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Privacy
Monthly Law Journal Article: Civil Liability and Dead Bodies, 2014 (7) AELE Mo. L. J. 101.
Monthly Law Journal Article: Civil Liability Under the Driver's Privacy Protection Act (DPPA), 2018 (8) AELE Mo. L. J. 101.
A female motorist sued a police chief, the city, and other public officials for alleged violations of the Driver’s Privacy Protection Act (DPPA). After the police chief admitted liability for six violations of the law, searching for her personal information for an “impermissible” private purpose, the jury awarded the plaintiff punitive damages of $85,000, but no actual damages, and the trial judge also awarded $15,000 in liquidated damages. $141,197.30 in attorneys’ fees were also awarded. The trial court ruled that the plaintiff failed to present sufficient evidence that the city was directly liable for the violations, but authorized the jury’s finding that the city was vicariously liable for the police chief's actions. A federal appeals court upheld that result. It also ruled that the trial court had not abused its discretion by finding that plaintiff’s proposed class failed to satisfy the “numerosity” requirement of Federal Rule of Civil Procedure 23(a). The trial court correctly refused to consider direct liability against the city because the police chief acted for personal reasons, rather than under the auspices of official policymaking authority. His actions, therefore, did not represent a city policy. Despite that, however, the trial court did not err in allowing vicarious liability against the city because the police chief was aided in accomplishing his goal by his position since he used a government-issued computer and official credentials to obtain the plaintiff’s private information, and he could not have done so but for his official position. Orduno v. Pietrzak, #17-3437, 2019 U.S. App. Lexis 23019, 2019 WL 3489089 (8th Cir.).
A minor girl and her mother sued four officers or employees of a police department who were alleged responsible for the public release of information regarding the juvenile’s arrest in violation of a New Mexico state law. Claims for violation of privacy were asserted under both federal and state law. The defendants appealed the federal trial court’s refusal to dismiss the plaintiffs’ federal civil rights equal protection claim based on qualified immunity. A federal appeals court found that the defendants were on notice they would violate the girl’s right to equal protection under the law if they intentionally and without a rational basis differentiated between her and similarly situated juvenile arrestees in applying state laws against the disclosure of juvenile arrest and delinquency records. “Any reasonable official” in their shoes would have understood that they were violating the plaintiffs’ equal protection rights by these actions. A.N. v. Alamogordo Police Department, #18-2112, 2019 U.S. App. Lexis 20156 (10th Cir.).
A federal civil rights lawsuit alleged violations of the plaintiffs’ constitutional right to privacy and of Arkansas tort law in connection with a city, a county, and various city or county officials’ decisions to release information identifying the plaintiffs as victims of childhood sexual abuse. The plaintiffs are sisters and stars of a popular reality TV show “19 Kids and Counting.” They were interviewed as part of a police investigation into alleged sexual misconduct by their brother. A federal appeals court upheld the denial of qualified immunity to the defendant officials. The information released about the minors interviewed in the investigation was “highly personal” and involved the “most intimate aspects” of their lives. It was inherently private, the court stated, and entitled to constitutional protection. The lawsuit therefore stated a plausible claim for the violation of their constitutional right to confidentiality. The right of minor victims of sexual abuse not to have their identities and the details of their abuse publically revealed was clearly established at the time. The plaintiffs, additionally, sufficiently pleaded intentional misconduct in the release of the information, so the officials were not entitled to statutory or qualified immunity on the plaintiffs’ state law claims. Dillard v. Hoyt, #17-3284, 2019 U.S. App. Lexis 20723, 2019 WL 3049010 (8th Cir.).
An IRS agent was not entitled to qualified immunity for allegedly violating a woman’s Fourth Amendment right to bodily privacy when, during the lawful execution of a search warrant for criminal tax fraud at the plaintiff's home, he escorted her to the bathroom and monitored her while she relieved herself. Based on the scope, manner, justification, and place of the search, the court ruled held that a reasonable jury could conclude that the agent’s actions were unreasonable and violated the woman’s Fourth Amendment rights. The defendant’s general interests in preventing destruction of evidence and promoting officer safety did not justify the scope or manner of the intrusion into the woman’s most basic subject of privacy, her naked body. This right was clearly established and a reasonable officer in the agent’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, was unlawful. Ioane v. Hodges, #16-16089, 903 F.3d 929 (9th Cir. 2018).
A female motorist sued a female police officer, several other officers, various officials and a city for alleged unauthorized access to her driver’s license information in violation of the Driver's Privacy Protection Act (DPPA), 18 U.S.C. 2721-25. A federal appeals court upheld the dismissal of the claims. Claims against the female officer were untimely under the statute of limitations. Municipal liability claims against the city were not established because she failed to allege sufficient facts supporting an inference that the city knowingly allowed the officer to access the database for any reason other than her official duties; and plaintiff failed to preserve any vicarious liability claim. Loeffler v. City of Duluth, #17-1377, 2018 U.S. App. Lexis 17825 (8th Cir.).
