitioner
contends that this Court should not consider facts and circumstances leading up to an arrest. (J.A. at 8).
Rather, Petitioner asserts that his warrantless entry should not be considered in this Court’s analysis. Id.
Although there may be circumstances that are too attenuated to be included in a court’s Fourth
Amendment analysis, an action that incites the seizure of individual should not be one of them.
Moreover, “Once it is clear that a seizure has occurred, the court should examine the actions of the
government officials leading up to the seizure.” Young v. City of Providence ex rel. Napolitano, 404
F.3d4, 22 (1st Cir. 2005).
Respondent was an observer at a local environmental protest sight. While there, Respondent
recorded the actions of the police as they secured the site. (J.A. at 3). While leaving the park, Petitioner
followed Respondent to her residence. Id. Respondent entered her home and secured the door behind her.
Id. Petitioner arrived at her residence a few moments later and demanded entry for the purpose of
obtaining a video recorder. Id. When Respondent refused, Petitioner kicked the door open and illegally
entered into the Respondent’s home. Id. Due to this warrantless entry, Petitioner impinged upon
Respondent’s freedom by prohibiting her from leaving her home. Respondent was unable to avoid any
subsequent force procured by Petitioner. Therefore, at the time of Petitioner’s entry, Respondent had been
“seized” for purposes of the Fourth Amendment. This Court should hold that an action by a law
enforcement officer, which incites the seizure of an individual, should be a factor of reasonable
consideration for any court. Moreover, once the seizure has undeniably occurred, a court should also be
given the opportunity to weigh the means in which it occurred.
B. This Court is Required to Assess the Totality of the Circumstances
This Court should incorporate Petitioner’s warrantless entry into its consideration of the
reasonableness of Petitioner’s use of force. The Garner Court stated that in order to determine whether
12
an officer used reasonable force, a court must decide, based on the totality of the circumstances, if such
force justified a particular sort of seizure. Garner, 471 U.S. at 8-9. Petitioner contends that this Court
should only consider the relevant circumstances and facts during Petitioner’s use of force and not the facts
and circumstances preceding it. (J.A. at 8). In effect, Petitioner contends that a totality of events that a
court may reasonably weigh is limited to the moment that the force is used and thus disregards any events
preceding it. The majority of circuits have interpreted the Garner Court’s holding to mean otherwise.
See, e.g., Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999) (that “totality” is an encompassing word
that implies that reasonableness should be sensitive to all of the factors bearing on the officer’s use of
force.); Deering v. Reich, 183 F.3d 645, 649 (7th Cir. 1999) (“the totality of the circumstances cannot be
limited to the precise moment that force was used.”)
Petitioner’s warrantless entry is central to the Court’s analysis on whether reasonable force was
used. Had Petitioner not illegally entered Respondent’s home, Petitioner would not have wrestled
Respondent to the ground and used his baton on her multiple times. The Seventh Circuit has held that
“totality” is an encompassing word that includes all relevant factors that cause an officer to use force.
Raso, 183 F.3d at 291). Therefore, Respondent’s warrantless entry is an essential circumstance that
dictates why force was used at all. Petitioner contends that he reasonably believed Respondent had a
weapon in the backpack she was reaching for. Respondent cites this as a sufficient justification to use his
baton to subdue her. (J.A. at 8). Prior to this, however, Petitioner had witnessed Respondent filming his
fellow officers and leave a local park. (J.A. at 3). Petitioner then followed Respondent home. Id. At no
time did Petitioner observe Respondent committing a violent crime or carrying a dangerous weapon.
Accordingly, Petitioner could not have reasonably believed that Respondent had a weapon when he
illegally entered her home. Petitioner asserts that because she may have been reaching for a weapon
during their struggle, his amount of force became justified. (J.A. at 8). Given what Petitioner had
witnessed prior to using force and the means by which he entered Lockwood’s home, such should not be
the case. Sculpting the phrase, “a totality of the circumstances,” to mean only those circumstances
13
occurring at the moment of force does not make sense in balance with Fourth Amendment protections.
