Supreme Court of the United States

Transcription

1 Team 816 No IN THE Supreme Court of the United States BRYAN LOCKTE, v. Petitioner, MICHAEL FRANKLIN. Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourteenth Circuit BRIEF FOR RESPONDENT Counsel for Respondent *Counsel of Record

2 QUESTIONS PRESENTED FOR REVIEW 1. Did the Fourteenth Circuit properly hold that Franklin made out a violation of his First Amendment rights when Lockte arrested him for recording an officer performing his duties in a public forum, and that Franklin s right to do so was clearly established at the time of the violation? 2. Did the Fourteenth Circuit properly hold that Franklin made out a violation of his Fourth Amendment rights when Lockte searched his smartphone incident to arrest, and that Franklin s right to be free of such a search was clearly established at the time of the violation? i

3 TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... v OPINION BELOW... 1 CONSTITUTIONAL PROVISIONS INVOLVED... 1 STATEMENT OF THE CASE... 2 SUMMARY OF THE ARGUMENT... 2 ARGUMENT I. Qualified Immunity Is Improper Because Petitioner Violated Respondent s Clearly Established First Amendment Right To Peacefully Record A Law Enforcement Officer Performing His Or Her Duties In A Public Forum A. Petitioner Violated Respondent s First Amendment Right To Peacefully Record A Law Enforcement Officer Performing His Or Her Duties In A Public Forum Because Respondent s Right to Record Was Not Subject To Any Valid Restrictions Principles Of Free Speech, As Laid Out In First Amendment Jurisprudence, Establish A Constitutional Right To Peacefully Record Law Enforcement Officers Performing Their Duties In A Public Forum Petitioner Violated Respondent s First Amendment Right To Record When He Arrested Him Because Respondent s Recording Did Not Present A Clear And Present Danger Nor Was Respondent Subject To Any Reasonable Time, Place, and Manner Restrictions ii

4 B. Respondent s First Amendment Right To Peacefully Record A Law Enforcement Officer Performing His Or Her Duties In A Public Forum Is Clearly Established Because It Is Sufficiently Defined In Case Law And A Reasonable Officer Under The Circumstances Would Have Understood Petitioner s Actions To Violate That Right Respondent s First Amendment Right Is Sufficiently Defined In Case Law Because It Has Been Recognized Or Suggested By Four Courts Of Appeals And Any Contrary Authority Is Either Factually Distinct Or Unpublished A Reasonable Officer Under The Circumstances Would Have Understood Petitioner s Actions To Violate Respondent s First Amendment Right Because Extensive Case Law Provided Clear Boundaries To Respondent s Right And The Facts Available At The Time Did Not Support The Assumption That Franklin s Recording Constituted A Clear And Present Danger II. Petitioner s Warrantless Search Of Respondent s Smartphone Violated His Fourth Amendment Rights Because The Chimel Rationales Were Absent, And Gant Clearly Establishes That These Rationales Must Be Present In All Searches Incident To Arrest A. Petitioner Violated Respondent s Fourth Amendment Rights When He Searched The Contents of His Smartphone Without A Warrant Because The Search Was Not Motivated By Concerns For Officer Safety Or Evidence Preservation Search Incident Doctrine Has Developed Such That Lower Courts Have Applied The Exception Inconsistent With Clearly Established Chimel Rationales a. Officers Can Search Containers Within An Arrestee s Immediate Control, But Smartphones Are Not Containers b. Officers Can Search Arrestees Automobiles, But The Search Incident Exception Applies Differently To Automobiles Than Smartphones Because Of Differing Privacy Expectations iii

5 2. Recognizing Chimel As The Governing Standard For Warrantless Searches Of Smartphones Incident To Arrest Will Provide Bright-Line Guidance To Law Enforcement And Courts While Comporting With Original Fourth Amendment Search Incident Principles Petitioner Violated Respondent s Fourth Amendment Rights By Searching Respondent s Smartphone In The Absence Of Chimel Rationales a. The Search Was Not Motivated By Officer Safety b. The Search Was Not Motivated By The Need To Preserve Evidence B. Qualified Immunity Should Not Apply To Respondent s Fourth Amendment Claim Because Respondent s Rights Were Clearly Established At The Time Of His Arrest Gant Clearly Established That Chimel Applies To All Searches Incident To Arrest, Including Smartphones Even If This Court Finds That Gant Does Not Clearly Establish That Chimel Rationales Must Be Present, It Should Recognize A Limited Exception To The Qualified Immunity Doctrine When Litigants Facilitate The Development Of The Law CONCLUSION iv