A former major league baseball player sued a county and other defendants after an audit revealed that officers from over 30 departments had accessed his driver’s license information more than 125 times. He claimed that this violated his rights under the Driver's Privacy Protection Act (DPPA), 18 U.S.C. 2721-25. Claims against all but two municipalities were not timely. A federal appeals court upheld the dismissal of the remaining claims because the plaintiff failed to plead sufficient facts to show that the defendants accessed his information for an impermissible purpose. Berenguer v. Anoka County, #16-4123, 2018 U.S. App. Lexis 11678 (8th Cir.).
A woman fell into a deep sleep after
a taxing few days taking care of her Alzheimer-stricken mother. Family members
were unable to rouse her and EMTs arrived, waking her up with an ammonia
capsule. She declined being taken to a hospital. In the interim, an officer
received a call from 911 requesting assistance at the residence. When he
arrived, one of the EMTs told him that the woman had "been a little
combative to herself," was upset, and had been "scruffing and hitting
herself in the head. He talked to a hospital where she had previously been
diagnosed as suffering from caregiver breakdown and Pick's disease, which can
involve headaches and seizures, He decided to seize the woman in her bedroom
and take her to the hospial for a psychological evaluation. A federal appeals
court held that the officer had arguable probable cause to seize the woman as a
possible danger to herself, rejecting her unlawful seizure and false
imprisonment claims. Further proceedings were ordered, however, on whether the
officer's conduct during the seizure was done in an extraordinary manner
unusually harmful to plaintiff's privacy interests, such as refusing to leave her
alone while she removed her nightgown and put on other clothing, which he
directed her to do, forcing her to disrobe, which implicated her right to
privacy and personal security. He failed to summon an available female EMT or
female relative for that purpose, and there was also testimony that he
attempted to pull her nightgown from her shoulder, and "used the threat of
deadly force to compel her to remove her shorts, in order to first put on
undergarments, by patting his gun after she initially refused." If true,
the appeals court said, this violated her clearly established rights." May
v. City of Nahunta, Georgia, #15-11749, 2016 U.S. App. Lexis 20501 (11th Cir.)
Minnesota driver's license holders, filed suit against
local counties, cities, and individual defendants alleging that they violated
the Driver’s Privacy Protection Act (DPPA), 18 U.S.C. 2721-2725, by accessing
or disclosing personal information from the driver's license database without a
permissible purpose. The individual defendants were not entitled to qualified
immunity on these claims. Some defendants argued that the law does not impose
liability on a public official who merely accesses and views a person’s motor
vehicle record. The statutory term “obtain” is unambiguous and controls defendants'
argument that the rule of lenity entitled them to qualified immunity, which
they were not. Kampschroer v. Anoka County, #14-3527, 2016 U.S. App. Lexis
16173 (8th Cir.).
In a prior 1996 case, the U.S. Court of Appeals
for the Sixth Circuit ruled that the Freedom of Information Act (FOIA), 5
U.S.C. 552, requires government agencies to honor requests for the booking
photographs of criminal defendants who have appeared in court during ongoing
proceedings. Despite that, the U.S. Marshals Service denied the plaintiff
newspaper's request for booking photographs of Detroit-area police officers
indicted on federal charges. The federal appeals court upheld the denial and
overruled the 1996 case, finding that FOIA Exemption 7(C) protects a
non-trivial privacy interest in keeping "personal facts away from the
public eye." Criminal defendants, the court stated, do not forfeit their
interest in controlling private information while their cases remain pending,
and federal regulations and policies prevented mug-shot disclosure absent a
law-enforcement purpose in such disclosure. Detroit Free Press v. Dep't of
Justice, #14-1670, 2016 U.S. App. Lexis 12928, 2016 Fed App. 164P (6th Cir.),
44 Media L. Rep. (BNA) 2009 (6th Cir.).
After a man parked his car on the street outside
his suburban home in violation of an ordinance, an officer placed a parking
ticket face down under his windshield wiper. The ticket included the man's
name, birth date, sex, weight, height, driver's license number, an outdated
address, and the vehicle identification number and description of his car. He
then filed an attempted class action lawsuit under the federal Driver's Privacy
Protection Act, 18 U.S.C. 2721, forbidding the disclosure of personal
information obtained in connection with motor vehicle records except for
specified uses "in connection with any civil, criminal, administrative, or
arbitral proceeding" and "use by any government agency, including any
court or law enforcement agency, in carrying out its functions." Upholding
the rejection of the privacy claim, a federal appeals court noted that there
was no evidence that anyone had ever taken a parking ticket off a car
windshield in the suburb in question and used the personal information on the
ticket for any purpose. It stated that, had the municipality made all the
information present on the ticket accessible to the public on the Internet or
placed "highly sensitive" information, such as the motorist's Social
Security number, on the ticket, there might have been a greater risk of a
"nontrivial" invasion of privacy that outweighed any benefit to law
enforcement. Senne v. Village of Palatine, #13-3671, 2015 U.S. App. Lexis 7118
(7th Cir.).
