Civil Liability
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Search and Seizure: Media Presence

     Monthly Law Journal Article: Civil Liability from Media Activities During Law Enforcement Operations2008 (4) AELE Mo. L.J. 101.

    A man incarcerated for robbery, unlawful use of a weapon, mob action, and firing a firearm at an occupied vehicle was released, then returned to prison for domestic battery. Discharged on supervised release, officers and a parole agent carried out a compliance check at 6:30 a.m. because they had received a tip about guns at the residence.  When the officers arrived, the man took several minutes to open the door, calling his brother at work to come there. The officers handcuffed the man, and also handcuffed the brother when he arrived. The lawsuit claimed that neither of them was allowed to observe the search, and that the officers pulled out insulation, put holes in the walls, ripped the couch, and broke hinges. He also claimed that an officer wrestled him to the ground and took his keys, including the door to his locked bedroom. Both men were arrested after the search of their apartment revealed an unregistered firearm and ammunition. While one arrestee was acquitted of gun possession charges and the charges were dismissed as to the other arrestee, a grand jury indictment defeated one arrestee's state law malicious prosecution claim because the indictment broke the chain of causation.  The claim that Fourth Amendment rights were violated due to property damage incurred during the search failed because four of ten officers involved in the search were sued, but no evidence of the identity of those actually responsible for the property damage was presented. Colbert v. City of Chicago, #16-1362, 2017 U.S. App. Lexis 4486 (7th Cir.).

     Journalists claimed that FBI agents, while executing a search warrant at a condominium building, grabbed and assaulted them, and used pepper spray and metal batons against them when they entered a gated area. The agents were using the building's fences and security structure in an attempt to restrict the flow of people into the area, and allegedly did not give them a chance to exit before using force against them. The court found that there was no special First Amendment right of access by the press to enter property that was not in the public domain. The court found, however, that some of the journalists' Fourth Amendment claims were improperly dismissed. The appeals court ruled that "mere obstinance" by a crowd did not justify the use of force when there is no showing that crowd members posed a public safety threat or that any other law enforcement considerations were at risk. The court ruled, therefore, that Fourth Amendment excessive force claims by individual journalists could proceed, while the rejection of all First Amendment claims was upheld. Asociacion de Periodistas de Puerto Rico v. Mueller, No. 07-2196, 2008 U.S. App. Lexis 12783 (1st Cir.).
     New York court declines to dismiss claims against a production company and two broadcasting companies alleging that in the course of filming a "reality-based" television program showing police on patrol they encouraged police to use excessive force, adopting a common plan to use excessive which resulted in injuries suffered when a police detective fired his gun, injuring a woman during the execution of a search warrant. Rodriguez v. City of New York, No. 2004-11173 (Index No. 20154/04), 2006 N.Y. App. Div. Lexis 15242 (2nd Dept.). [N/R]
     Subjecting a homeowner, following a search of his home and his arrest for dealing in harmful materials to a minor and a drug offense, to a "perp walk" resulting in him being photographed as he was led from his home to a police vehicle did not violate his Fourth Amendment rights. The media representatives did not enter the homeowner's property, and the officers' actions were reasonable, since the residence may have been used to victimize young women and expose them to sex and drugs. Publication of the photos of the arrestee's face could help alert other possible victims and encourage them to provide information to aid the investigation. Gibbons v. Lambert, No. 2:02 CV 01244, 358 F. Supp. 2d 1048 (D. Utah 2005). [N/R]
     County's action in videotaping county correctional officer when he was escorted to a car to be transported to a police station for booking in a "perp walk" manner was a "seizure" under the Fourth Amendment, but his privacy interest in not having the videotape broadcast to the public is found to be outweighed by a legitimate governmental purpose in informing the public about efforts to stop abuse of disability benefits by its employees and to deter others from attempting similar crimes. Caldarola v. County of Westchester, No. 01-7457, No. 01-7457, 343 F.3d 570 (2nd Cir. 2003). [2003 LR Dec]
     346:158 Officer was entitled to qualified immunity for subjecting arrestee to "perp walk" displaying him to the media in 1997, as the right not to be displayed in this manner was not then clearly established. Lyde v. New York City, 145 F. Supp. 2d 350 (S.D.N.Y. 2001).
     337:12 UPDATE: Federal appeals court rules that "perp walks"--parading arrestees for the sole purpose of having them photographed--violate the Fourth Amendment. Lauro v. Charles, #99-7239, 219 F.3d 202 (2nd Cir. 2000).
     326:19 Publishing company was not entitled to an injunction against statute placing restrictions on the release of and use of information concerning the names and addresses of arrestees, which provided that such addresses could not be used for the sale of any products or services; statute on its face did not restrict commercial speech, but merely regulated the release of information in the hands of law enforcement. Los Angeles Police Dept. v. United Reporting Publishing Corp., #98-678, 120 S. Ct. 483 (1999).
     319:99 U.S. Supreme Court unanimously holds that allowing members of the news media to enter private residences along with law enforcement officers during the execution of arrest or search warrants violates the Fourth Amendment rights of the residents; individual defendant officers were entitled to qualified immunity in two cases before the Court. Wilson v. Layne, #98-83, 119 S.Ct. (1999); Hanlon v. Berger, No. 97-1927, 119 S.Ct. 1706 (1999).
     317:77 Federal trial court rules that "perp walks"--parading arrestees in front of the media for the sole purpose of having them photographed--violates the Fourth Amendment. Lauro v. City of New York, 39 F.Supp. 2d 351 (S.D.N.Y. 1999).
     314:19 U.S. Supreme Court to examine whether allowing media to accompany law enforcement in executing arrest or search warrants on private property violates Fourth Amendment and availability of qualified immunity, at this time, for such actions. Wilson v. Layne, #96-1185, 141 F.3d 111 (4th Cir. 1998), reported in Liability Reporter No. 311, p. 174 (Nov. 1998), cert. granted, #98-83, 119 S.Ct. 443 (1998); Berger v. Hanlon, #96-35251, 129 F.3d 505 (9th Cir. 1997), cert. granted, Hanlon v. Berger, #97-1927, 119 S.Ct. 443 (1998).
     Editor's Note: For another recent decision in this area, see Swate v. Taylor, 12 F.Supp. 2d 591 (S.D. Tex. 1998) (DEA agent violated Fourth Amendment rights of private methadone clinic owner by allowing TV crew to come onto premises while search warrant was being executed, and was not entitled to qualified immunity).
     311:174 Homeowners had no "clearly established" right in 1992 to insist that officers not bring members of the media into their home while executing a valid arrest warrant; officers were therefore entitled to qualified immunity in federal civil rights lawsuit. Wilson v. Layne, 141 F.3d 111 (4th Cir. 1998).
     304:61 Federal appeals court rules that having media representatives with audio and video taping equipment accompany federal agents in executing search warrant on ranch could violate Fourth Amendment; court expresses concern that search and recording was planned for commercial and entertainment purposes rather than purely for legitimate law enforcement purposes. Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997).
     301:6 Officers were entitled to qualified immunity for allowing reporters with cameras to accompany them while executing arrest warrant in private home. Wilson v. Layne, 110 F.3d 1071 (4th Cir. 1997). Editor's Note: " See also Parker v. Boyer, 93 F.3d 445 (8th Cir. 1996), cert. denied, 117 S.Ct. 1081 (1997), finding that the officers were entitled to qualified immunity for allowing media representatives to accompany them.

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