6 TABLE OF AUTHORITIES United States Supreme Court Cases Anderson v. Creighton, 483 U.S. 635 (1987) , 22, 39 Arizona v. Gant, 556 U.S. 332 (2009) , 30, 33, 36, 40 Ashcroft v. al-kidd, 563, U.S., 131 S. Ct (2011).... 6, 16, 17, 18, 39 Branzburg v. Hayes, 408 U.S. 665 (1972) Cady v. Dombrowski, 413 U.S. 433 (1973) Cardwell v. Lewis, 417 U.S. 583 (1974) Chimel v. California, 395 U.S. 752 (1969) , 26, 36 City of Houston v. Hill, 482 U.S. 451 (1987).... 9, 12, 13 Conn v. Gabbert, 526 U.S. 286 (1999) Davis v. United States, U.S., 131 S. Ct (2011) First Nat l Bank of Bos. v. Bellotti, 435 U.S. 765 (1978).... 8, 9 Gentile v. Nevada, 501 U.S (1991).... 9, 11 Harlow v. Fitzgerald, 457 U.S. 800 (1982) Hope v. Pelzer, 536 U.S. 730 (2002) , 18, 22, 40 Katz v. United States, 389 U.S. 347 (1967) , 34 Kyllo v. United States, 533 U.S. 27 (2001) Lewis v. City of New Orleans, 415 U.S. 130 (1974) Mills v. Alabama, 384 U.S. 214 (1966) New York Times Co. v. Sullivan, 376 U.S. 254 (1964).... 9, 13 New York v. Belton, 453 U.S. 454 (1981) , 28, 29, 32 Pearson v. Callahan, 555 U.S. 223 (2009).... 6, 7 Perry Educ. Ass n v. Perry Local Educator s Ass n, 460 U.S. 37 (1983) , 14 Stanley v. Georgia, 394 U.S. 557 (1969).... 8, 9 Steagald v. United States, 451 U.S. 204 (1981) Terminiello v. City of Chicago, 337 U.S. 1 (1949) , 13 Thornton v. United States, 541 U.S. 615 (2004) , 30, 32, 36, 38 United States v. Chadwick, 433 U.S. 1 (1977) , 30 United States v. Knotts, 460 U.S. 276 (1983) United States v. Robinson, 414 U.S. 218 (1973) , 28, 32, 36 Virginia v. Moore, 553 U.S. 164 (2008) Ward v. Rock Against Racism, 491 U.S. 781 (1989) , 14 Wilson v. Layne, 526 U.S. 603 (1999) , 18 United States Court of Appeals Cases Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583 (7th Cir. 2012) , 11, 19 Egolf v. Witmer, 526 F.3d 104 (3d Cir. 2008) Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) , 12, 14, 19, 21, 22 Gilles v. Davis, 427 F.3d 197 (3d Cir. 2005) , 19, 23 Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) v

7 Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009) Newman v. Massachusetts, 884 F.2d 19 (1st Cir. 1989) , 22 Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000) , 19 Szymecki v. Houck, 353 F. App x. 852 (4th Cir. 2009) United States v. Finley, 477 F.3d 250 (5th Cir. 2007) , 28 United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012) , 31, 35, 36, 37 United States v. Shakir, 616 F.3d 315 (3d Cir. 2010) United States District Court Cases Connell v. Town of Hudson, 733 F. Supp. 465 (D.N.H. 1990) , 23 Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82 (D. Mass. 2002) Gravolet v. Tassin, 2009 WL (E.D. La. June 2, 2009) Jones v. Gaydula, 1989 WL (W.D. Pa. Dec. 22, 1989) Matheny v. County of Allegheny, 2010 WL (W.D. Pa. Mar. 16, 2010) Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504 (D.N.J. 2006) , 23 Robinson v. Fetterman, 378 F. Supp. 2d 534 (E.D. Pa. 2005) , 19 Schlossberg v. Solesbee, 844 F. Supp. 2d 1165 (D. Or. 2012) , 31, 35, 36 United States v. Deans, 549 F.Supp.2d 1085 (D. Minn.2008) United States v. McGhee, 2009 WL (D. Neb. July 21, 2009) United States v. Park, 2007 WL (N.D. Cal. 2007) , 35, 38 United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009) State Court Cases State v. Nix, 237 P.3d 842 (Or. Ct. App. 2010) State v. Smith, 920 N.E.2d 949 (Ohio 2009) , 31, 35 United States Statutes FED R. EVID Secondary Authorities Orin S. Kerr, Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, 2011 CATO SUP. CT. REV , 42 Miscellaneous Sources Rex Farrance, Timeline: 50 Years of Hard Drives, PCWORLD (Sep. 13, 2006), 29 vi

8 OPINION BELOW The decision of the United States Court of Appeals for the Fourteenth Circuit finding that Petitioner is not entitled to qualified immunity from Respondent s First and Fourth Amendment claims is reprinted in the record. (R. at ) CONSTITUTIONAL PROVISIONS INVOLVED The First Amendment to the United States Constitution, in pertinent part, provides that: Congress shall make no law... abridging freedom of speech[.] U.S. CONST. amend. I. The Fourth Amendment to the United States Constitution, in pertinent part, provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.] U.S. CONST. amend. IV. 1

9 STATEMENT OF THE CASE Beginning in early September 2011 and throughout the next several weeks, large numbers of activists converged on the City of New London s Hide Park to protest rising inequality in the city. (R. at 2.) Shortly after the protest began, New London Police Department (NLPD) Officer Matthew Phelps infiltrated the Hide Park protest in order to provide NLPD with intelligence to facilitate timely responses to protest developments. (R. at 4.) Phelps quickly ascended to a leadership position and was often videotaped giving speeches and directing protesters. (R. at 4 5.) NLPD Officer Bryan Lockte (Petitioner) was assigned to monitor and protect Phelps. (R. at 4.) On September 28, 2011, Lockte observed protester Michael Franklin (Respondent) using his smartphone to record Phelps conversing with a uniformed NLPD officer. (R. at 4 5.) Lockte feared that Franklin would post the video to a website called 99percent.com and expose Phelps as an undercover officer. (R. at 2.) He maintained that the video, if posted, had the potential to incite violence. (R. at 5.) Throughout the protest, including before Franklin s arrest, protestors had been recording and posting videos and other protest information on 99percent.com. (R. at 4.) None of these videos or postings had caused any incident and, as of September 28, 2011, NLPD had maintained a cooperative relationship with the protestors without incident or arrest. (R. at 5.) 2