A federal appeals court held that a telephone
metadata program under which the National Security Agency (NSA) collected in
bulk "on an ongoing daily basis" the metadata associated with
numerous phone calls made by and to Americans, was not authorized by Sec. 215
of the PATRIOT Act. The appeals court did not consider the constitutionality of
the program or rule that a preliminary injunction was required, leaving it for
the trial court on remand to consider the propriety of preliminary relief. The
trial court had denied relef, holding that the plaintiffs were precluded from
bringing suit against the federal government about this program, but there was
a right of action under the Administrative Procedure Act, 5 U.S.C. Sec. 702.
ACLU v. Clapper, #14-42, 2015 U.S. App. Lexis 7531 (2nd Cir.).
A village was entitled to summary judgment on claims that
information placed on its parking tickets violated the federal Drivers Privacy
Protection Act. While the information listed on the tickets was a
"disclosure, it was an acceptable use of the information for purposes of
identification and verification of the person to whom the ticket was issued.
The court commented, however, that not all the information on the tickets may
be necessary, while not spelling out which information might be problematic. Senne v. Palatine,
#1:10-cv-05434, 2013 U.S. Dist. Lexis 168677 (N.D. Ill.). For prior opinions,
see Senne v. Village of Palatine, #10-3243, 695 F.3d 597 (7th Cir. en banc.
2012), cert. denied, #12-573, 133 S. Ct. 2850, 186 L. Ed. 2d 909, 2013 U.S.
Lexis 4737.
A man accused by a male teenager of kidnapping and
raping him sued investigating police. He claimed that they barged into his
hotel room without consent or a search warrant and seized his wallet and other
items. He also claimed that they did this after illegally obtaining his video
rental records from a video store in violation of the Video Privacy Protection
Act, 18 U.S.C. 2710 in an attempt to collaborate the teenager's story that he
had spent some time in the hotel room watching specific videos. Criminal
charges against the man are currently pending in state court. A federal appeals
court ruled that the trial court improperly dismissed the unlawful search and
privacy claims. The privacy claims were against the video store. The appeals
court noted that, while constitutional claims might be litigated during the
criminal trial, money damages were not available in that proceeding. The trial
court should have stayed the proceeding rather than dismissed the case, because
otherwise his claims might be time barred by the time the prosecution was
concluded. Gakuba v. O'Brien, #12-3345, 2013 U.S. App. Lexis 5866 (7th Cir.).
The highest court in Maryland has upheld an
order requiring the state police to release records the NAACP requested
concerning internal investigations of complaints of racial profiling during
traffic stops and searches. The records were to be released with the names and
identification of individual officers redacted. The court found that, after
officers' names, the names of complainants, and all identifying information
were removed, the reports were not personnel records or the "records of an
individual" for the purpose of any exemption from disclosure under a state
public information law. Md. Dep't of State Police v. Md. State Conf. of NAACP
Branches, #41-10, 2013 Md. Lexis 15.
A police officer placing a parking ticket underneath a
car's windshield wiper blade may have violated the federal Driver's Privacy
Protection Act. The court noted that the ticket disclosed the full name,
address, date of birth, sex, height, weight, and driver's license number of the
driver, with all that information obtained from state records. "The
possibilities for identity theft are obvious," the court stated, and the
municipality failed to show how the disclosed information being stated on the
ticket played a role in its law enforcement efforts so as to come within an
exception to the statute. The court rejected arguments by the municipality that
the plaintiff motorist was required to prove that someone other than himself
actually viewed the information on the ticket on his vehicle in order to pursue
his claim under the statute. Senne v. Village of Palatine, #10-3243, 2012 U.S.
App. Lexis 16328 (7th Cir. en banc.).
A city properly redacted information concerning crime
victims and witnesses in various police reports and arrest citations released
to the media under a Kentucky state Open Records law. Releasing the home
addresses, phone numbers, and driver's licenses of victims and witnesses was
covered by an exemption to the law for personal information which, if released,
could amount to a "clearly unwarranted invasion of personal privacy."
A unanimous state intermediate appeals court ruled that this exception could
also be used to redact the names of all juveniles from the requested documents.
Kentucky New Era v. City of Hopkinsville, #2010-CA-001742 2012 Ky. App. Unpub.
Lexis 299.
When protesters gathered outside a meeting of the
International Monetary Fund (IMF) and vandalized the lobby of the hotel where
delegates were staying, a photojournalist took pictures of the mayhem. A county
police officer reviewing the hotel's security tapes found out that she had been
present taking pictures. Deputized as a federal marshal, he helped obtain a
search warrant for her home, where it was believed her computer equipment
containing the photos of the protesters would be found. During the execution of
the warrant, her computer hard drive was seized. She sued the federal
government, claiming that the search violated the Privacy Protection Act, 42
U.S.C. Sec. 2000aa et seq. She sought damages for the search, although she was
neither arrested nor charged. The appeals court found that a suspect exception
to the Act applied to the claim because the circumstances provided probable
cause to believe that she was involved with criminal activity with vandals at
the hotel. The mere fact that the officer knew that she was a journalist did
not destroy probable cause. Sennett v. United States, #11-1421, 667 F.3d 531
(4th Cir. 2012).
