No. 16-648 _______________________________________________________________________

In the Supreme Court of the United States

October Term, 2016

_______________________________________________________________________

HARRY PIPER,

Petitioner,

v.

LUNA LOCKWOOD,

Respondent.

On Petition for Discretionary Review From the United States Court of Appeals for the Thirteenth Circuit.

PETITIONER’S BRIEF ON THE MERITS

A

2

Table of Contents

TableofAuthorities.................................................................................................................................................3

StatementoftheCase.............................................................................................................................................5

IssuePresented.........................................................................................................................................................7

FactualBackground.................................................................................................................................................8

SummaryofArgument.........................................................................................................................................10

StandardofReview................................................................................................................................................11

Argument

I. THIS COURT SHOULD REVERSE THE THIRTEENTH CIRCUIT'S ORDER TO REMAND BECAUSE IN DETERMINING WHETHER A USE OF FORCE WAS EXCESSIVE, A COURT SHOULD ONLY CONSIDER THE FACTS AND CIRCUMSTANCE AT THE TIME OF THE USE OF FORCE. .................................................................................................................................. 11

A. OFFICER HARRY PIPER’S USE OF FORCE WAS REASONABLE

CONSIDERING THE FACTS AT THE MOMENT OF THE USE OF FORCE. .................. 14 B. WHETHER THE ARREST IS LAWFUL IS IRRELEVANT WHEN DETERMINING

WHETHER USE OF FORCE WAS EXCESSIVE. ................................................................ 15

II. THE COURT OF APPEALS SHOULD BE OVERTURNED BECAUSE CRAVEN GENERAL STATUTE § 15A-287 IS MERELY A TIME, PLACE, OR MANNER RESTRICTION AND HAS NO CHILLING EFFECT ON THE FIRST AMENDMENT BY NOT ALLOWING THE VIDEO RECORDING WITHOUT PRIOR AUTHORIZATION BY ALL PARTIES. ................................................................ 15

A. CRAVEN GEN. STAT § 15A-287 DOES NOT RESTRICT INDIVIDUALS

ABILITY TO RECEIVE INFORMATION IN A LEGAL MANNER BUT THAT PERMISSION BE GRANTED PRIOR TO FILMING. ........................................................... 16

B. THE IMPLICIT INTENT OF THE STATUTE IS TO PROTECT PRIVACY INTEREST OF INDIVIDUALS NOT TO BE FILMED. ........................................................ 18

C. PETITIONER DID NOT HAVE A LEGAL RIGHT TO BE ON THE PROPERTY ON WHICH THE EVENT TOOK PLACE AND THEREFORE NO PROTECTED RIGHT TO FREEDOM OF PRESS. ....................................................................................... 19

Prayer ............................................................................................................................................. 20

3

Table of Authorities CASES: Bashir v. Rockdale County, Ga.,

445 F.3d 1323 (11th Cir. 2006) ........................................................................................ 13 Brower v. County of Inyo,

489 U.S. 593 (1989) ......................................................................................................... 12 Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984). ........................................................................................................ 16 Gertz v. Robert Welch, Inc.,

418 U.S. 323 (1974). ........................................................................................................ 18 Graham v. Connor,

109 S.Ct. 1865 (1989) .......................................................................................... 12, 13, 14 Houchins v. KQUED, Inc.,

438 U.S. 1 (1978). ............................................................................................................ 19 Johnson v. Glick,

481 F.2d 1028 (2nd Cir. 1973) ........................................................................................... 13 Kovacs v. Cooper,

336 U.S. 77 (1949). ......................................................................................................... 16 Mapp v. Ohio,

367 U.S. 643 (1961) ......................................................................................................... 12 Members of City Council of City of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789 (1984). ........................................................................................................ 16 Salim v. Proulx,

93 F.3d 86 (2nd Cir. 1996) ............................................................................................... 14 Scott v. United States,

436 U.S. 1281978) ............................................................................................................ 12 Slicker v. Jackson,

215 F.3d 1225, (11th Cir.2000) ....................................................................................... 13 Spaulding v. United Transp. Union,

279 F.3d 901 (10th Cir. 2002) .......................................................................................... 11 Terry v. Ohio,

392 U.S. 1 (1967) ............................................................................................................. 13 Time, Inc. v. Hill,

385 U.S. 374 (1967). ........................................................................................................ 18 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,

425 U.S. 748 (1976). ........................................................................................................ 17 United States v. O'Brien,