Should this Court accept the Petitioner’s view, it would cut the protections provided by Fourth
Amendment at its knees. This Court should hold that the reasonableness of an officer’s force is based on
all of his interactions with the suspect leading up to an arrest.
C. The Petitioner Recklessly and Intentionally Created the Need for the use of Force
Petitioner’s illegal entry created the need for the use of force. Courts have declared that when an
officer intentionally or recklessly provokes a violent confrontation, an officer can be liable for his use of
force. Billington v.Smith, 292 F.3d 1177, 1189 (9th Cir. 2002) (“where an officer intentionally or
recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment
violation, the officer may be liable for his otherwise defensive use of deadly force” ); Hastings v. Barnes,
252 F. App'x 197, 203 (10th Cir. 2007) (“the reasonableness inquiry “depends both on whether the officer
was in danger at the precise moment that he used force and on whether the officer’s own reckless or
deliberate conduct during the seizure unreasonably created the need to use such force.”).
The Petitioner intentionally and recklessly provoked a confrontation with Lockwood by
unlawfully entering her home. Piper followed Lockwood to her residence with the intention of obtaining
the video recorder. (J.A. at 3). When Lockwood refused to allow Piper entrance into her home, Piper
violently kicked open the door. Id. Piper claims that this unlawful conduct is not essential to this Court’s
determination of whether the force used on Lockwood was reasonable. This Court should disagree. Piper
entered Lockwood’s home with a reasonable belief that a physical altercation could ensue. Therefore,
Piper’s conscious disregard for obtaining a search warrant and his forceful intrusion into Lockwood’s
residence constitutes intentional reckless behavior. Piper reasonably knew that by entering Lockwood’s
home, he was entering a situation that was beyond the permissible bounds of his authority and would
likely require the use of physical force on Lockwood. Still, Piper proceeded with the entry even when
Lockwood vocally refused entrance into her home. Id. As a result, a physical struggle occurred in
14
Lockwood’s bedroom as she reached for a nearby backpack. Id. Piper claims that when Lockwood
reached for her backpack, it warranted the use of force because it may have contained a weapon. (J.A. at
8). Even if the backpack indeed contained a weapon, Piper would not have been in danger at the moment
of force had he not unlawfully entered Lockwood’s home. Thus, had Piper not intentionally and
recklessly provoked the resulting confrontation with Lockwood, his use of force on her would not have
been required.
II. THE FIRST AMENDMENT PROVIDES INDIVIDUALS WITH THE RIGHT TO RECORD OFFICIAL GOVERNMENT COMMUNICATIONS MADE IN PUBLIC, REGARDLESS OF WHETHER THE RECORDING INDIVIDUAL IS A MEMBER OF THE PRESS. The First Amendment operates as a multifaceted guard that affords protection to a broad
range of speech and conduct, including the right to film government officials while they are in
public and acting in the course of their official duties. See Glik v. Cunniffe, 655 F.3d 78, 82 (1st
Cir. 2011). Craven Gen. Stat. § 15A-287 ("Eavesdropping Statute") proscribes a sweeping range
of constitutionally protected conduct, including an individual's right to record government
officials in public. (J.A. at 4). Specifically, the Eavesdropping Statute bans all recordings made
without the consent of all parties, regardless of whether any party intended the conversation to be
private or had any reasonable expectation of privacy in their communication. Id. Craven's
Eavesdropping Statute directly intrudes upon an individual's First Amendment right to obtain
and disseminate public information without sufficient justification or tailoring.
Petitioner asserts that individuals have no First Amendment right to record what police
officers say while performing their duties in public. (J.A. at 10). Petitioner's argument ignores
the wake of well-established precedent openly and directly contrary to this position. See
American Civil Liberties Union v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012); Glik, 655 F.3d at
15
82; Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). While this Court has not
yet acknowledged this particular right, it has recognized a First Amendment right to receive and
gather information, especially when that information encourages free discourse related to
governmental affairs. First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978); Mills v. Alabama,
384 U.S. 214, 218 (1966). Petitioner suggests that Craven's Eavesdropping Statute permissibly
proscribes recording an officer's public communications on the grounds that the Statute is
necessary to further the government's important interest in protecting conversational privacy.