A man active in advocating the right to carry concealed
firearms in public openly carried a holstered handgun into retail stores on two
occasions. Both times, he was arrested for disorderly conduct and had his gun
confiscated. He was not prosecuted and each time his gun was eventually
returned. He claimed that his conduct was not disorderly and was protected
under the federal and state constitutions. The officers were entitled to
qualified immunity on unlawful arrest claims. The officers could not have
anticipated that the U.S. Supreme Court would subsequently issue Second
Amendment opinions raising an issue about whether his conduct was lawful and
were not required to balance alleged firearms rights under the Wisconsin state
constitution against the disorderly conduct law. The officers also were not liable
for violating the plaintiff's rights under the federal Privacy Act by
requesting his Social Security number during one of the incidents, since it was
not clearly established that they had to inform him whether the disclosure of
his Social Security number was voluntary or mandatory, and they had not denied
him any "right, benefit, or privilege" based on his refusal to
disclose the number. The court also rejected claims for unlawful seizure of his
property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012
U.S. App. Lexis 1965 (7th Cir.).
A federal appeals court ruled that residential
telephone customers could proceed with their claims that the federal
government, with the assistance of major telecommunications companies
"engaged in widespread warrantless eavesdropping in the United States
following the September 11, 2001, attacks," constituting a
"communications dragnet of ordinary American citizens." The court
found that the plaintiffs had made detailed allegations and claims of harm, that
the claims were not barred by the "political question" doctrine, and
that the fact that the claim of illegal wiretapping arose in the context of
national security issues did not impose on the plaintiffs any heightened
scrutiny requirement in terms of the details they had to provide in their
complaint. Claim were asserted concerning alleged violations of the First
Amendment right of association, violation of the Fourth Amendment, and
violation of federal wiretapping and privacy laws. Jewel v. National Security
Agency, #10-15616, 2011 U.S. App. Lexis 25951 (9th Cir.).
A failed candidate for State's Attorney
sued the incumbent State's Attorney and others, claiming that they violated his
Fourth Amendment and due process rights by publically disclosing that he was
under investigation by Illinois state agencies for possible violations of tax
law, unemployment insurance law, and legal ethics. Upholding the dismissal of
the lawsuit, a federal appeals court held that the fact that a candidate for
elected office is under investigation for ethical and legal violations is a
matter of "substantial public interest." The plaintiff had not
included a state law claim under a state statute requiring that such
investigations be kept confidential, and the court found no violation of a
federal constitutional right to privacy. Wolfe v. Schaefer, #10-1016, 2010 U.S.
App. Lexis 18159 (7th Cir.).
A man who enlisted in the Army had his military service
terminated when he failed a background check because a court clerk sent the
recruiter his juvenile criminal record after receiving a request to do so. He
sued the court clerk for alleged violation of his due process rights. A federal
appeals court upheld the dismissal of the complaint for failure to state a
claim for a violation of his right to privacy. He lacked a legitimate
expectation of privacy in his juvenile records due to release forms he signed
in connection with his enlistment, and the clerk's disclosure was "neither
shockingly degrading nor egregiously humiliating." Van Zee v. Hanson,
#10-1588, 2011 U.S. App. Lexis 859 (8th Cir.).
After a motorist was decapitated in a car crash,
two highway patrolmen allegedly e-mailed nine "gruesome" death
pictures of the body to family members and friends on Halloween for their
"shock value." The pictures later were posted on the Internet. The
decedent's family sued for invasion of privacy and intentional infliction of
emotional distress. A California appeals court found that the trial court
improperly rejected the privacy claim, since the dissemination of the photos in
this manner served no legitimate law enforcement purpose or public interest,
appearing to be for the purpose of "pure morbidity and
sensationalism." The plaintiffs also had a valid cause of action for
negligent infliction of emotional distress, the court ruled, since it was
foreseeable that the display of the pictures would cause them "devastating
trauma." Catsouras v. Calif. Highway Patrol, #G039916, 2010 Cal. App.
Lexis 113 (4th Dist.).
A police officer, during an arrest, searched the
arrestee's cell phone and found stored nude pictures of the arrestee and his
girlfriend in sexually compromising positions. These photos were allegedly
later shared with members of the public and other officers. The girlfriend filed
a federal civil rights lawsuit against officers and the town, claiming that
stress from the incident caused her to suffer depression, anxiety, loss of
sleep, weight fluctuation, and nightmares, as well as the loss of her
relationship with the arrestee. A federal court dismissed the girlfriend's
lawsuit, finding that she lacked an objectively reasonable expectation of
privacy in the photos stored in the cellphone. Having lent the phone to the
arrestee two months before, she did not have control or possession of it, or
the ability to prevent others from accessing the photos stored on it. Casella
v. Borders, Civil #3:09CV00019, 2009 U.S. Dist. Lexis 80357 (W.D. Va.).