391 U.S. 367 (1968). ........................................................................................................ 16 United States v. Thomas,

465 F.3d 198 (13th Cir. 2010) ........................................................................................... 11 Zemel v. Rusk,

381 U.S. 1 (1965). ...................................................................................................... 18, 20 STATUTES: FED. R. CIV. P. 56(c) ................................................................................................................... 11 18 U.S.C.A. § 795 (West). ............................................................................................................. 20 REGULATIONS

4

41 C.F.R. § 102-74.420 (West) .................................................................................................... 20 CONSTITUTIONAL PROVISIONS: U.S. Const. Amend. I .................................................................................................................... 16 U.S. CONST. amend. IV ............................................................................................................... 12 U.S. CONST. amend. XIV ........................................................................................................... 12

5

STATEMENT OF THE CASE

Luna Lockwood brought this section 1983 suit against officer Harry Piper

alleging that Piper’s warrantless entry into her home violated her Fourth and Fourteenth

Amendment right to be free from unreasonable search and seizure. Additionally, Piper’s

use of excessive force against her in connection with her arrest violated her Fourth and

Fourteenth Amendment rights to be free from excessive force. Lastly, plaintiff alleged

that her arrest for recording police officers in a public place and seizure of those

recording violated her First and Fourteenth Amendment rights to gather news and receive

information and ideas.

` Both Parties moved for a summary judgment. The district court granted partial

summary judgment for Lockwood on her first claim. On the remaining claims the court

granted summary judgment to Piper. The District Court found no constitutional

violations. Lockwood appealed the summary judgment to Piper on the second and third

claim. The majority for the United States Court of Appeals for the Thirteenth Circuit

reversed and remanded.

The majority adopted a new analysis for excessive force claims holding that in

determining whether a use of force was excessive the court should consider not only the

facts and circumstances at the moment of the use of force but also any relevant facts

leading up to the use of force. Concluding that under this rule of law Piper’s use of force

was excessive and unreasonable. Additionally the majority held that citizens have a First

Amendment right to record police officers in public.

Judge McGonagall filed a separate dissenting opinion concluding that courts should only

consider the facts and circumstances at the moment of the use of force. Additionally

6

finding that an unconstitutional entry of a home does not automatically cause the use of

force to be excessive. Finally the dissent found that Craven Gen. Stat. Section 15A-287

does not run afoul with the First Amendment and Lockwood’s arrest and seizure of her

recording do not violate her constitutional rights.

7

ISSUES PRESENTED

1. When determining the reasonableness of an officer’s use of force should the court

consider only the facts and circumstances at the moment of the use of force?

2. Whether individuals have an unfettered right to videotape under the First Amendment

to the Constitution and requiring consent be granted by the subject of video prior to

filming violates the freedom of the press?

8

FACTUAL BACKGROUND

On January 20, 2014 police were called out to an encampment of people at Diagon Park

in St. Mungo, Craven. Over the previous eight months both environmentalist had started

and encampment to protest new construction and homeless people had gradually joined

the group. Police were called out to start clearing the area, however a number of activists

and homeless people refused to comply.

Among the group of activists was Luna Lockwood who was waiting around to

record any police action. After she had begun recording an officer saw her and yelled that

she needed to stop recording because she was in violation of Craven Gen. Stat. §15A-

287, which essentially makes it illegal for someone to record a conversation without the

consent of all of the parties. Lockwood immediately stopped recording.

Also among the crowd was Officer Harry Piper who dressed in plain clothes had

been working undercover to monitor the encampments actions. He also observed the

interaction between the officer and Lockwood. He also observed that shortly after

Lockwood was told to stop recording she moved behind some bushes and began

recording again. After recording a specifically heated encounter between an officer and a

few individuals in the park she stopped recording and proceeded to walk home.

After arriving to her home she walked in and closed the door. Officer Piper

walked up to the door and knocked and in a loud voice identified himself as a police

officer, held up a police badge, and ordered Lockwood to open the door. Lockwood

refused to open the door and responded that he looked more like a homeless person than a

police officer. Officer Piper then kicked the door open. Lockwood ran to the back of the

house and grabbed her video camera off the table. Piper again told Lockwood that he was

a police officer and that she was under arrest. He then observed her looking around

9

frantically and he told her to turn around and put her hands above her head. When she did

not comply and reached for her backpack officer Piper grabbed his button and hit her on

the leg. Lockwood then fell to the floor and dropped her video camera. Piper then seized

the video camera and put his hand on her back and ordered her to stay down and not to

move. When she did not comply he hit her over the head with his baton. The second blow

knocked Lockwood unconscious and resulted in physical injuries.

