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By Jason Boleman

A federal court declared a towns ban on livestreaming certain interactions may not survive First Amendment scrutiny, and that a plaintiff who was barred from livestreaming an interaction due to the policy plausibly alleged a constitutional violation.

Defendants have thus far failed to establish that the alleged livestreaming policy is sufficiently grounded in, and tailored to, strong governmental interests to survive First Amendment scrutiny, Judge Julius N. Richardson of the 4th U.S. Circuit Court of Appeals wrote.

The court further found that because the law was unclear at the time of the traffic stop in question, the officers actions were protected by qualified immunity, affirming the decision of the lower court.

Richardson authored the opinion in Sharpe v. Winterville Police Department (VLW 023-2-032) and was joined by U.S. District Judge Michael S. Nachmanoff from the Eastern District of Virginia, who sat by designation on the case.

Fourth Circuit Judge Paul V. Niemeyer authored an eight-page concurring opinion, noting that the majority opinion hardly acknowledges the role of the Fourth Amendment in the relevant analysis and the relationship of the Fourth Amendment to other constitutionally protected rights.

Background

Shortly after the vehicle he was in was pulled over, Dijon Sharpe started streaming to Facebook Live, a livestreaming video platform. Upon noticing this, Myers Helms of the Winterville Police Department in North Carolina attempted to take Sharpes phone, reaching through Sharpes open car window.

Helms and his partner informed Sharpe that he was allowed to record the stop but could not stream to Facebook Live because of concerns surrounding officer safety. The officers further stated that Sharpe could be arrested or have his phone taken away if he livestreamed a future encounter with police.

Sharpe sued the officers in their official capacities, effectively suing the Town of Winterville, alleging the policy prohibiting livestreaming police encounters violates the First Amendment of the U.S. Constitution. Sharpe further sued Helms in his individual capacity.

At trial, the district court found the policy did not violate the First Amendment and awarded the defendants judgment on the pleadings. The court further found the suit against Helms in his individual capacity was barred by qualified immunity.

First Amendment claim

Richardson said Sharpe plausibly alleged the town of Winterville has a policy barring livestreaming of traffic stops, a policy which he stated reaches protected speech.

[T]o survive First Amendment scrutiny, the Town needs to justify the alleged policy by proving it is tailored to weighty enough interests. The Town has not yet met that burden, the judge wrote.

Richardson noted that for Sharpes claim to survive, he only needs to plausibly allege that the policy preventing livestreaming exists and that the policy violates the First Amendment. The mere facts of the case, including that the officers attempted to seize his phone upon learning Sharpe was livestreaming, were sufficient to meet the first prong, the judge explained.

As to the second point, creating and disseminating information is protected speech under the First Amendment, Richardson pointed out.

[O]ther courts have routinely recognized these principles extend the First Amendment to recording particularly when the information involves matters of public interest like police encounters, he wrote.

The judge said recording police encounters contributes to discussions on government affairs, with livestreaming being one way to disseminate that information.

The town of Winterville claimed that livestreaming a traffic stop endangers officers because viewers can locate the officers and intervene in the encounter, and represents a weighty enough interest to justify the policy.

But Richardson said that, at this stage, the court cannot yet tell if the interest is enough to sustain the policy.

[E]ven though the Town has a strong interest in protecting its officers, Defendants have not done enough to show that this policy furthers or is tailored to that interest. Nor is that gap filled here by common sense or caselaw, he wrote.

Qualified immunity

After determining the first claim survived, Richardson turned to the individual-capacity claim against Helms, which the lower court barred due to qualified immunity.

Richardson agreed with that holding from the lower court.

Qualified immunity protects Officer Helms unless it was clearly established at the time of the traffic stop that forbidding a passenger from livestreaming their own traffic stop violated the First Amendment. Here, no precedent in this Circuit nor consensus of authority from the other Circuits established that Officer Helmss actions were unconstitutional, he wrote.