During a search of an arrestee, officers found a
cell phone that had stored on it a number of nude photos of the arrestee and a
former girlfriend in sexually explicit poses. In a lawsuit for violation of his
Fourth Amendment right to privacy, the arrestee claimed that these photos were
then shared with both other officers and members of the public. While stating
that the alleged actions were "unprofessional and reprehensible," the
court found that there was no showing that the town that employed the officers
was aware, either actually or constructively, of any widespread constitutional
violations by the officers. The officer who allegedly searched through the
photos stored on the cell phone was entitled to qualified immunity as his
alleged actions did not violate any clearly established constitutional right.
Newhard v. Borders, Civil #3:09CV00020, 2009 U.S. Dist. Lexis 80387 (W.D. Va.).
A police officer did not violate a motorist's
federal or state privacy rights when, during a phone call to his home, he told
the motorist's stepmother that he was issuing a summons for the misdemeanor offense
of driving without insurance, and that the motorist should come to the police
station to pick it up. The driver had provided the officer with proof of
insurance at the scene of an accident, and the officer subsequently learned
that the policy had been cancelled. Larsen v. Johnston, #08-4184, 2009 U.S.
App. Lexis 8368 (Unpub. 10th Cir.).
A bank president and CEO was properly awarded
$100,000 in damages for emotional distress in his Privacy Act lawsuit claiming
that information about him was improperly disclosed when the U.S. Justice
Department's National Drug Intelligence Center, without authorization, provided
an "Executive Summary" which was then disseminated by the media,
having an adverse effect on him. While federal appeals courts are split on the
issue of what damages can be awarded in such cases, there has been no
resolution of this disagreement by the U.S. Supreme Court, and, therefore,
prior binding 2nd Circuit precedent on the issue, allowing such awards, still
applies. Jacobs v. Nat'l Drug Intelligence Ctr., No. 07-40776, 548 F.3d 375
(2nd Cir. 2008).
A husband and wife claimed that a city police
officer violated the Driver's Privacy Protection Act (DPPA), 18 U.S.C. Sec.
2724(a) by disclosing the wife's address to her former husband, against whom
she had obtained a restraining order. The jury returned a verdict for the
defendants, but a federal appeals court found that the plaintiffs were entitled
to a new trial because the trial court abused its discretion by failing to
provide the jury with the notice of claim form which was in evidence and
"central" to the plaintiffs' argument that the officer had falsified
his report on an incident occurring after the notice of claim in order to
create a potential defense to the lawsuit. Deicher v. Evansville, No. 07-2092,
2008 U.S. App. Lexis 20055 (7th Cir.).
A motorist who was given a speeding ticket
complained that she was subjected to "identity theft" after the local
county clerk published the ticket, containing personal information, including
her Social Security number, on the clerk's website. A federal appeals court
found that any alleged privacy interest did not involve a fundamental right and
was not sufficient to establish a violation of her 14th Amendment due process
rights from the publication. Lambert v. Hartman, No. 07-3154, 2008 U.S. App.
Lexis 4019 (6th Cir.).
Thirty-four middle school students claimed that
their privacy rights were violated by the installation and operation of video
surveillance cameras in athletic locker rooms at the school, which resulted in
them being videotaped while dressing and undressing. A federal appeals court
ruled that these actions violated the Fourth Amendment protection against
unreasonable search and seizures, particularly their fundamental constitutional
right not to expose their bodies to strangers of the opposite sex without it
being reasonably necessary for some legitimate and "overriding"
purpose. The court further found that the record did not show any concern for
safety and security that would make the intrusion involved reasonable. The
principal and assistant principal were not entitled to qualified immunity, but
school officials not involved in authorizing the videotaping, and who were not
aware of it, were granted such immunity. Brannum v. Overton County School
Board, No. 06-5931, 2008 U.S. App. Lexis 3496 (6th Cir.).
A woman arrested following an alleged
drunk-driving accident did not show that police officials and the city violated
her constitutional right to privacy when they disclosed her name, hometown,
photograph, phone number, and her husband's occupation (undercover officer)
after the charges were brought against her. Her husband was charged with
operating the vehicle while impaired, and she was charged with obstructing by lying
about who was driving the car, as well as resisting. Both she and her husband
pled no contest to the criminal charges. The appeals court found that criminal
suspects do not have a constitutional right of privacy concerning the
nondisclosure of the information the police released, including information in
the police report, especially information released in response to legitimate
inquiries from the press submitted under a Michigan state Freedom of
Information Act. Bailey v. City of Port Huron, No. 06-2375, 2007 U.S. App.
Lexis 25489 (6th Cir.).
In a prior decision, Anderson v. Blake, No.