Lockwood was charged with a violation of Craven Gen. Stat. § 15A-287 however

the charges were dropped at the trial stage. Lockwood then brought suit against officer

Piper under 42 U.S.C. § 1983 claiming that (1) her Fourth Amendment rights were

violated when Piper entered her home without a warrant; (2) That Pipers use of force was

excessive; and (3) that the seizure of her video camera violated her First Amendment

right to gather information, news and ideas. The district judge granted partial summary

judgment for Lockwood on the first claim and for Piper on the second and third claim.

The Court of Appeals for the Thirteenth Circuit found in favor of Lockwood on both

claims.

10

SUMMARY OF THE ARGUMENT

The Fourth Amendment to the United States Constitution provides that

individuals are free from the use of excessive force from state actors. The Fourth

Amendment is and always have been analyzed from an objective standard of

reasonableness. Therefore when determining whether the use of force is reasonable courts

are to consider what an objective officer would have done considering the circumstances

at the moment of the use of force. What that means is court should only consider the facts

and circumstances in the split second that the officer is facing. The court is not supposed

to address all of the facts and circumstances leading up to the use of force.

Secondly it would be bad public policy for courts to merge the issue of lawful

arrest and excessive force. The standard is not subjective but objective. Courts should not

divulge into mini trials when determining the use of force. There needs to be a clear cut

test. The Supreme Court has made that standard clear. The test is the facts and

circumstances at the moment of the use of force not all of the facts leading up to the use

of force. This would not only be arbitrary but it would also be inefficient and lead to

confuse in the judicial system.

Civil rights have never been without reasonable restraint. The most common

restriction that the court has held to be constitutional is time place manner restrictions.

The Craven Statute as written is merely a time, place, or manner restriction. The

government actually plays very little role in restricting the rights of the first amendment.

The individual who is being filmed is the actual restrictor with the government playing a

passive role in mere enforcement of the statute. Additionally, the government must

attempt to balance the right to free press with the right to privacy. In this instance the

11

government has empowered individuals to make their own decision with regards to their

privacy. There is a chance that permission to film may be granted and filming can take

place. This merely furthers the civil discourse by requiring that permission be granted so

that individuals will not react poorly when they realize their privacy has been invaded.

Lastly, even if there are first amendment concerns the respondent did not have a

legal right to be filming where she was at the time of the incident. The government

restricts press rights to even credentialed press representatives in areas such as military

installations, federal courts, and even penal institutions. The area in question was private

government property and the removal of protesters could have been for their own safety

as construction was set to begin. The respondent does not have a claim since there was no

legal right to even be on the land in question.

STANDARD OF REVIEW

Conclusions of law concerning constitutional challenges are reviewed de novo. United

States v. Thomas, 465 F.3d 198, 201 (13th Cir. 2010). The Court construes the record in

the light most favorable to the plaintiffs. Id. Furthermore, the Court is “required to... draw

all reasonable inferences in favor of plaintiffs.” Spaulding v. United Transp. Union, 279

F.3d 901,904 (10th Cir. 2002). Summary judgment is appropriate only when the record

shows that there is no genuine issue of material fact and the moving party is therefore

entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c).

ARGUMENT

I. THIS COURT SHOULD REVERSE THE THIRTEENTH CIRCUIT'S ORDER TO REMAND BECAUSE IN DETERMINING WHETHER A USE OF FORCE WAS EXCESSIVE, A COURT SHOULD ONLY CONSIDER THE FACTS AND CIRCUMSTANCE AT THE TIME OF THE USE OF FORCE.

12

Under the Fourth Amendment to the United States Constitution, “[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, and no Warrants shall issue, but upon

probable cause.” U.S. CONST. amend. IV. The Fourth Amendment is applicable to the

States through the Fourteenth Amendment. U.S. CONST. amend. XIV; Mapp v. Ohio,

367 U.S. 643 (1961) A Fourth Amendment seizure occurs when there is a governmental

termination of freedom of movement through means intentionally applied. Brower v.

County of Inyo, 489 U.S. 593, 595 (1989). In Graham v. Connor, this court held that all

claims that law enforcement used excessive force in the course of an arrest should be

analyzed under the Fourth Amendment’s protection against unreasonable seizure. 109

S.Ct. 1865 (1989). All 1983 claims must be judged by the constitutional standard

governing that right rather than by a general excessive force standard. Id. at 1865. The

reasonableness of the use of force depends not only on when it is made but on how it is

carried out. Id. at 1871. The standard is objective reasonableness. Id. at 1872. The

question is whether the officers actions are objectively reasonable in light of the facts and

circumstances confronting them, without regard to the officer's intent or motivation. Id.