After making that determination, Richardson vacated the lower court ruling on the official-capacity claim, affirmed the ruling on the individual-capacity claim and remanded the case for further proceedings.

Concurring opinion

Niemeyer agreed that the officer was entitled to qualified immunity.

However, he noted that the issues here arise in the context of a lawful Fourth Amendment seizure a traffic stop.

During this stop, Sharpe refused to obey police orders to stop using his cell phone to communicate with others.

The judge explained that the restriction on using a cell-phone was thus an aspect of the seizure. As the Fourth Amendment regulates the legality of that restriction, officers, when conducting traffic stops, may intrude on the liberty interests of those who have been stopped as long as it is reasonable.

The issue therefore should be restated, I submit, to whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others, Niemeyer wrote. This is a nuanced, but meaningful, adjustment to the issue addressed in the majority opinion . While the two analyses might, but need not, lead to the same conclusion, I believe that we should apply the reasonableness test of the Fourth Amendment because the restrictions about which the plaintiff complains were imposed as a part of a lawful Fourth Amendment seizure.

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Livestreaming police stop constitutionally protected - North Carolina Lawyers Weekly

WASHINGTON The F.B.I. was examining whether a foreign government had targeted a Republican lawmaker for an intelligence operation when the bureau conducted botched searches for information about him within messages swept up under an expiring warrantless surveillance law, according to people familiar with the matter.

The disclosure helps clarify the circumstances surrounding the scrutiny of the lawmaker, Representative Darin LaHood of Illinois, and carries policy implications as Congress debates whether to reauthorize the surveillance law, known as Section 702.

The question of what happened has lingered over that debate since December, when the government declassified a report about incidents in which F.B.I. officials had failed to comply with rules for retrieving messages gathered under the law. A footnote revealed that an intelligence analyst had used the name of a member of Congress as a search term without including necessary limiting terms to screen out any irrelevant messages.

Last month, one major piece of the puzzle came into view when Mr. LaHood said at a House Intelligence Committee hearing that he had concluded that he was the lawmaker.

Mr. LaHood provided no further details about why the F.B.I. had searched for information about him. But people familiar with the matter, speaking on the condition of anonymity to discuss a sensitive matter, filled in some of the remaining blanks.

The F.B.I., the people said, did not suspect Mr. LaHood of any wrongdoing. Rather, it was investigating suspicions that a foreign government had targeted him as part of an espionage or covert influence intelligence operation. Seeking more information to help determine whether he was a potential victim, it queried for messages mentioning his name as a defensive measure.

The people familiar with the matter declined to identify the foreign government. But the queries, which they said unfolded earlier in 2019, happened when Mr. LaHood was heavily engaged in China trade policy, including discussing tariffs and the possibility of a trade deal with officials from both China and the Trump administration.

Mr. LaHood declined to comment for this article.

Section 702 allows the government to obtain, without a warrant, the messages of targeted foreigners abroad from American companies like Google and AT&T even when those foreigners are communicating with or about Americans. Enacted in 2008, it legalized a version of the once-secret warrantless surveillance program the Bush administration set up after the Sept. 11, 2001, attacks.

Civil liberties advocates have long opposed or sought to curb Section 702 because of its implications for Americans privacy. Congress reauthorized it in 2012 and 2018, but it is expected to face steeper odds this year because many Republicans have aligned themselves with former President Donald J. Trumps hostility to the F.B.I.and national security surveillance.

Mr. LaHood, a former counterterrorism prosecutor, supports reauthorizing Section 702 and leads a bipartisan group of House Intelligence Committee members who are studying how to persuade Congress to pass such a bill. But he is also very interested in international trade.

His district in Illinois, which includes Peoria and many rural counties, has manufacturers like Caterpillar and farmers who grow commodities like soybeans and sorghum, which China imports. That put him in a difficult position when Mr. Trump began a trade war with China and imposed tariffs on Chinese goods. In retaliation, China imposed tariffs that threatened to hurt the economy in Mr. LaHoods district.

