Whether the constitutionality of a policy prohibiting livestreaming during a lawful traffic stop should be analyzed under the First Amendment or the Fourth Amendment

No question identified. : To the Honorable John G. Roberts, Jr., Chief Justice of the Supreme Court of the United States and Circuit Justice for the Fourth Circuit: Pursuant to Supreme Court Rules 13.5, 22, and 30, Petitioners Winterville Police Department, William Blake Ellis, as sued in his official capacity, and Myers Parker Helms, IV, as sued in his official capacity (“Petitioners”), respectfully request a 60-day extension of time, up to and including Monday, September 18, 2023, within which to file a petition for a writ of certiorari to the United States Court of Appeals for the Fourth Circuit. 1. Petitioners will seek review of Sharpe v. Winterville Police Department et al., 59 F.4th 674 (4th Cir. 2023), a copy of which is attached as Exhibit A. The Fourth Circuit issued its opinion on February 7, 2023. Both Petitioners and Respondent filed timely petitions for rehearing en banc, which were denied by an order issued on April 21, 2023, a copy of which is attached as Exhibit B. 2. The time to file a petition for writ of certiorari will expire without an extension on Thursday, July 20, 2023. In accordance with Rule 13.5, this application is timely because it has been filed more than 10 days in advance of that date, and no prior application has been made by Petitioners in this case. This Court’s jurisdiction will be invoked under 28 U.S.C. § 1254(1). 3. This case presents a substantial and important question of constitutional interpretation: whether the constitutionality of a policy prohibiting livestreaming during a lawful traffic stop should be analyzed under the First Amendment or the Fourth Amendment. 4. In the underlying litigation, Dijon Sharpe brought a claim against Petitioners under 42 U.S.C. § 19838, alleging that the Town of Winterville Police Department had an unconstitutional policy, custom, or practice of preventing citizens from recording and livestreaming their interactions with police officers in the public performance of their duties. Sharpe alleged a First Amendment right to record, and specifically, to livestream, police during the public performance of their duties. 5. Below, Fourth Circuit held that “Sharpe plausibly alleges that the Town of Winterville has a policy preventing someone in a stopped vehicle from livestreaming their traffic stop[]” and that if such a policy does exist, it reaches protected speech. Sharpe v. Winterville Police Dep’t, 59 F.4th 674, 679 (4th Cir. 2023). The majority of the panel further held that Sharpe plausibly alleges that such a policy should be evaluated under the First Amendment and potentially constitutes a violation of the First Amendment. Jd. In a concurring opinion, Circuit Judge Niemeyer proposed that Fourth Circuit should have framed the issues in this case in the context of the Fourth Amendment, rather than the First Amendment, and that the important question is “whether, during a lawful traffic stop, law enforcement officers may lawfully prohibit the person detained from conducting electronic communications with others.” Jd. at 688. Because the alleged restriction took place within the context of a lawful Fourth Amendment seizure, Judge Niemeyer submitted that a Fourth Amendment reasonableness test should apply. Id. 6. The decision entered below and the concurrence by Judge Niemeyer raise an important and unresolved question about whether a First Amendment or Fourth Amendment framework should be used to analyze the constitutionality of prohibitions on livestreaming during a lawful traffic stop. The majority’s decision ignored important Supreme Court precedent. While activity undertaken by law enforcement during a lawfully initiated traffic stop may implicate other provisions of the federal constitution, such as the First Amendment, it is the Fourth Amendment reasonableness analysis that this Court has historically applied to determine the constitutionality of such activity. See, e.g., Navarette v. California, 572 U.S. 393 (2014); Arizona v. Johnson, 555 U.S. 3