10 Despite previous widespread non-disruptive recording, Lockte approached Franklin and asked whether he had received permission to record the conversation. (R. at 5.) Franklin responded by asserting his right to record in the public park and noted that Phelps had been recorded frequently without challenge over the last several weeks. (R. at 5.) Lockte then asked Franklin to refrain from recording Phelps, at which point Franklin realized that Phelps was in fact an undercover officer. (R. at 5.) Lockte seized Franklin s smartphone to prevent him from posting the video to the 99percent.com. (R. at 5.) Lockte, unsure of whether Franklin had posted the video, searched the smartphone s video application and discovered that he had not. (R. at 5 6.) Lockte then placed Franklin under arrest for violating the City of New London s wiretapping law. (R. at 6.) The District Attorney later dropped the charges against Franklin. (R. at 3.) Franklin sued Lockte in the United States District Court for the District of New London, pursuant to 42 U.S.C. 1983, for violating his First and Fourth Amendment rights. (R. at 4.) Lockte moved for summary judgment, claiming that he was entitled to qualified immunity because he did not violate Franklin s constitutional rights, or in the alternative, that those rights were not clearly established at the time of the arrest. (R. at 6.) The District Court granted Lockte s motion and dismissed the case. (R. at 13.) Franklin appealed. (R. at ) The United States Court of Appeals for the Fourteenth Circuit reversed, finding that Lockte violated Franklin s constitutional rights and that immunity did not apply because those rights were clearly established. (R. at 22.) 3

11 SUMMARY OF THE ARGUMENT This Court should affirm the Fourteenth Circuit s decision that Petitioner is not entitled to qualified immunity because he violated Respondent s clearly established First and Fourth Amendment rights. First, Petitioner is not entitled to qualified immunity from Respondent s First Amendment claim because, at the time of his arrest, Respondent had a clearly established right to peacefully record a law enforcement officer performing his or her duties in a public forum. This Court s extensive First Amendment jurisprudence clearly indicates that Respondent possessed a constitutional right to record Officer Phelps under such circumstances, provided that he did not violate any valid restrictions. Because Respondent was filming an on-duty law enforcement officer in a public forum, he may have been subject to two types of restrictions: those reasonable time, manner, and place restrictions proper in a public forum, or, limitations to prevent a clear and present danger. Respondent s recording was not subject to either type of limitations because non-disruptive recording in a public forum is not reasonably subject to typical public forum restrictions and Respondent s recording did not create a clear and present danger in light of the protest s consistent peacefulness. Furthermore, Respondent s right to record Officer Phelps was clearly established because it was sufficiently defined in case law at the time of his arrest and the circumstances were such that any reasonable officer would have been aware of his right. The right to peacefully record an on-duty officer in a public forum has 4

12 been explicitly recognized or suggested by four Courts of Appeals in addition to numerous district courts. When juxtaposed with the weak case law dismissing the right to record, an officer under the circumstances would have recognized that Respondent s recording did not present any danger or lie outside the right as defined in the strong supporting case law. Second, Petitioner is not entitled to qualified immunity from Respondent s Fourth Amendment claim because Petitioner violated his clearly established rights when he conducted a warrantless search of the contents of his smartphone, unmotivated by concerns for officer safety or evidence preservation. Under Arizona v. Gant and Chimel v. California, these rationales must be present in all searches incident to an arrest. Any expansion of the search incident exception beyond Chimel would be inappropriate in this context because individuals have a heightened expectation of privacy in their smartphones. Moreover, Chimel provides a bright-line standard that can be easily applied and predictably enforced by law enforcement. Although this Court has never directly addressed warrantless searches of smartphones, Respondent s right was clearly established by Gant, which reaffirms that Chimel is fundamental and continues to define the boundaries of the search incident exception. Even if this Court determines that the Chimel rationales were not clearly established in this context, it should recognize an exception to the qualified immunity doctrine, which would encourage the litigation and development of Fourth Amendment law. 5

13 ARGUMENT Petitioner alleges that the U.S. Court of Appeals for the Fourteenth Circuit erred when it denied him qualified immunity from Respondent s suit seeking redress for his violation of Respondent s First and Fourth Amendment rights. The purpose of qualified immunity is to balance the need for public accountability of those who wield the power of the State with the need to protect those who reasonably perform their duties. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Therefore, a public official is protected from civil liability unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct. Ashcroft v. al-kidd, 563 U.S., 131 S.Ct. 2074, 2080 (2011) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (emphasis added). As will be demonstrated below, Petitioner is not entitled to qualified immunity from either Respondent s First or Fourth Amendment claims. I. Qualified Immunity Is Improper Because Petitioner Violated Respondent s Clearly Established First Amendment Right To Peacefully Record A Law Enforcement Officer Performing His Or Her Duties In A Public Forum. Petitioner is not entitled to qualified immunity from Respondent s suit alleging that he violated his First Amendment rights. As discussed above, qualified immunity is improper if a law enforcement officer violates a clearly established constitutional right. Here, Petitioner is precluded from qualified immunity for two reasons. First, when Petitioner arrested Respondent, he violated Respondent s constitutional right 6