In early 2019, Mr. LaHood helped sponsor a bill that would make it easier for Congress to block changes to tariffs. As a chairman of a U.S.-China Working Group in the House, he also traveled to China that March with a congressional delegation and met with top Chinese agricultural and commerce officials in an effort to improve the trade relationship.

In public comments throughout the spring and summer, Mr. LaHood tried to straddle Mr. Trumps tough stance toward China and his districts need to de-escalate the trade war. He repeatedly echoed Mr. Trumps criticism of Chinese trade practices, but also argued that both sides needed to strike a deal that would ease the tariffs.

What we consider before using anonymous sources.Do the sources know the information? Whats their motivation for telling us? Have they proved reliable in the past? Can we corroborate the information? Even with these questions satisfied, The Times uses anonymous sources as a last resort. The reporter and at least one editor know the identity of the source.

In the declassified report detailing the botched queries, overseers notably did not deem it an abuse that the F.B.I. had looked for information about a lawmaker per se, meaning there was an authorized purpose and a sufficient basis for the searches to be conducted. The problem, in the reports telling, was only that the queries were too broadly worded.

As a general matter, a senior official said, foreign intelligence services regularly target high-level American government officials including lawmakers, their staff members and their associates for both intelligence gathering and covert influence efforts.

When facts specifically indicate that may be happening, counterintelligence analysts query the Section 702 repository for more information, hunting for any messages in which foreign agents discussed how to gain access to officials, tried to set up engagements with officials or tried to directly communicate with officials who may be unaware of the links to a foreign government.

At the Intelligence Committee hearing last month, Mr. LaHood echoed Trump-style Republican critics of the F.B.I. by accusing the bureau of having abused its surveillance powers. The searches were careless, he said, describing them as an egregious violation, and declaring that it had a trust problem. But he also called Section 702 a critical tool and argued that Congress should reauthorize it.

He elicited testimony from the F.B.I. director, Christopher A. Wray, about reforms the bureau made in 2021 and 2022 to tighten limits on retrieving information gathered using Section 702. (The changes include requiring a deputy director to approve sensitive queries involving elected officials.)

Mr. LaHood concluded by asking a series of intelligence officials to explain why Section 702 was needed to counter China.

Avril Haines, the director of national intelligence, responded, for example: Its crucial in the context of counterintelligence where we are looking at where it is that Chinas efforts to send spies into the United States may be and what their planning is in relation to it.

The disclosure of the context of the queries comes as some privacy advocates want Congress to require the government to get a warrant from a court before it may query for information about an American.

The House in 2014 and 2015 voted to bar queries for information about Americans without court orders, but the proposal faltered. In 2018, Congress required the F.B.I. to obtain a court order to read any results from queries about an American who is already the subject of a criminal investigation, but wrote the rule so narrowly that it does not apply to most queries.

The discussion of proposals to impose a warrant requirement for queries about Americans has largely centered on situations where the subject is an investigative target. There has been less discussion about whatthat change would mean for defensive searches, where there is no probable cause to believe the subject has engaged in wrongdoing.

If Congress wanted to impose a warrant requirement while preserving the ability to conduct defensive searches, it could make an exception for that category or craft a different legal standard for court orders. David Kris, a former senior Justice Department national security official, said one possibility could be to have judges weigh whether under the totality of circumstances, a defensive query would be reasonable.

But Sean Vitka, a policy counsel for Demand Progress Action, a civil liberties group, expressed skepticism about creating an exception or lower standard for queries if the F.B.I. deems their purpose to be defensive.

Frequently there is ambiguity as to whether someone is a witness or a target, and theres no defensive or offensive distinction in the Fourth Amendment a search is a search, he said.