“An officer's evil intentions will not make a Fourth Amendment violation out of an

objectively reasonable use of force; nor will an officer’s good intentions make an

objectively unreasonable use of force constitutional.” Scott v. United States, 436 U.S.

128, 138 (1978). A leading treatise on excessive force has stated that in order for the

Graham analysis to apply, the plaintiff must have been subjected to a seizure within the

meaning of the Fourth Amendment. See AVERY, RUDOVSKY & BLUM, POLICE

MISCONDUCT: LAW AND LITIGATION § 2:19 (3d ed. 2005). Notably, it does not

13

say that a plaintiff must have been subjected to a lawful seizure. In fact, the treatise

states, “[t]he claim for excessive force is actionable even if the arrest that precipitated the

case was legal.” Id. According to the Eleventh Circuit a genuine excessive force claim

relates only to the manner in which an arrest was carried out, independent of whether law

enforcement officers had the power to arrest. Bashir v. Rockdale County, Ga., 445 F.3d

1323, 1323 (11th Cir. 2006). That court generally considered these factors in determining

whether an officer's use of force was objectively reasonable, (1) the need for the use of

force, (2) the relationship between the need and the amount of force used, (3) the extent

of the injuries, (4) whether the force was applied in good faith. Slicker v. Jackson, 215

F.3d 1225, 1233 (11th Cir.2000)

The “reasonableness of a particular use of force can only be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight. Terry v. Ohio, 392 U.S. 1, 20 (1967). The “calculus of reasonableness must

embody allowance of the fact that police officers are often forced to make split second

judgments- in circumstances that are tense, uncertain, and rapidly evolving- about the

amount of force that is necessary in a particular situation.” Graham at 397.

In 1973 the Court of Appeals for the second circuit addressed a 1983 claim filed

by a detainee who claimed that he had been assaulted by a guard without justification.

Johnson v. Glick 481 F.2d 1028, cert denied, 94 S.Ct. 462 (2nd Cir. 1973). In analyzing

that claim Judge Friendly did not apply the Fourth Amendment or the Eighth amendment,

instead he looked at substantive due process, holding that “quite apart from any ‘specific’

of the Bill of Rights, application of undue force by *393 law enforcement officers

deprives a suspect of liberty without due process of law.”. Id. This court in Graham

14

rejected that analysis holding that all 1983 actions should be addressed under the Fourth

Amendment. Graham at 871.

A. OFFICER HARRY PIPER’S USE OF FORCE WAS REASONABLE CONSIDERING THE FACTS AT THE MOMENT OF THE USE OF FORCE.

When officers are on duty they often only have a split second to make decisions that are

life and death. The reasonableness inquiry depends only upon the officer's knowledge at

the very second he has to make the decision to employ force. Salim v. Proulx, 93 F.3d 86,

92 (2nd Cir. 1996). When Officer Piper was attempting to arrest Luna Lockwood, she

began searching around the room. When Piper ordered her to turn around and put her

hands on her head she did not comply. Suddenly she reached for her backpack and in that

split second Piper struck her on her leg. As she continued to struggle Officer Piper

exercised reasonable force that society allows to retrain her. In these instances what the

Court is to consider is not why she was being arrested or the location of the arrest. The

Court is to consider the facts at the moment of the arrest. The facts are that while

attempting to make and arrest Lockwood reached for a backpack that could have

contained a weapon and attempted to resist the arrest. Those are the facts that Officer

Piper had at his disposal at the split second that he used force.

If the court was to look at every single factor when determining reasonableness it

would create an arbitrary and uneven system that would make compliance for police

officers impossible. The historical jurisprudence and the jurisprudence of the majority of

states is to consider only the facts at that very moment. This it the best analysis not only

for public policy but also for judicial efficiency. In conclusion officer Piper was faced

with a split second decision to use force and his use was reasonable considering the facts

at the moment the decision to use force was made.

15

B. WHETHER THE ARREST IS LAWFUL IS IRRELEVANT WHEN DETERMINING WHETHER USE OF FORCE WAS EXCESSIVE.

The Thirteenth Circuit focused on the fact that Officer Piper made unlawful entry into

Lockwood’s home when considering the reasonableness of Pipers actions. This however

is not the correct analysis under the Fourth Amendment’s excessive force standard.