(J.A. at 10). Petitioner's argument, however, is belied for three dispositive reasons. First, police
officers do not have a reasonable expectation of privacy in communications made publically to
private citizens. See Alvarez, 679 F.3d at 605-06; see also Katz v. United States, 389 U.S. 347,
351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is
not a subject of Fourth Amendment protection"). Second, an individual's constitutional right to
gather information relevant to the public's interest outweighs any interest the government may
have in protecting the conversational privacy of an officer's public communication. See
Bartnicki v. Vopper, 532 U.S. 514, 534 (2001); Glik, 655 F.3d at 83. Third, Craven's
Eavesdropping statute is unconstitutionally overbroad because it restricts far more speech than is
necessary to protect the statute's legitimate sweep. See United States v. Stevens, 599 U.S. 460,
473-74 (2010). Based on the following analysis, this Court should affirm the ruling of the
Thirteenth Circuit and hold that individuals, including those with no formal affiliation to the
press, have a First Amendment right to record public communications.
A. Individuals have a First Amendment right to record police officers who publically engage private citizens in the course of their duties, regardless of whether the recording individual has a formal affiliation to the press. 1. The First Amendment provides the right to record police activity in public.
16
A Constitutional right may materialize and bestow individual protections where none had
been recognized before. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485 (1965)
(establishing an explicit and legitimate right to privacy). The "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that help give them life
and substance." Id. at 484. No Amendment has more of these "penumbras" and confer
otherwise unenumerated rights than the First. See Akhil Amar, The Bill of Rights as a
Constitution, 100 YALE L. J. 1131, 1146-52 (1991). This Court has held that “the First
Amendment goes beyond protection of the press and the self-expression of individuals to
prohibit government from limiting the stock of information from which members of the public
may draw.” First Nat'l Bank v. Bellotti, 435 U.S. 765, 783 (1978). This Court has also
recognized that Americans have a First Amendment right to collect and distribute public
information concerning government activities. See Nixon v. Warner Communications, Inc., 435
U.S. 589, 597(1978) (acknowledging public's "general right to inspect and copy public records").
The public's right to know of government affairs has deep historical roots. See Marbury v.
Madison, 5 U.S. 137, 144-45 (1803) (declaring "all the world" had a right to know whether
commissioned judges had taken office). Federal Courts have a duty to act as the guardians of the
public's right to know. See GTE Sylvania, Inc. v. Consumers Union of United States, Inc., 445
U.S. 375, 387 (1980). "The right to know is crucial to the governing powers of the people."
Branzburg v. Hayes, 408 U.S. 665, 721 (1972) (Douglas, J., dissenting).
The right to publish a recording would be largely superficial if the First Amendment did
not also insulate the antecedent act of making the recording. By banning all nonconsensual
recordings, Craven's Eavesdropping Statute regulates a medium of expression that inevitably
affects communication itself. See City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994) (holding
17
restrictions on mediums of communications analogous to regulations on pure speech).
Regulations of communicative mediums are subject to the same constitutional scrutiny as
regulations of pure speech. See Reno v. American Civil Liberties Union, 521 U.S. 844, 869–70
(1997) (concluding “no basis for qualifying the level of First Amendment scrutiny that should be
applied to [the internet as a medium]”). "Audio and audiovisual recording are media of
expression commonly used for the preservation and dissemination of information and ideas and
thus are 'included within the free speech and free press guaranty of the First and Fourteenth
Amendments.'" Alvarez, 679 F.3d at 595 (quoting Burstyn v. Wilson, 343 U.S. 495, 502 (1952)).
The right to record government officials who carry out their duties in public is a necessary
corollary to the public's right to know and receive information concerning governmental affairs.
See Glik, 655 F.3d at 82. "Gathering information about government officials in a form that can
readily be disseminated to others serves a cardinal First Amendment interest in protecting and
promoting “'the free discussion of governmental affairs.'” Id. (quoting Mills v. Alabama, 384
U.S. 214, 218 (1966)).