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F.B.I. Feared Lawmaker Was Target of Foreign Intelligence Operation - The New York Times

HOUSTON, Texas (KTRK) -- Houston police released new information Wednesday, a day after an officer shot and killed a man in the parking lot of a Family Dollar on the city's south side.

The shooting happened in the store's parking lot at 12375 Martin Luther King Blvd. at about 2:30 p.m. Tuesday. According to Houston police, Officer K. Cummins, whose first name wasn't provided by the department, determined a vehicle in the lot had been stolen in an armed robbery earlier that day.

Cummins saw a man in the driver's seat and attempted to detain him, according to police.

ORIGINAL STORY: Officer shoots man behind wheel of car taken from a robbery, HPD says

Police said the man, who they have not yet identified, "put the vehicle in reverse and intentionally struck the patrol vehicle." They claim the driver then exited the vehicle and "initiated a physical altercation" with Cummins in which both men ended up on the ground.

At that point, police said the driver's female acquaintance "hovered over top" of Cummins and grabbed his shirt.

Police said the driver knocked a Taser and magazine away from Cummins. His acquaintance, identified as Donneka Abraham, picked up the equipment and "refused" to give it back. Abraham has been charged with a count of interfering with an arrest.

According to police, the driver knocked off Cummins' radio and got on top of him. That's when police said Cummins fired his gun "at least once," hitting the man one time. The suspect was rushed to the hospital, where he was pronounced dead.

Eyewitness News also learned that Cummins opened fire at someone while on duty in the past.

HPD confirms he shot and injured Mario Watts in a separate incident in 2021. Watts was out on five bonds at the time of the incident, police said.

Watts is heard on bodycam telling Cummins, "There's no reason to get out the car."

"But I'm asking you to. So therefore you have to," Cummins replies.

Cummins then refers to a Fourth Amendment Supreme Court case, Pennsylvania v. Mimms, as his reason for the command. Watts responds by asking the officer to call his sergeant, to which Cummins refuses.

"No, get out of the vehicle," Cummins says as he attempted to yank Watts from the car.

The bodycam becomes shaky as the situation leads up to its climax. Police said Watts tried to drive away, dragging Cummins, who then shoots opens fire.

The shooting on Tuesday is being investigated by the HPD Special Investigations Unit, the Internal Affairs Division and the Harris County District Attorney's Office. Cummins is on paid administrative duties during the investigation, according to Houston Police Executive Assistant Chief Ban Tien.

For more updates on this story, follow Shannon Ryan on Facebook, Twitter and Instagram.

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Houston police officer who opened fire in Family Dollar parking lot also shot Mario Watts in separate 2021 incident, HPD confirms - KTRK-TV

ACLU of Ohio has tips on what protesters can and can't do during protests

How a grand jury works, why some are contentious

A previous version of this video generalized what occurs if a grand jury decides not to indict; jurisdictions have different protocols.

USA TODAY

Akron is preparing for protests as a special grand jury considers whether the eight police officers involved in the killing of Jayland Walker last summer should be charged.

"Let me say that every person in this country has a constitutional right to assemble and non-violently protest," Akron Police Chief Steve Mylett said in a video statement this week.

Mylett said the city is establishing a dedicated demonstration zone on South High Street that will be blocked to vehicular traffic as a safety measure. Akron PoliceSgt. Michael Murphy Jr.has been designated as the police liaison for protest groups and protest leaders.

The chief also referenced advice for protesters from the ACLU of Ohio on what protesters can and can't do, including what to do if theyre confronted by police officers or public officials during protests or if they're arrested.

Read below to see what the ACLU recommends.

Jayland Walker: Complete coverage of the Jayland Walker police shooting in Akron, Ohio

The ACLU of Ohio said that generally (and not specifically about Akron), challenges from law enforcement to the right to protest have come in many forms, including mass arrests, illegal use of force, curfews and corralling protesters into so-called free-speech zones, with new surveillance technologies increasingly being used to collect information on peoples activities by their association with or proximity to protests.