05-6329, 2006 U.S. App. Lexis 28144 (10th Cir.), a federal appeals court ruled
that a police officer was not entitled to qualified immunity in lawsuit by rape
victim claiming that he improperly released a videotape of her rape to a
television station, which aired portions of it. Federal appeals court rejects
officer's arguments that the victim did not have a constitutionally protected
privacy interest in the contents of the tape, or that her privacy right was not
clearly established. On remand, a federal trial court dismissed the plaintiff's
federal right to privacy and state intrusion upon seclusion claims against the
reporter and television station owner. A federal appeals court found that the
plaintiff's allegations about the officer's involvement in the publication of a
portion of the videotape were not sufficient to show that the officer, the
reporter, and the television station owner acted jointly or that the private
parties acted under color of law. Anderson v. Suiters, No. 06-6134, 2007 U.S.
App. Lexis 20686 (10th Cir.).
The family of a person who died in fatal car
crash failed to show that the actions of police in dealing with them following
the accident violated their due process rights. No prior case recognized a due
process right concerning the manner in which a family is notified of the death
of a family member, and if there was any such right, it would only apply to
conduct that was shocking to the conscience. In this case, the police did not
act with deliberate indifference and their conduct was not conscience shocking.
They did use "deception" to first obtain a photograph of the victim
to aid in his identification, and did not tell the family he had died until
they had made the identification. A statement the police made to the media
concerning the accident was justified by the legitimate purpose of informing
the public about a fatal collision. Estate of Gadway v. City of Norwich, No.
3:05-CV-935, 2007 U.S. Dist. Lexis 72561 (D. Conn.).
Plaintiffs who claimed that Florida officials
sold personal information from their driver's licenses and/or vehicle
registrations to mass marketers failed to establish a claim for violation of
their constitutional rights, but they could pursue a claim under the federal
Driver Privacy Protection Act (DPPA), 18 U.S.C. Sec. 2721-2725 and 42 U.S.C.
Sec. 1983. The protections of the DPPA as to the privacy of driver's
license data were specific enough to clearly establish what conduct was
prohibited and thereby overcome any defense of qualified immunity. Collier v.
Dickinson, No. 06-12614, 2007 U.S. App. Lexis 3111 (11th Cir.).
In lawsuit challenging, on the basis of the
constitutional right of privacy, a city ordinance criminalizing a "live
sex act" business, the trial court improperly reached the merits of the
case, and ruled that the business owner's customers could not assert a claim
for relief under "any conceivable" set of allegations. Further
proceedings ordered. Fleck & Assocs., Inc. v. Phoenix, No. 05-15293, 471
F.3d 1100 (9th Cir. 2006) [N/R]
Maine state employee did not violate federal
constitutionally protected privacy rights by allegedly telling a man's daughter
confidential facts about her grandmother's estate when the facts ultimately
stemmed from documents filed in probate court which were public record. This
was true even if the state employee violated a statutory mandate of
confidentiality. Williams v. Baker, No. CV-05-183-B-W, 2006 U.S. Dist. Lexis
90192 (D. Maine).[N/R]
Police officer was not liable to domestic
violence victim for failing, while filling out paperwork to charge her
ex-boyfriend with violation of a protective order, to check off box to keep her
address confidential. The boyfriend, after his release from prison, allegedly
subsequently obtained a copy of the paperwork containing her current address,
and the victim accordingly feared that he would harm her, so she allegedly felt
compelled to move to a new address. The plaintiff failed to show, as required
for liability for violation of her right to privacy, that the officer acted
with deliberate indifference to her rights. Hanigan v. City of Kent, Case No.
C06-176, 2006 U.S. Dist. Lexis 89489 (W.D. Wash.). [N/R]
Police officer was not entitled to qualified
immunity in lawsuit by rape victim claiming that he improperly released a
videotape of her rape to a television station, which aired portions of it.
Federal appeals court rejects officer's arguments that the victim did not have
a constitutionally protected privacy interest in the contents of the tape, or
that her privacy right was not clearly established. Anderson v. Blake, No.
05-6329, 2006 U.S. App. Lexis 28144 (10th Cir.). [N/R]
Arkansas state police did not violate the privacy
rights of a state police investigator assigned to an embezzlement crime by
conducting an examination of a complaint by one of two victims of the crime
that the investigator had engaged in sexual relations with his wife, the other
victim. Sylvester v. Fogley, No. 05-3492, 2006 U.S. App. Lexis 25750 (8th
Cir.). [2006 LR Dec]
City was not liable for police officer's
allegedly wrongful display of nude photographs of a female murder victim to
persons not involved in the investigation. There was no showing that any
official city policy or failure to adequately train officers caused the
disclosure. Donohue v. Hoey, No. 02-1405, 109 Fed. Appx. 340 (10th Cir. 2004).
[N/R]
Motorist asserted a claim for violation of the
Driver's Privacy Protection Act ("DPPA"), 18 U.S.C. § 2721, after
police officer who pulled her over obtained private information from vehicle
licensing records concerning her and her husband, allegedly without a
permissible purpose for doing so, since he had no probable cause or reasonable
suspicion to "run the plate" of the vehicle. Luparello v.