The great weight of precedent supports the Respondent's position. No circuit court has
ever held that the First Amendment is not implicated when the government seeks to ban
recording public officials on public property. No circuit court has ever held that the act of
recording police in public is unprotected by the First Amendment. To the contrary, three circuit
courts have explicitly concluded that the First Amendment provides the public with the right to
record police activity in public. See American Civil Liberties Union v. Alvarez, 679 F.3d 583,
595 (7th Cir. 2012); Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011); Smith v. City of Cumming,
18
212 F.3d 1332, 1333 (11th Cir. 2000).1 Three other circuit courts have recognized an explicit
First Amendment right to record matters of public concern. See S.H.A.R.K. v. Metro Parks
Serving Summit County, 499 F.3d 553, 559–63 (6th Cir. 2007) (analyzing prohibition of
videotaping in state park after hours as First Amendment right to access claim); Fordyce v. City
of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (holding genuine issue existed as to whether officer
arrested individual "to prevent or dissuade him from exercising his First Amendment right to
film matters of public interest"); Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994)
(holding videotaping state committee meeting “touched on expressive conduct protected by the
Free Speech Clause of the First Amendment”).
Like the Massachusetts Wiretap Statute in Glik and the Illinois Eavesdropping Statute in
Alvarez, Craven's Eavesdropping Statute treads heavily upon an individual's constitutional right
to record police and matters of public interest in public. (J.A. at 11); see also Alvarez, 679 F.3d
at 595; Glik, 655 F.3d at 82. Craven's Eavesdropping Statute broadly proscribes recording any
conversation without the consent of all parties involved regardless of whether the
communication was intended to be private. (J.A. at 3). In the specific facts of this case, Craven's
Eavesdropping Statute prohibits the nonconsensual recording of police while they perform their
official duties in public. (J.A. at 2-3). The Respondent was accused of filming official
government activity even though "there is practically universal agreement that a major purpose
of’ the First Amendment ‘was to protect the free discussion of governmental affairs.'" Arizona
1 Three other circuit courts have held that a First Amendment right to record police was not yet "clearly established" for purposes of retaliation for exercising a constitutional right under 42 U.S.C. § 1983. See Mocek v. City of Alburquerue, 813 F.3d 912, 930-31 (10th Cir. 2015) (holding right to record not yet "clearly established" in Tenth Circuit); Kelly v. Borough of Carlisle, 622 F.3d 248, 259-63 (3rd Cir. 2010) (concluding right to film police not yet "clearly established" in Third Circuit); Szymeci v. Houck, 353 Fed. Appx. 852, 853 (4th Cir. 2009) (explaining right to record police not yet "clearly established" in Fourth Circuit).
19
Free Enterprise Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 754 (2011) (quoting
Buckley v. Valeo, 424 U.S. 1, 14 (1976)).
Craven's Eavesdropping statute was created to protect conversational privacy. (J.A. at
10). As applied to this case, the statute would protect the conversational privacy of a uniformed
police officer, while the officer was in public and acting in the course of his official duties. (J.A.
at 10). A uniformed officer has no justifiable expectation of privacy in these circumstances. The
Respondent filmed "a particularly heated and epithet-filled encounter between the police and
those in the park." (J.A. at 3). The recorded communications took place in an open park and at
an audible volume. (J.A. at 3). There can be no reasonable expectation of privacy as to “[w]hat
a person knowingly exposes to the public." Katz, 389 U.S. at 351. Criminalizing audio
recording in a situation where the parties to a conversation do not have a reasonable expectation
of privacy impermissibly burdens the First Amendment right to record public events. See
Alvarez, 679 F.3d at 605-06. Judge McGonagall, dissenting to the panel's opinion below,
suggested that protecting "personal conversational privacy actually serves First Amendment
interests because “'fear of public disclosure of private conversations might well have a chilling
effect on private speech.'” (J.A. at 14) (quoting Bartnicki v. Vopper, 532 U.S. 514, 534 (2001)).