Even without active obstruction of the right to protest, fear of police intimidation can chill public expression and result in self-censorship, the ACLU said.

You have the First Amendment right to peacefully assemble to protest.

You can protest in public spaces (public forums), such as streets, sidewalks and parks, as long as you arent blocking traffic. If anticipating a group large enough to block pedestrian or car traffic, contact your municipal government for more information.

You can protest without a permit in response to recent events.

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Some events may require permits, like a march that will block traffic or close streets, a rally that uses amplifiers or group demonstrations at certain parks or plazas. If marchers stay on sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit. Marchers may be required to allow enough space on the sidewalk for normal pedestrian traffic and may not maliciously obstruct or detain passersby.

You have the right to distribute literature, chant, hold signs and engage passersby in debate in public spaces without a permit. You can approach pedestrians on public sidewalks with leaflets, newspapers, petitions and solicitations for donations without a permit, as long as entrances to buildings arent blocked and passersby arent physically and maliciously detained.

You can photograph, video or audio record the police in public spaces.

What you say to police or do can be used against you, and it can give the police an excuse to arrest you.

You are required to provide identifying information like your name, address or date of birth to a law enforcement officer upon request, but you don't need to show identification. You can be arrested for refusing to identify yourself to an officer.

Jayland Walker protests: What body-worn police video shows from July 6 protests over Jayland Walker shooting

You dont have to consent to a search of yourself or your car. Cell phones are protected by the Fourth Amendment, and police can't look at phone data or make you unlock your phone without a search warrant. Police can't view or seize property, including photos, videos, or devices, without a warrant, unless they make an arrest. Police can search someones belongings, home or other location, but generally mustobtain consent or a warrant from a judge. If a person is under arrest or there are dangerous circumstances, the police may pat down a person or look through their vehicle to search for a weapon. The ACLU said you should never consent to any search of yourself, your car, your cell phone or your house, as if you do consent, it can affect your rights later in court. If the police say they have a search warrant, ask to see it.

Police mayor can track protest planning on social media, including Facebook and Twitter, and track individuals using their cell phone location. No law prohibits police from lying, including posing as civilians in person or on social media.

Grand jury on police shooting: What to know about the process

The government can limit speech by imposing narrowly drawn time, place and manner restrictions. This is most commonly done by requiring permits for meetings, rallies and demonstrations; large groups using public parks; or limits on the loudness of sound amplifiers.

Your speech can't be restricted based on content, but the First Amendment doesnt protect speech that incites violence, is obscene or is threatening.

If you endanger others through the manner in which you protest, you can be arrested. A protest that blocks traffic generally requires a permit.

You don't have the right to block a building entrance or physically harass people.

Protesting on private property is not protected by the law. You can be arrested if trespassing. Private property owners can also set rules for speech on their property.

Dont interfere with, touch or verbally antagonize the police.

Avoid carrying any drugs or weapons. If you're arrested, you could face additional charges for their possession.

According to the ACLU, the constitution protects actions that symbolically express a viewpoint, like wearing masks and costumes or holding a candlelight vigil. But symbolic acts and civil disobedience that involve illegal conduct may be outside the realm of constitutional protections and can sometimes lead to arrest and conviction. Civil disobedience (violating the law to make a political statement) is not protected speech.

Generally, before making a mass arrest of demonstrators, police must issue a clear and easily heard order that tells everyone to leave the area and how to do so and give the demonstrators the chance to leave. At large demonstrations across the country, police have used less-lethal force against protestors, including sound amplifiers, Tasers, pepper spray, wooden or rubber bullets and physical violence.

Is Akron ready? With Jayland Walker grand jury decision coming, city prepares

To detain a person, the police must reasonably believe that person committed a crime.

Ask if youre free to leave. If yes, calmly and silently walk away.