14 to peacefully record a law enforcement officer performing his or her duties in a public forum. Second, Respondent s right was clearly established at the time of arrest because First Amendment case law had sufficiently defined the boundaries of the right such that any reasonable officer would have understood Petitioner s actions to be constitutionally protected. A. Petitioner Violated Respondent s First Amendment Right To Peacefully Record A Law Enforcement Officer Performing His Or Her Duties In A Public Forum Because Respondent s Right to Record Was Not Subject To Any Valid Restrictions. Respondent s arrest directly interfered with his right to record law enforcement officers performing their duties in a public forum and, therefore, Petitioner s actions violated the First Amendment. The purpose of the first prong of the qualified immunity analysis is to protect government officials from lawsuits alleging non-existent violations of allegedly constitutional rights. See Pearson, 555 U.S. at 231 (stating that qualified immunity functions to shield officials from harassment, distraction, and liability when they perform their duties reasonably ). As such, Respondent must demonstrate both that he possessed a constitutional right and that Petitioner s actions violated that right. Id. at 232 ( First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. ). 7

15 1. Principles Of Free Speech, As Laid Out In First Amendment Jurisprudence, Establish A Constitutional Right To Peacefully Record Law Enforcement Officers Performing Their Duties In A Public Forum. Although not explicitly referenced in the text of the First Amendment, free speech jurisprudence establishes a constitutional right to peacefully record law enforcement officers while performing their duties in a public forum. The First Amendment s protection of the right to free expression is stated in broad and unequivocal terms: Congress shall make no law... abridging the freedom of speech, or of the press. U.S. CONST. amend. I. This Court has consistently affirmed our nation s commitment to the First Amendment by articulating several principles that establish a constitutional right to peacefully record law enforcement officers while performing their duties in a public forum. First, the First Amendment rights of private citizens are coextensive with those of the organized press because [neither has] a monopoly on... the ability to enlighten. First Nat. Bank of Bos. v. Bellotti, 435 U.S. 765, 782 (1978). This principle recognizes that public discourse is elevated when speech and ideas, regardless of their source, are openly debated and discussed. See, e.g., Stanley v. Georgia, 394 U.S. 557, 563 (1969) ( [The] right to receive information and ideas, regardless of their social worth, is fundamental to our free society. ). Therefore, the First Amendment protects access to and the reporting of information by the press and public on an equal basis. See, e.g., Branzburg v. Hayes, 408 U.S. 665, 684 (1972) ( [T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally. ). 8

16 Second, in order to foster an environment ripe for public discussion, freedom of speech necessarily includes the right to receive diverse ideas. See Stanley, 394 U.S. at 563 ( It is now well established that the Constitution protects the right to receive information and ideas.... ). To ensure access to the full spectrum of viewpoints, the First Amendment... prohibit[s the] government from limiting the stock of information from which members of the public may draw. Bellotti, 435 U.S. at 783. Third, the First Amendment is particularly concerned with guaranteeing open discussion of governance-related matters because [s]uppression of the right [to] praise or criticize governmental agents... muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free. Mills v. Alabama, 384 U.S. 214, 218 (1966). Such speech lies at the core of the First Amendment. E.g., Gentile v. Nevada, 501 U.S. 1030, 1034 (1991). This protection of vibrant civic debate extends beyond pleasantries and includes vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). As government officials, law enforcement officers may be subject to this heightened, but constitutionally protected, speech. See City of Houston v. Hill, 482 U.S. 451, (1987) ( The freedom of individuals verbally to oppose or challenge police action... is one of the principal characteristics by which we distinguish a free nation from a police state. ). It is undeniable that such speech brings unique 9

17 challenges and dangers; however, so long as it does not produce a clear and present danger of a serious substantive evil, it retains First Amendment protection. Id. at 461 (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)). Finally, First Amendment precedent indicates heightened protection for speech in any areas which by long tradition or by government fiat have been devoted to assembly and debate. Perry Educ. Ass n v. Perry Local Educator s Ass n, 460 U.S. 37, 45 (1983). In such a public forum[,]... the rights of the state to limit expressive activity are sharply circumscribed. Id. However, so long as any limitation is content neutral, the government may impose reasonable time, place, or manner restrictions. E.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). These general principles indicate that the First Amendment clearly and unambiguously protects the right to peacefully record law enforcement officers while performing their duties in a public forum. The proliferation of recording devices, such as smartphones, can assist in ensuring that all individuals, in addition to the established press, can actively contribute to civic debate. See Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (stressing that greater access to recording technology creates a level playing field for any and all reporters, professional or otherwise). Video and other electronic recording is uniquely suited to facilitate highly reliable information gathering and dissemination in the service of this First Amendment interest. Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 595, 10