Incorporated Village of Garden City, 290 F. Supp. 2d 341 (E.D.N.Y. 2003). [N/R]
Defendants who are not videotape service
providers, such as law enforcement officers and agencies or prosecutors, could
not be held liable under the Video Tape Privacy Protection Act (VPPA), 18
U.S.C. Sec. 2710 or the Tennessee Video Consumer Privacy Act, T.C.A. Sec.
47-18-2201 through 2205, for the disclosure and use of information relating to
an individual's rentals of videotapes. Both statutes, in attempting to protect
the privacy of those who rent videotapes from commercial businesses, do not
provide for remedies against any persons who are not video service providers.
Daniel v. Cantrell, 241 F. Supp. 2d 867 (E.D. Tenn. 2003). [N/R]
$325,00 settlement reached in the first case
brought under federal statute protecting the privacy of driver's license
records. Trial court held that statute creates a private cause of action
imposing vicarious liability on municipalities if employees or agents violate
it with "apparent authority," and that possible plaintiffs include
not only the driver, but also other family members sharing the same address who
might be subjected to stalking or harassment. Margan v. Niles, 00-CV-1201, 250
F. Supp. 2d 63, 2003 U.S. Dist. Lexis 3971 (N.D.N.Y.). [2003 LR Sep]
& [2003 LR May]
Sheriff's office did not violate the
privacy rights of a 13-year-old girl when it issued a press release stating
that she had engaged in consensual sex with an 18-year-old man whom she had met
on the internet. There was no reasonable expectation of privacy in the
statements she made to law enforcement officers and the press release was
"substantially true," defeating any defamation claim. Loeks v. Reynolds,
#01-1183, 34 Fed. Appx. 644 (10th Cir. 2002). [2002 LR Aug]
Family of deceased former police sergeant had no
claim for violation of the constitutional right to privacy or due process based
on police lieutenant's ordering of autopsy and photographs of the decedent's
body. His actions did not constitute a taking of property, and the surviving
family was not deprived of their father's body, or prevented from disposing of
it as they saw fit. Additionally, the body was not disturbed from a resting place.
Helmer v. Middaugh, 191 F. Supp. 2d 283 (N.D.N.Y. 2002). [N/R]
Police supervisor was entitled to qualified immunity
for state trooper's alleged videotaping of female civilian who was serving as a
model for a training video while she undressed in an office to prepare for her
role. Poe v. Leonard, #00-9024, 282 F.3d 123 (2nd Cir. 2002). [2002 LR Jun]
Decedent's family had no constitutionally
protected privacy interest in preventing officer from making public statements
containing information about his highly personal sexual behavior of an
allegedly autoerotic nature, and were not entitled to a "name-clearing
hearing." Livsey v. Salt Lake County, No. 00-4005, 275 F.3d 952 (10th Cir.
2001). [2002 LR May]
City's purported failure to remove the arrestee's
photo and arrest sheet from its records after they had been sealed under a
criminal procedural rule did not violate his constitutional right to privacy.
Crime victim's subsequent positive identification of plaintiff as the man who
shot him based on viewing the photo gave the officers a "complete
defense" to plaintiff's subsequent false arrest claim. Brown v. City of
New York, 735 N.Y.S.2d 21 (A.D. 2001). [N/R]
Officer's action in revealing an employee's
criminal record to his employer in the course of investigating a theft at the
workplace did not violate Massachusetts law concerning disclosure of criminal
offender record information. Bellin v. Kelley, 755 N.E.2d 1274 (Mass. 2001).
[N/R]
345:139 Washington state trial court enjoins web site
from publishing officers' Social Security numbers on- line, but refuses, on
First Amendment grounds, to order it to remove officers' names, addresses, and
information taken from public records. City of Kirkland v. Sheehan, No. 01-2-
09513-7 SEA, King County, Washington, Superior Court, May 10, 2001.
EDITOR'S NOTE: In a separate case, King County v.
Sheehan, 00-2-20170-2 SEA, King County Washington, Superior Court, on May 4,
2001, the county was ordered to pay this same website attorneys' fees of $13,716.55
in a case it brought seeking to enjoin the website from seeing personnel
information about the sheriff's office it had requested under the state's
freedom of information act.
The court in the City of Kirkland case, in ruling
that the publication of the officers' names and addresses on the web might be
protected by the First Amendment relied on a recent ruling in Planned
Parenthood of the Columbia/Williamette, Inc., v. American Coalition of Life
Activists, #99-35320, 244 F.3d 1007 (9th Cir. 2001), in which a federal appeals
court overturned, on First Amendment grounds, a judgment against persons
operating a website which had listed personal information about abortion
doctors and other supporters of abortion, some of whom had been attacked.