Unlawful entry and excessive force are different questions under the Fourth Amendment.

Merging the two questions would not only be unjust but it would create a judicial

nightmare for the courts. If courts were to look at them together there would be lawful

force found to be unlawful for entry and unlawful force found to be lawful because of

warrants. This is not the jurisprudence for excessive force analysis.

In officer Piper’s case it does not matter if he made lawful entry into Lockwood’s

home. What matters is whether he acted reasonably Lockwood resisted arrest. This court

should analyze the reasonableness standard from the perspective of a reasonable officer

on the scene. The Thirteenth circuit has failed to do that. Therefore although Officer

Piper did not have a warrant to enter the home of Lockwood that does not make his use of

force any more or less reasonable and thus should not be a part of the analysis.

II. THE COURT OF APPEALS SHOULD BE OVERTURNED BECAUSE CRAVEN GENERAL STATUTE § 15A-287 IS MERELY A TIME, PLACE, OR MANNER RESTRICTION AND HAS NO CHILLING EFFECT ON THE FIRST AMENDMENT BY NOT ALLOWING THE VIDEO RECORDING WITHOUT PRIOR AUTHORIZATION BY ALL PARTIES.

The First Amendment to the Constitution restricts congress from passing any law

that would hinder establishment of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press; or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances U.S. Const. amend.

I (emphasis added). The respondent seeks to extend this restriction to overturn Craven

16

Gen. Stat. § 15A-287 which was passed by those elected to protect parties privacy

interests by requiring that prior authorization be obtained before video recording private

conversations. This court should overturn the holding of the lower appellate court and

hold that Craven Gen. Stat. § 15A-287 does not contravene the First Amendment to the

Constitution while also furthering privacy interests by not allowing recording without

consent.

A. CRAVEN GEN. STAT § 15A-287 DOES NOT RESTRICT INDIVIDUALS ABILITY TO RECEIVE INFORMATION IN A LEGAL MANNER BUT THAT PERMISSION BE GRANTED PRIOR TO FILMING.

Jurisprudence shows that the Bill of Rights is not is not without limits, all of the

fundamental rights enshrined in the Bill of Rights are not without limitation. The court

set out succinctly in Clark, “… the First Amendment, it is nonetheless subject to

reasonable time, place, and manner restrictions.” Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 3076 (1984). In this case the form of speech was expressive but

the court nonetheless recognized that this was an appropriate restriction and the First

Amendment was not absolute. See Members of City Council of City of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 795 (1984) (restricting bill posting as

constitutional); Kovacs v. Cooper, 336 U.S. 77, 78 (1949). (affirming conviction of

individual using sound amplification in violation of ordinance because did not violate the

First Amendment); United States v. O'Brien, 391 U.S. 367, 383 (1968). (affirming

conviction for burning draft card even if symbolic speech). This is put even more

succinctly while explaining why certain speech was constitutional in Virginia State

Board of Pharmacy, the Supreme Court nevertheless pointed out

17

We have often approved restrictions of that kind provided that they are justified

without reference to the content of the regulated speech, that they serve a

significant governmental interest, and that in so doing they leave open ample

alternative channels for communication of the information, 425 U.S. 748, 771,

(1976)

All of these cases show that under the right circumstances that the first amendment is not

absolute and curtailment is justifiable.

Craven Gen. Stat. § 15A-287 in no way restricts any individual’s ability to receive or

pass on information. Requiring that all individuals who are videotaped or otherwise

recorded be asked permission prior to the recording is not curtailing anything but a

certain medium. This requirement does not interfere with an individual’s ability to

witness and pass on the facts to which they witnessed. The statute is merely to protect

individuals from having their private interactions filmed without their consent. The

content of what can be filmed controlled by governmental oversight just that of the

preference of the citizens with government enforcement.

In the case at bar petitioner was free to write about what transpired while she was present

during the protest and subsequent removal of protestors from private property. The ability

to film was never taken only the ability to film someone covertly without their

permission. The respondent never attempted to ask for permission to film the officers.

She was told to cease filming because she had not received permission to do so does not

to completely bar her from filming the incident. Had she asked for permission it may very

well have been granted but since respondent did not make the request it is speculative to

18

assume permission would have been denied. This restriction merely requires an

individual take an extra step before exercising their right to film. This is similar to

requiring permitting before undertaking other forms of speech. Further this step does not

require any governmental prohibition on speech merely allowing individuals to restrict

recordings of themselves to be made covertly by others. The statute is written in such a

way that it does not make the government the arbitrator of who they allow to record. This

statute puts the power of choice back into the hands of the citizens have more opportunity

to make their own decisions regarding their privacy.