18 607 (7th Cir. 2012). Therefore, recording ensures, as stressed in Bellotti, the First Amendment right to receive diverse ideas. In addition, recording is itself expressive conduct such that it falls within the First Amendment s protection. See id. at 595 ( The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.... ); Gilles v. Davis, 427 F.3d 197, 212 n.14 (3d Cir. 2005) ( [P]hotography or videography that has a communicative or expressive purpose enjoys some First Amendment protection. ). Any arbitrary limitation imposed on recording could constitute a First Amendment violation if the recording itself was intended as a mode of self-expression or if it places an illegitimate burden on the sharing of ideas. See, e.g., Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) (stating that any restriction imposed on an individual who sought to video record officer conduct would clearly amount[] to an unlawful prior restraint upon [the individual s] protected speech ). Furthermore, constitutional protection of the recording of law enforcement conduct is consistent with the specific protection of speech related to civic matters. See Gentile, 501 U.S. at 1035 ( Public awareness and criticism have even greater importance where... they concern allegations of police corruption.... ). In a recent case affirming the right to peacefully record officers, the First Circuit opined that the gathering and dissemination of information concerning government officials lies at the heart of the First Amendment particularly [with regard to] law enforcement officials, who are granted substantial discretion that may be used to 11

19 deprive individuals of their liberties. Glik, 655 F.3d at 82. So long as such recording does not create a clear and present danger, it is within the boundaries of the First Amendment s protection. See Hill, 482 U.S. at 461 (stating that speech directed at law enforcement is protected so long as it does not create a clear and present danger ). Finally, although it is not Respondent s position that First Amendment recording is necessarily limited to such locations, protection of the recording of onduty officers in public fora is reinforced by, as highlighted in Rock Against Racism and Perry Education Association, the presumption against content-based restrictions in those areas. Therefore, as with limitations intended to prevent a clear and present danger, the recording of officers in a public forum may be subject to content-neutral time, place, and manner restrictions. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (finding that the First Amendment protects the right to record law enforcement officers on public property subject to reasonable time, manner, and place restrictions). Precedent from this Court, as well as others, establishes that recording facilitates access to information and constitutes expressive conduct such that it is accorded constitutional protection. Furthermore, the recording of law enforcement officers in a public forum renders it subject to only limited restrictions; namely, content-neutral time, manner, and place limitations and those necessary to prevent a clear and present danger. Accordingly, the First Amendment protects the right 12

20 of individuals to peacefully record law enforcement officers while performing their duties in a public forum. 2. Petitioner Violated Respondent s First Amendment Right To Record When He Arrested Him Because Respondent s Recording Did Not Present A Clear And Present Danger Nor Was Respondent Subject To Any Reasonable Time, Place, and Manner Restrictions. Petitioner s arrest of Respondent, and intervention in posting of the video, violated the First Amendment by directly interfering with Respondent s right to record and disseminate information. In exercising Respondent s right to record, the location, context, and focus of his filming rendered it subject to two types of potentially valid limitations. First, as First Amendment conduct directed at law enforcement officers, it was subject to restriction only if it constituted a clear and present danger of the obstruction of justice. Sullivan, 376 U.S. at 273. Second, so long as Respondent s recording took place in a public forum, he may have been subject to reasonable time, manner, and place restrictions. With regard to the first limitation, any disruption used to justify a restriction on First Amendment rights under such circumstances must rise[] far above public inconvenience, annoyance, or unrest. Hill, 482 U.S. at 461 (quoting Terminiello, 337 U.S. at 4). This Court has repeatedly held that laws intended to prevent disruption of police activities, which do not limit their applicability to expression likely to cause a disturbance of the peace, violate the First Amendment. E.g., id. at 462; Lewis v. City of New Orleans, 415 U.S. 130, 133 (1974). Accordingly, an arrest 13

21 for recording under an otherwise neutral statute, which does not produce a danger of imminent harm beyond mere civil discontent, is similarly illegitimate. See Glik, 655 F.3d at 84 ( The same restraint demanded of law enforcement officers in the face of provocative and challenging speech... must be expected when they are merely the subject of video recording that memorializes, without impairing, their work in public spaces. (citations omitted)). As for the second limitation, a public park is well established as an archetypical public forum. Perry Educ. Ass n, 460 U.S. at 45; see, e.g., Rock Against Racism, 491 U.S. at (finding that a bandshell located in a public park was a public forum). Therefore, recording in a public park may only be limited by contentneutral time, manner, and place restrictions that are narrowly tailored to a significant government interest. Perry Educ. Ass n, 460 U.S. at 45. However, if recording is both peaceful and non-disruptive, any such imposed restrictions will likely not meet this level of scrutiny. See Glik, 655 F.3d at 84 (finding that peaceful, non-disruptive recording of police officers in a public park is not reasonably subject to time, place, or manner restrictions). Here, Respondent s recording, although directed at law enforcement officials, did not create any clear and present danger. Although Petitioner stated that he believed that the protest might grow violent if Respondent were allowed to record and post the video of Officer Phelps, his belief was not based on the conditions at the Hide Park protest. At the time of Respondent s arrest, the protest at Hide Park had remained peaceful for nearly a month with no arrests for any reason 14