Those interests is absent here because "when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications." Garcetti v. Ceballos, 547 U.S. 410, 421
(2006). Indeed, the Bartnicki case involved the interception of a private phone call implicating
greater privacy interests than recording public communications in a park. See Bartnicki, 532
U.S. 514, 517-18. Nevertheless, the Bartnicki Court reversed a conviction under the federal
wiretap statute because “privacy concerns give way when balanced against the interest in
20
publishing matters of public importance.” Id. at 516. In the case currently before the Court, this
balance is undoubtedly struck. For this reason, the Court should make clear; the First
Amendment provides the right to record police activity in public.
2. The First Amendment applies equally to private individuals and members of the press. "It has generally been held that the First Amendment does not guarantee the press a
constitutional right of special access to information not available to the public generally.”
Branzburg, 408 U.S. at 684. Members of the "institutional press" enjoy no greater rights under
the First Amendment than others. See Citizens United v. FEC, 558 U.S. 310, 351 (2010) (“There
is no precedent supporting laws that attempt to distinguish between corporations which are
deemed to be exempt as media corporations and those which are not .... This differential
treatment cannot be squared with the First Amendment.”). In other words, the First
Amendment's protective canopy extends no further over members of the press than it does for
private individuals.
All speakers are equal.2 The First Amendment rights of the press and rights of
individuals do not differ. This Court has always upheld that proposition. See, e.g., Citizens
United, 558 U.S. at 351; Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); Branzburg, 408
U.S. at 682-83; Associated Press v. NLRB, 301 U.S. 103, 132-33 (1937). This case presents no
reason to depart from this principle.
This Court’s first case dispositive as to whether the press had greater First Amendment
rights than the public was Associated Press v. NLRB, 301 U.S. 103 (1937). There, the
2 Commercial speech is afforded lesser protections under the First Amendment than other forms of speech. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 770-71 (1976). However, whether speech is commercial does not turn upon the identity of the speaker, but the intent of the message. See id. at 762 (explaining commercial speech does “no more than propose a commercial transaction”).
21
Associated Press argued that it was exempted from federal labor law on the basis that the press
enjoyed privileges under the First Amendment that gave it the ability to terminate employees for
joining a union. See id. at 131. The Court rejected this argument, holding that “[t]he publisher
of a newspaper has no special immunity from the application of general laws.” Id. at 132.
A similar argument was made in Branzburg and in Cohen. In Branzburg, the Court held
that the First Amendment did not provide members of the press with a special right to ignore
grand jury subpoenas. See Branzburg, 408 U.S. at 682-83. In Cohen, the Court held that the
press did not enjoy special immunity under the First Amendment for damages for a claim of
promissory estoppel. See Cohen, 501 U.S. at 669. Specifically, the Court announced 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,” and that
“enforcement of such general laws against the press is not subject to stricter scrutiny than would
be applied to enforcement against other persons or organizations.” Cohen, 501 U.S. at 669-70.
Branzburg and Cohen therefore stand for the principle that members of the press do not enjoy
superior First Amendment rights than the public. Citizens United only confirmed this premise.
There, the Court took explicit exception to the portion of a law that exempted media corporations
from using funds to advocate for the election or defeat of a candidate. See Citizens United, 558
U.S. at 318, 352. The Court declared, “[t]here is no precedent supporting laws that attempt to
distinguish between corporations which are deemed to be exempt as media corporations and
those which are not .... This differential treatment cannot be squared with the First Amendment.”
Id. at 352-53. The Petitioner’s reading of the First Amendment is out of sync with this Court’s
aforementioned analysis. If the press has a First Amendment right to film unconsented to
conversations in public, so too must members of the public. See Houchins v. KQED, Inc., 438
22
U.S. 1, 16 (Stewart, J., concurring) (observing that the First Amendment “assure[s] the public
and the press equal access once government has opened its doors.”).
Furthermore, the constitutional guarantees afforded to the press “are not for the benefit of
the press so much as for the benefit of all of us.” Time, Inc. v. Hill, 385 U.S. 374, 389 (1967).