If youre being arrested, dont run, argue, resist, obstruct or lie, even if you believe youre innocent, as it could result in more charges. Keep your hands where police can see them. State law prohibits going limp in police custody, and its classified as resisting arrest.

The ACLU said you also shouldnt touch any police officer, complain on the scene, tell the police they are wrong, say that you're going to file a complaint or lawsuit or make any statements regarding the incident, as well as think carefully about your words, movement, body language and emotions.

The whole process, from arrest to release on bail, should take about 24 to 36 hours.

The police will ask you for basic biographical information and will take your fingerprints and photograph unless you've been charged with a very minor crime.

You have the right to remain silent, but you must clearly tell the police officer that youre invoking it and then be silent. The ACLU said you should tell the police nothing except your name, address and date of birth, if requested, and dont give any explanations, excuses or stories. Ask for a lawyer immediately upon your arrest.

If you cant pay for a lawyer, you have a right to a free one, and should ask the police how a lawyer can be contacted. The ACLU recommends that you dont say anything, sign anything or make any decisions without a lawyer.

Within a reasonable time after your arrest or booking, you have the right to make a local phone call. The police can't listen to any calls made between you and a lawyer, but other phone calls could be recorded and what you say could potentially be used against you later in court.

Akron protests: Downtown Akron braces for more possible protests as grand jury reviews Jayland Walker case

If you feel your rights have been violated, write down everything you can remember, including officers badge and patrol car numbers, which agency the officers were from and any other details.Get contact information for witnesses.If youre injured, seek medical attention and take photographs of your injuries. File a written complaint with the agencys internal affairs division and civilian complaint board.

If you believe your rights have been violated, contact an attorney. Ohioresidents who believe their rights have been violated can report their concerns to ACLU of Ohio Attn: Intake Department, 4506 Chester Ave., Cleveland, OH 44103 or visit acluohio.org/resources/need-legal-help.

Jayland Walker police shooting: What we still don't know in the Akron police killing of Jayland Walker

Contact Beacon Journal reporter Emily Mills atemills@thebeaconjournal.comand on Twitter@EmilyMills818.

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Jayland Walker: What's legal and what's illegal during protests - Akron Beacon Journal

INDIANAPOLIS (WISH) Two officers from the Indianapolis Metropolitan Police Department have been indicted in their alleged roles in the April 25, 2022, in-custody death of Herman Whitfield III.

Prosecutor Ryan Mears announced today that a Marion County Grand Jury issued the indictments, according to a press release.

Adam Ahmad has been indicted on charges of involuntary manslaughter, reckless homicide, battery resulting in serious bodily, battery resulting in moderate injury and battery.

Steven Sanchez has been indicted on charges of two counts of Involuntary Manslaughter, Reckless Homicide, Battery Resulting in Serious Bodily Injury, Battery Resulting in Moderate Injury and Battery.

Officers arrived to find the man and his parents in the home. The father told officers that his son was having apsychosis. Officers called for an ambulance, as the father had requested, and began communicating with the son to prepare him for traveling in the ambulance.

According to court documents, Whitfields Fourth Amendment rights were violated when the officers needlessly tasered and then crushed the breath out of a man undergoing a mental health crisis, while callously ignoring his desperate repeated cries, I cant breathe.

On April 25 2022, Whitfields mother called 911 and asked for an ambulance to come to their home on Marrison Place and help her and her husband get mental health care for their son, court papers say.

The criminal cases will take place in Marion County Superior Court.

Earlier today, Chief Randal Taylor learned the grand jury decision regarding the death of Herman Whitfield III.Chief Taylor respects the grand jury process.

As with anyone under indictment, the officers should be considered innocent unless and until proven guilty in a court of law.

The officers involved, including those indicted, remain on paid administrative duty status while the internal process continues.

Mr. Whitfields death was a tragedy for all involved, and our thoughts continue to be with those impacted by his loss.

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IMPD officers indicted for death of Herman Whitfield III - WISH TV Indianapolis, IN