22 whatsoever. The NLPD had maintained a respectful relationship with the protestors and, for all intents and purposes, kept the protest successfully under control for its entire duration. Equally, protestors had been sharing information and videos on the 99percent.com throughout this time. There is simply no support for the assumption that this recording was particularly likely to cause any additional disturbance, in light of the protest s relative peacefulness and longstanding cooperation between the parties. There is also no indication in the record that Respondent had violated any time, manner, or place restrictions placed on those recording the protests in Hide Park. The record is clear that individuals had been recording the protests, as well as Officer Phelps in his undercover role as a protest leader, for nearly a month. The record is also clear that no arrests had taken place prior to the Respondent s, indicating that no such time, manner, or place restrictions had been imposed or violated in the course of prior recording. Furthermore, any argument that Respondent was subject to time, manner, or place restrictions lies on shaky ground because, as in Glik, neither Respondent s actions, nor the protest as a whole, interfered with the NLPD s ability to perform their duties and maintain order. The facts, as pled by Respondent, strongly indicate that Petitioner violated Respondent s First Amendment right to peacefully record an on-duty law enforcement officer in a public forum. There is nothing in the record to suggest that Respondent s recording presented a clear and present danger or was subject to any legitimate time, place, or manner restrictions. As such, Petitioner is not entitled to 15

23 qualified immunity if Respondent s right to record Officer Phelps was clearly established at the time of his arrest. B. Respondent s First Amendment Right To Peacefully Record A Law Enforcement Officer Performing His Or Her Duties In A Public Forum Is Clearly Established Because It Is Sufficiently Defined In Case Law And A Reasonable Officer Under The Circumstances Would Have Understood Petitioner s Actions To Violate That Right. The First Amendment right to peacefully record law enforcement officers performing their duties in a public forum is clearly established because it is grounded in extensive case law with little persuasive authority to the contrary. Given this strong support and these factual circumstances, any reasonable officer would have understood Petitioner s actions to be unconstitutional. The purpose of the clearly established doctrine is to ensure that [t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). However, sufficient definition does not require that existing case law have addressed the specific factual circumstances so long as the law enforcement officer was reasonably on notice that his or her conduct was a constitutional violation. See al-kidd, 131 S.Ct. at 2083 ( We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. ). Novel factual circumstances may involve a clearly established right despite a lack of case law discussing application of the right in situations with fundamentally or materially similar facts. Hope v. Pelzer, 536 U.S. 730, 741 (2002). As such, clear establishment of a right is assessed 16

24 in light of the doctrine s purpose, and not the presence of factually identical case law. Therefore, a clearly established constitutional right is one that is both (1) sufficiently defined in the relevant law and (2) apparent to a reasonable law enforcement official under the circumstances. 1. Respondent s First Amendment Right Is Sufficiently Defined In Case Law Because It Has Been Recognized Or Suggested By Four Courts Of Appeals And Any Contrary Authority Is Either Factually Distinct Or Unpublished. Respondent s First Amendment right to record is sufficiently defined because two Courts of Appeal have explicitly recognized it, with two additional Courts of Appeal and numerous district courts strongly suggesting constitutional protection. Furthermore, any contrary case law is either factually distinct or non-precedential such that it does not detract from the right s extensive recognition. This Court has continuously stressed that the boundaries of constitutional protection must be well drawn for a right to be clearly established. See al-kidd, 131 S.Ct. at 2084 ( We have repeatedly told courts... not to define clearly established law at a high level of generality. (internal citations omitted)); Wilson v. Layne, 526 U.S. 603, 615 (1999) ( [T]he right allegedly violated must be defined at the appropriate level of specificity.... ). This emphasis on specificity has manifested in consideration of two factors when determining the sufficiency of a right s definition. First, there must be a strength and quantity of case law recognizing the right, and second, the presence of any contrary case law must not detract from the clarity of the right as defined in supporting cases. 17

25 This Court s qualified immunity jurisprudence establishes the outer bounds of the adequacy analysis. At one end, an asserted right not supported by any case law explicitly holding the right constitutionally-protected, is not clearly established. See al-kidd, 131 S.Ct. at (holding that a lack of any authority finding a Fourth Amendment right to be free from pre-textual arrest is insufficient). Equally, exclusive reliance on non-binding, unpublished case law is also insufficient, even if such a right exists. See Wilson, 526 U.S. at 616 (finding a Fourth Amendment violation not clearly established because it was only identified in two prior unpublished district court decisions). At the other end, a right recognized in binding authority, as well as by other branches of state and federal government is sufficiently defined. See Hope, 536 U.S. at (finding that an Eighth Amendment violation was clearly established because circuit-level precedent, a state regulation, and a federal report recognized it as such). Between these two poles, there is little in terms of bright-line rules. Case law detracting from the right asserted may complicate matters but does not necessarily preclude sufficient definition. For example, the First Circuit has held that the due process right of public employees to be free from arbitrary employment decisions was clearly established, despite a lack of unanimity in the circuit courts and the Supreme Court s repeated side-stepping of the issue. Newman v. Massachusetts, 884 F.2d 19, 25 (1st Cir. 1989). In so holding, it concluded as sufficient that most circuits to have considered the issue either explicitly accepted or suggested the right s existence. Id. Additionally, the wariness of unpublished decisions equally 18