The press serves as an agent of the public. Its purpose is to inform and educate the public. See
Bellotti, 435 U.S. at 781. To that end, the First Amendment interests at play are derived
expressly from the rights of the public. The First Amendment right to gather news is not one that
belongs to the press, but to the citizenry. See id. Accordingly, the press and the public must
have the same First Amendment right to record a police officer’s public conversations.
Finally, providing greater First Amendment protections to the press would leave courts in
the difficult position of distinguishing members of the press from private citizens—a delineation
difficult to draw with the proliferation of recent technology. “With the advent of the Internet and
the decline of print and broadcast media… the line between the media and others who wish to
comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at
352. The Majority Opinion below recognized that “many of our images of current events come
from bystanders with a ready cell phone or digital camera rather than a traditional film crew, and
news stories are now just as likely to be broken by a blogger at her computer as a reporter at a
major newspaper.” (J.A. at 12). Allowing only members of the press to record unconsented to
communications made in public would place trial courts in the impossible position of inquiring
into an individual’s press membership status. Based on the aforementioned reasons, the Court
should hold that individuals have a First Amendment right to record police officers who
publically communicate with private citizens in the course of their duties, regardless of whether
the recording individual has a formal affiliation to the press.
23
B. Craven's Eavesdropping Statute fails intermediate scrutiny.
1. No legitimate important government interest is furthered by criminalizing the recording of conversations where the parties to the conversation do not have a reasonable expectation of privacy.
This case involves a recording made in a public park. (J.A. at 3). Forums like these
"occupy a 'special position in terms of First Amendment protection' because of their historic role
as sites for discussion and debate." McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quoting
United States v. Grace, 461 U.S. 171, 180 (1983). Public parks have "immemorially been held
in trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions." Hague v.
Committee for Industry Organization, 307 U.S. 496, 515 (1939). As applied to this case,
Craven's Eavesdropping Statute criminalizes the Respondent's First Amendment right to record
matters of public concern occurring in a public forum. (J.A. at 3-4). While the Respondent
concedes that the law is content neutral, and therefore subject to review under intermediate
scrutiny, see Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226-27 (2015), the Eavesdropping
Statute fails that test because it is overbroad and, as applied, does not advance an important
governmental interest. See Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997).
Craven's Eavesdropping Statute was created to protect conversational privacy. (J.A. at
10). But no one has a reasonable expectation of privacy in communications made in a public
place and at volume audible to those around the speaker. See Katz, 389 U.S. at 351. In
circumstances such as these, where parties to an intercepted conversation do not have a
reasonable expectation of privacy, no governmental interest, much less an important one, is
advanced by criminalizing the recording of that conversation.
The only legitimate and important interest at play in this case is the public's interest in
knowing what their government is up to. The Petitioner was arrested, charged, and prosecuted
24
for attempting to provide the public with that information by recording official actions taken by
police in a public park, including an heated encounter between an officer and a homeless man.
(J.A. at 3). The First Amendment was meant to protect such conduct, so that one could "bare the
secrets of government and inform the people." New York Times Co. v. United States, 403 U.S.
713, 717 (1971) (Black, J., concurring). Because "[o]pen debate and discussion of public issues
are vital to our national health," see id. at 724 (Douglas, J., concurring), this Court should hold
that whatever interest Craven may have in its Eavesdropping is superseded by the public's right
to know about matters of public concern, including how police officer's interact with members of
the public.
2. Craven's Eavesdropping Statute is not properly tailored.
With regard to constitutional scrutiny, the Court complements its interest analysis by
juxtaposing a statute’s governing breadth beside the government’s claimed interest. See Turner,
520 U.S. at 186. A statute to passes intermediate scrutiny only if it does not burden significantly
more speech than is necessary to advance the government’s important interest. See id. In other
words, a law is inconsistent with the First Amendment if it proscribes more speech than is
necessary. See City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994). As applied to the Respondent,
Craven's Eavesdropping Statute impermissibly includes protected conduct in its unconstitutional
sweep.