337:10 Officer's alleged threat to tell
18-year-old man's grandfather that he was gay would have violated the
constitutional right to privacy; federal appeals court rejects officer's motion
for qualified immunity despite lack of specific prior caselaw on the subject,
ruling that the general right to privacy was clearly established and covers all
"intimate facts of a personal nature." Sterling v. Borough of
Minersville, No. 99-1768, 232 F.3d 190 (3rd Cir. 2000).
325:12 Former prisoner could not sue New York for
alleged wrongful dissemination of his conviction record to his employer,
causing his firing; fact of conviction was a public record, available to all,
and there is no right to bring a lawsuit for damages under a state statute
protecting privacy in individual information. Lawrence v. State, 688 N.Y.S.2d
392 (Ct. Cl. 1999).
309:139 Failure of police department to return
arrest photos to arrestee's attorney after charges were dismissed did not
violate federally protected right to privacy, despite state statute mandating
such return; city not liable for subsequent arrest and acquittal of plaintiff
after robbery victim identified him from photo contained in mug book. Grandal
v. City of New York, 966 F.Supp. 197 (S.D.N.Y. 1997).
290:27 Sheriff's alleged disclosure, to private
citizen, of results of criminal records search of individual, did not violate
the constitutional right to privacy Cline v. Rogers, 87 F.3d 176 (6th Cir.
1996).
{N/R} Disclosure by officer and/or city that city
auditor had once pled guilty to felony theft charge did not violate auditor's
right to privacy, even if allegedly made to discredit his unfavorable audit of
police department; auditor had no legitimate expectation of privacy on his
criminal record despite subsequent expungement of record Eagle v. Morgan, 88
F.3d 620 (8th Cir. 1996).
{N/R} Rape victim did show that officer violated
a clearly established constitutional right to privacy by statements he made in
the course of his investigation Cantu v. Rocha, 77 F.3d 795 (5th Cir. 1996).
271:107 Officer's discussion of expunged sexual
abuse arrest and conviction during television broadcast did not violate school
teacher's federal constitutional privacy rights; issue of whether or not it
violated Utah state expungement statute was not determinative of federal civil
rights claim Nilson v. Layton City, 45 F.3d 369 (10th Cir. 1995).
268:51 Arrestee could sue arresting officer for
releasing to others information that he was HIV positive, even though test
results later turned out to be false ALA v. West Valley City, 26 F.3d 989 (10th
Cir. 1994).
Deputy sheriff who obtained consumer credit
bureau report on criminal suspect by requesting finance company employee to
obtain it was not liable for violation of federal Fair Credit Reporting Act;
deputy spelled out the purposes for which he sought the information, and
therefore did not obtain it under "false pretenses" Allen v. Calvo,
832 F.Supp. 301 (D.Or 1993).
Revealing female minor's deposition alleging sexual
abuse by her father to town board, despite officers' promises that it would be
kept confidential did not violate her federal constitutional right to privacy
when town had a legitimate interest in it because her father was a town
employee DiPalma v. Phelan, 81 NY 2d 754, 609 N.E.2d 131, 593 N.Y.S.2d 778
(1992).
Police chief was not liable for breaking
department's promise, to female minor sex crime victim, not to reveal her
identity to anyone outside of criminal investigation Di Palma v. Phelan, 578 N.Y.S.2d
948 (A.D. 1992).
Viewing by non-officers of videotape and photos
of autopsy of fourteen year old boy did not constitute invasion of privacy, but
boy's family could sue officers and city for infliction of emotional distress.
Williams v. City of Minneola, 575 So.2d 683 (Fla App. 1991).
Government interest in disclosure of facts of
crime outweighed privacy interest of estate and mother of stockbroker who
apparently killed family and committed suicide McCambridge v. City of Little
Rock, 766 S.W.2d 909 (Ark 1989).
FBI investigation of elementary school student
who corresponded with foreign governments did not infringe first or fourth
amendment rights or violate privacy act Patterson v. FBI, 705 F.Supp. 1033
(D.N.J. 1989).
Woman claims officer offered to drop traffic
charges if she would grant sexual favors; sues police chief for alleged
improper investigation of her background Carbone v. Horner, 682 F.Supp. 824 (WD
Penn 1988).
No constitutional violation for police detective
to remove "confidential" photograph from suspect's youthful offender
file for use in unrelated investigation McCrary v. Jetter, 665 F.Supp. 182
(E.D.N.Y. 1987). Police chief not liable for failure to approve permit for
topless dancing Bradfield v. Blesma, 675 F.Supp. 382 (WD Mich 1987).
Forced entry to look for child was proper
Duquette v. Godbout, 471 A.2d 1359 (RI 1984).
Statute allows public disclosure of police
reports Maloney v. Caffrey, 596 F.Supp. 1164 (D.Conn 1984).
No liability to peace officer executing search
warrant when news media entered building and was accused of trespassing
Anderson v. WHEC-TV, 461 N.Y.S.2d 607 (App. 1983).
Police officers executing warrant could be liable
for trespass and assault and battery Kuykendall v. Turner, 301 S.E.2d 715 (N.C.
App. 1983).