B. THE IMPLICIT INTENT OF THE STATUTE IS TO PROTECT PRIVACY INTEREST OF INDIVIDUALS NOT TO BE FILMED.

The Supreme Court has held that it must balance the governmental interests with the

rights guaranteed under the Bill of Rights. Compare Time, Inc. v. Hill, 385 U.S. 374, 382

(1967), Gertz v. Robert Welch, Inc., 418 U.S. 323, 327 (1974). Both of these cases set

out that there has to be a balancing between the right to privacy and the right to a free

press. Additionally, the curtailment of the right to film does not allow respondent to get

their point across through a different medium. In regards to an argument that any sanction

on medium would limit the amount for material the court held “There are few

restrictions on action which could not be clothed by ingenious argument in the garb of

decreased data flow.” Zemel v. Rusk, 381 U.S. 1, 16–17 (1965). This shows that there is

no reason that merely restricting videography would decrease the data available or other

mediums in which it could be recorded or conveyed.

The statute requiring that respondent first seek permission before filming in no way

disallows respondent from filming. Permission may be granted by the subject which is

19

intended to be filmed. In similar instances it may be in the best interest of the officers to

give this permission as many videos are currently taken and edited to show a certain side

of an incident unfairly to further some agenda. Allowing individuals to film officers in

furtherance of their duties would provide for more sides to be shown at ensuing trials or

in the court of public opinion. That being said, by requiring that those who wish to film

request permission before filming allows for individuals who wish to have their privacy

protected be spared from incidents being taken out of context and their right to privacy

protected.

There are many reasons that one would like to be precluded from being filmed. A

bystander could be in the midst of a tryst that is not privy nor the business of public

knowledge. Many cultures and religions do not allow for filming as they think it affects

their ability to get to heaven. By requiring that all parties give permission to film the

government merely facilitates the interaction between citizens in a friendly manner to

keep one who is being filmed from reacting poorly when they realize their privacy

interests have been curtailed without permission.

C. PETITIONER DID NOT HAVE A LEGAL RIGHT TO BE ON THE PROPERTY ON WHICH THE EVENT TOOK PLACE AND THEREFORE NO PROTECTED RIGHT TO FREEDOM OF PRESS.

The Supreme Court has held in several cases that rights to receive and transmit

are not unfettered. There are many instances where rights to record and even to interview

have been curtailed. Most notably in KQUED, Inc. credentialed reporters were not given

unfettered access to a prison or to interview prisoners, “The public importance of

conditions in penal facilities and the media's role of providing information afford no basis

for reading into the Constitution a right of the public or the media to enter these

20

institutions, with camera equipment, and take moving and still pictures of inmates for

broadcast purposes. 438 U.S. 1, 9 (1978). While that case involved inmates many other

public areas bar the use of video graphic equipment. Customs areas also bar recording to

negate the ability of individuals to see surveillance techniques and allow safety of

passengers. See 41 C.F.R. § 102-74.420 (West). Military installations frequently are

restricted in the use of photography and videography due to security matters. See 18

U.S.C.A. § 795 (West). Additionally, in Zemel the court held “The right to speak and

publish does not carry with it the unrestrained right to gather information.” 381 U.S. 1, 17

(1965). In this way the respondent does not have a first amendment right to gather in an

illegal manner.

In the case at bar Respondent was what had been a public area but had since been

turned into an area that was to be used in construction. Respondent had no legal right to

be in the area where the filming took place. The government was attempting to remove

protestors in order to begin construction which is not only their right on the property but

also in the best interest and safety of the protestors. Even if Craven Gen. Stat. § 15A-287

does run afoul of the First Amendment as written the respondent has no First Amendment

claim, as there is no unfettered right to freedom of speech in illegal areas.

PRAYER

Luna Lockwood’s constitutional rights were not violated. The record shows that the

appellate court applied the wrong test when determining if Officer Harry Piper used

excessive force when arresting Luna Lockwood. Furthermore the Craven Statute § 15A-

287 is not a violation of the First Amendment to the United Stated Constitution because it

21

is merely a reasonable time, place or manner restriction. Thus, this Court should reverse

the United States Court of Appeals for the Thirteenth Circuit.