Craven's Eavesdropping Statute criminalizes nonconsensual recordings in all
circumstances. (J.A. at 4). While reasonable restrictions on the right to record may be imposed
when the circumstances justify them, see Glik, 655 F.3d at 84 (right to film may be subject to
reasonable time, place, and manner restrictions), an all out prohibition is overly broad. In fact,
the majority of states, as well as the federal government, recognize that parties to a conversation
25
must have a reasonable expectation of privacy in their conversation in order to impose criminal
penalties. See 18 U.S.C. § 2510(2) (2010); Ala. Code § 13A-11-30(1) (2010); Ariz. Rev.Stat.
Ann. § 13-3001(8) (2010); Cal. Penal Code § 632(a) & (c) (Deering 2010); Colo. Rev. Stat. § 18-
9-301(8) (2010); Del. Code Ann. § 2401(13) (2010); Fla. Stat. § 934.02(2) (2010); Ga. Code
Ann. § 16-11-62(1) (2010); Haw. Rev. Stat. § 803-41 (2010); Idaho Code Ann. § 18-6701(2)
(2010); Iowa Code § 808B.1(8) (2010); Kan. Stat. Ann. § 22-2514(2) (2010); Ky. Rev. Stat.
Ann. § 526.010, (LexisNexis 2010); La. Rev. Stat. Ann. § 15:1302(14) (2010); Me. Rev. Stat. tit.
15, § 709(4)(B) & 709(5) (2010); Md. Code. Ann., Cts. & Jud. Proc. §10-401(2)(i) (2010); Mich.
Comp. Laws § 750.539a (2010); Minn. Stat. § 626A.01(4) (2010); Miss. Code Ann. § 41-29-
501(j) (2010); Mo. Rev. Stat. § 542.400(8) (2010); Neb. Rev. Stat. § 86-283 (2010); Nev. Rev.
Stat. § 179.440 (2010); N.H. Rev. Stat. Ann. 570-A:1 (2010); N.J. Stat. Ann. § 2A:156A-2(b)
(West 2010); N.C. Gen. Stat. § 15A-286(17) (2010); N.D. Cent. Code § 12.1-15-04(5) (2010);
Ohio Rev. Code Ann. § 2933.51(B) (LexisNexis 2010); Okla. Stat. tit. 13, § 176.2(12) (2010); 18
Pa. Cons. Stat. Ann. § 5702 (West 2010); R.I. Gen. Laws § 12-5.1-1(10) (2010); S.C. Code Ann.
§ 17-30-15(2) (2010); S.D. Codified Laws § 23A-35A-1(10) (2010); Tenn. Code Ann. § 40-6-
303(14) (2010); Tex. Code Crim. Proc. Ann. art. 18.20(2) (West 2010); Utah Code Ann. 77-23a-
3(13) (LexisNexis 2010); Va. Code Ann. § 19.2-61 (West 2010); Wash. Rev. Code §
9.73.030(1)(b) (2010); W. Va. Code § 62-1D-2(h) (2010); Wis. Stat. § 968.27(12) (2010); Wyo.
Stat. Ann. § 7-3-701(a)(xi) (2010).
Craven's Eavesdropping Statute attempts to swat a housefly with a sledgehammer. The
Statute unconstitutionally criminalizes conduct protected by the First Amendment in its
sweeping prohibition. For this and all of the other aforementioned reasons, this Court should
26
affirm the ruling of the Thirteenth Circuit and hold that individuals, including those with no
formal affiliation to the press, have a First Amendment right to record public communications.
CONCLUSION
Based on the foregoing reasons, a court should be allowed to review all relevant facts and
circumstances leading up to the moment of force when determining the reasonableness of a
Police Officer’s use of force under the Fourth Amendment. Moreover, the First Amendment
affords all individuals, regardless if they are members of the press or not, the right to record
official government communications in a public setting. The Respondent politely requests
that this honorable Court affirm the decision of the United States Court of Appeals for the
Thirteenth Circuit.
Respectfully submitted,
Team B
Attorneys for the Respondent.