26 applies with regard to contrary law, and therefore, should not detract from any published law defining a constitutional right. See Glik, 655 F.3d at 85 (stating that contrary unpublished case law has no precedential value in establishing a lack of a right to record officers while in the line of duty). The First and Eleventh Circuits have explicitly held that there is a First Amendment right to peacefully record law enforcement officers performing their duties in a public forum. See id. at 78 (recognizing a right to record police officers carrying out their duties in public); Smith, 212 F.3d at 1333 (acknowledging a right to record police conduct in a public forum, subject to reasonable restrictions). The Third and Seventh Circuits have also strongly indicated their support for the right in similar, albeit factually distinct, cases. See Alvarez, 679 F.3d at 600 (finding that an eavesdropping statute that would prohibit the recording of law enforcement officers would violate First Amendment rights); Gilles, 427 F.3d at 212 n.14 (stating that videotaping or photographing the police in the performance of their duties on public property may be protected activity such that qualified immunity would likely not apply). Furthermore, this circuit-level precedent is bolstered by numerous lower court decisions that firmly support a First Amendment right to document the work of public officials, including law enforcement officers. See, e.g., Pomykacz v. Borough of West Wildwood, 438 F. Supp. 2d 504, 513 n.14 (D.N.J. 2006) (suggesting, at minimum, a right to engage in political activism by recording law enforcement officers and public officials); Robinson, 378 F. Supp. 2d at 541 (stating that police 19

27 activities are subject to public scrutiny and that a citizen need not assert any particular reason for recording); Demarest v. Athol/Orange Cmty. Television, Inc., 188 F. Supp. 2d 82, (D. Mass. 2002) (finding it highly probable that videotaping an unwilling public official while on public property is constitutionally protected); Connell v. Town of Hudson, 733 F. Supp. 465, 470 (D.N.H. 1990) (finding non-disruptive photographing of officers at an accident scene protected by the First Amendment). This extensive case law is juxtaposed with a weak array of unpublished and factually distinguishable decisions. The Fourth Circuit is the sole Court of Appeals to explicitly reject a First Amendment right to record police activities on public property; however, it did so in an unpublished case with little precedential authority. Szymecki v. Houck, 353 F. App x. 852, 853 (4th Cir. 2009). A single district court is the only other federal court to hold similarly in yet another unpublished decision. See Matheny v. County of Allegheny, 2010 WL , at *6 (W.D. Pa. Mar. 16, 2010) (finding that the right to record police officers in the performance of their official duties was not clearly established). Petitioner may cite the Third and Ninth Circuits decisions in Kelly v. Borough of Carlisle and Fordyce v. City of Seattle, respectively, as rejections of the First Amendment right to record. Petitioner s reliance is erroneous. While Fordyce rejected a clearly established right to record conversations on public streets, that case involved conversations between private individuals who had requested not to be taped. 55 F.3d 436, (9th Cir. 1995). Furthermore, Kelly dealt with the 20

28 videotaping of officers during a traffic stop, which the Third Circuit found to be an inherently dangerous situation inadequately addressed in existing case law. 622 F.3d 248, (3d Cir. 2010); see also Glik, 655 F.3d at 85 (distinguishing Kelly, because Glik did not involve an inherently dangerous situation such as a traffic stop). Finally, unlike the case law supporting Respondent s First Amendment right, any supplemental district court case law cited by Petitioner offers only vague and indirect support for his claim of qualified immunity. See, e.g., Gravolet v. Tassin, 2009 WL , at *4 (E.D. La. June 2, 2009) (refusing to find the right to record clearly established when the individual s taping constituted stalking); Jones v. Gaydula, 1989 WL , at *2 (W.D. Pa. Dec. 22, 1989) (denying the existence of a First Amendment right to tape record the statements of an unwilling utterant ). As with Szymecki and Matheny, these cases are unreported and have little, if any, precedential value. Respondent s First Amendment right to peacefully record law enforcement officers performing their duties in a public forum is sufficiently defined in precedent from two Courts of Appeals, which explicitly recognize constitutional protection. Furthermore, two additional Courts of Appeals and several district courts, strongly indicate existence of the right. Finally, any contrary authority is either sufficiently factually distinct or is unpublished such that it has limited precedential value and does not detract from supporting case law. 21

29 2. A Reasonable Officer Under The Circumstances Would Have Understood Petitioner s Actions To Violate Respondent s First Amendment Right Because Extensive Case Law Provided Clear Boundaries To Respondent s Right And The Facts Available At The Time Did Not Support The Assumption That Franklin s Recording Constituted A Clear And Present Danger. Any reasonable law enforcement officer in such circumstances would have understood Petitioner s actions to be unlawful because existing precedent provided clear contours to Respondent s right such that the officer would have been able to quickly identify the recording as constitutionally protected. A clearly established constitutional right, in addition to being sufficiently defined, must have been reasonably apparent to the officer at the time of the violation. See Anderson, 483 U.S. at 640 (emphasizing that the officer must have been on notice of the violation at the time of his conduct). Qualified immunity is improper if a reasonable officer would have recognized Petitioner s actions as unlawful, in light of the sufficiently defined law and information available at the time. See id. at 641 (defining the issue in that case using this formula). The purpose of this analysis is to determine whether the state of the law at the time of the alleged violation gave the [officer] fair warning that his particular conduct was unconstitutional. Glik, 655 F.3d at 81 (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). However, it is not necessary to establish that the officer was subjectively aware of any particular authority condemning his actions. Hope, 536 U.S. at 745. Rather, this prong is satisfied so long as any reasonable official would have been aware of such authority, and therefore, known of the constitutional violation. Id.; see also Newman, 884 F.2d at 22

30 26 ( Defendants are liable for damages only if they should have known that what they did violated the law. (emphasis in original)). In making the reasonableness determination, lower courts have stressed the quick judgments required of law enforcement officers on a daily basis. For example, in Egolf v. Witmer, the Third Circuit found that case law did not provide sufficient clarity when officers arrested individuals engaging in an Abu Ghraib reenactment along then-president George W. Bush s motorcade route. 526 F.3d 104, (3d Cir. 2008). The court emphasized the protest s quick escalation and unique circumstances, which made judgment difficult. Id.; see also Gilles, 427 F.3d at 206 (finding that the First Amendment right allegedly violated was, in part, not clearly established because there was little time to parse Gilles speech ). However, officers are reasonably expected to know the limits of their power. This is particularly true with regard to violations of First Amendment rights where lower courts have emphasized officer restraint. See, e.g., Pomykacz, 438 F. Supp. 2d at 515 (stating that a reasonable official would know that arrest in retaliation for exercising free speech would contravene clearly established rights); Connell, 733 F. Supp. at 471 (holding qualified immunity improper because an officer was reasonably expected to understand that the First Amendment protects photographing of an accident scene absent interference in police activities). The case law discussed above provides sufficient clarity as to the contours of the right such that any reasonable officer would have known Respondent s recording was protected. All of the case law accepting and supporting the right to 23

31 record existed at the time of Respondent s arrest, save Alvarez. When set against the extensive First Amendment jurisprudence discussed in Part I.A.1 and weak contrary case law discussed above, it is clear that there was sufficient wellestablished law to put an officer on notice of the right to record at that time. Accordingly, a reasonable officer would have known that Respondent s recording of Officer Phelps could be restricted only if it presented a clear and present danger. Any reasonable officer would have concluded that Respondent s actions, under the apparent facts, did not threaten the public peace in any significant or substantial way. The protest in Hide Park had remained peaceful and without incident for the entirety of its month-long duration. NLPD had worked successfully with the protestors to maintain order despite the fact that protestors had been recording and posting to 99percent.com for four weeks. That recording and posting had been a longstanding practice at the protest indicates that Petitioner s judgment to arrest Respondent was not the product of a snap decision. There was no indication or suggestion that danger was imminent, other than Petitioner s baseless assumptions about the connection between the Hide Park protest and those in other cities. In light of the protest s relative peacefulness, longstanding cooperation between the parties, and extensive prior recording and posting, it was simply unreasonable to arrest Respondent under a guise of clear and present danger. Furthermore, there is no indication in the record that Respondent had violated, or was even reasonably subject to, any time, manner, or place restrictions placed on 24

32 those recording the protests in Hide Park. Here, a reasonable law enforcement officer, acting under the circumstances and in light of the established law, would have known that arresting Respondent for filming Officer Phelps would violate his First Amendment right to peacefully record a law enforcement officer performing his or her duties in a public forum. For the aforementioned reasons, Petitioner is not entitled to qualified immunity from Respondent s First Amendment claim. II. Petitioner s Warrantless Search Of Respondent s Smartphone Violated His Fourth Amendment Rights Because The Chimel Rationales Were Absent, And Gant Clearly Establishes That These Rationales Must Be Present In All Searches Incident To Arrest. The Fourth Amendment provides, in relevant part, [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. U.S. CONST. amend. IV. Warrantless searches are presumptively unreasonable, subject to only a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357 (1967). One such exception is a search conducted incident to lawful arrest, which permits an officer to search an arrestee s person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 763 (1969). The search incident exception is premised on two fundamental rationales: protecting officer safety and safeguarding evidence. Id. These twin rationales ensure compliance with the Fourth Amendment s reasonableness requirement. Id. As this Court recognized in Chimel, searches incident to arrest 25

33 are reasonable in order to remove any weapons [the arrestee] might seek to use and to prevent [the] concealment or destruction of evidence. Id. Recently, in Arizona v. Gant, this Court made clear that Chimel continues to define the boundaries of the [search incident] exception. 556 U.S. 332, 339 (2009); see also United States v. Shakir, 616 F.3d 315, 318 (3d Cir. 2010) cert. denied, 131 S. Ct. 841 (2010) (instead interpreting Gant to require that the Chimel rationales apply to all searches incident to arrest). For the purposes of qualified immunity, Gant clearly establishes that the twin Chimel rationales be present in all searches incident to arrest. Because neither of these rationales was present in this case, Petitioner is not entitled to qualified immunity because he violated Respondent s clearly established Fourth Amendment rights when he searched the contents of his smartphone incident to arrest. A. Petitioner Violated Respondent s Fourth Amendment Rights When He Searched The Contents of His Smartphone Without A Warrant Because The Search Was Not Motivated By Concerns For Officer Safety Or Evidence Preservation. Since its inception in Chimel, the search incident exception has permitted officers to conduct warrantless searches of containers found on arrestees persons, within their immediate control, and inside of their automobiles. E.g., Thornton v. United States, 541 U.S. 615 (2004); New York v. Belton, 453 U.S. 454 (1981); United States v. Chadwick, 433 U.S. 1 (1977), United States v. Robinson, 414 U.S. 218 (1973). Despite this Court s best efforts to fashion a bright-line rule, it has been applied inconsistently by lower courts in the smartphone context. This Court should follow Gant and affirm that Chimel, and its underlying twin rationales, 26