___________
No. 95-3988
No. 95-4075
___________
Sandra Parker, Individually, *
and as next friend of Dana M. *
Parker, and Dana M. Parker, *
*
Appellees, *
*
v. *
*
Rodney Boyer, Dan Dell, and *
Simon Risk, *
*
Appellants. *
*
Sandra Parker, Individually, *
and as next friend of Dana M. * Appeals from the United States
Parker, and Dana M. Parker, * District Court for the Eastern
* District of Missouri.
Appellants, *
*
v. *
*
Multi-Media KSDK, Inc., *
*
Appellee. *
*
___________
Submitted: June 10, 1996
Filed: August 16, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD,
Circuit Judge, and ROSENBAUM,* District Judge.
___________
*The HONORABLE JAMES M. ROSENBAUM, United States District
Judge for the District of Minnesota, sitting by
designation.
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Sandra and Dana Parker made claims under 42 U.S.C. § 1983 and
under state law against police officers who conducted a search of
their home. They made similar claims against a television station
whose reporting crew entered the house after the police did. The
district court granted summary judgment for the Parkers against
three police officers on their fourth-amendment claims and granted
summary judgment in favor of the television station. In light of
the disposition of the federal claims the district court declined
jurisdiction over the supplemental state-law claims. See Parker v.
Clarke, 905 F. Supp. 638 (E.D. Mo. 1995). The three police
officers and the television station appealed to this court. We
reverse, on grounds of qualified immunity, the district court's
finding of liability against the officers. We affirm the district
court's judgment in favor of the television station because the
reporting crew was not acting under color of state law when it
entered the Parkers' house.
I.
We will summarize the district court's findings of fact, with
which the parties seem to have no dispute. A reporter from KSDK,
a television station in St. Louis, contacted the St. Louis police
and told them that he was interested in developing a television
news story about the police department's efforts to eradicate
illegal weapons. Sometime later, the police told the reporter that
a weapons investigation was in progress that he might be interested
in covering. The investigation centered on the activities of one
Travis Martin, a man who resided in a house in which Sandra and
Dana Parker also lived. Sgt. Simon Risk later informed Officer
Rodney Boyer that KSDK personnel would accompany him on his shift
that night, and KSDK personnel rode to the scene in a police car
with Officer Boyer and Officer Dan Dell. After detaining Mr.
Martin outside, Sgt. Risk and six other officers, including Boyer
and Dell, executed the search warrant at the Parkers' residence.
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They entered through an unlocked front door, and the KSDK personnel
followed the police into the house. Although the police discovered
two weapons and several substances believed to be cocaine, no
charges were filed against Mr. Martin or anyone else as a result of
the search. KSDK broadcast the tapes that it made at the Parkers'
residence on several news programs.
As the district court noted, the police did not give the KSDK
personnel any instructions or directions before the search, nor did
the police impose any limitations on their conduct. Neither the
police nor KSDK personnel sought or obtained the Parkers'
permission to videotape the search or broadcast the resulting
videotape. The district court also noted that the chief of police
testified that his department's policy was to require the media to
obtain permission to videotape private citizens whose houses were
being searched. If such permission had not been obtained, he
testified, the supervising officer on the scene was not supposed to
allow the media to enter a private residence, because, the chief
believed, such an entry would constitute a trespass.
II.
We deal first with the Parkers' claims against the police
officers.
Government officials are entitled to qualified immunity from
suit for civil damages if their conduct does not violate clearly
established federal rights of which a reasonable person would have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Jones v.
Coonce, 7 F.3d 1359, 1362 (8th Cir. 1993). The issue here is
whether reasonable police officers would have known that permitting
a television crew to enter a house during the execution of a search
warrant would violate a clearly established fourth-amendment right.
Though we have no case on point, and the Supreme Court has not
provided specific guidance on the question, most courts have
rejected the argument that the United States Constitution forbids
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the media to encroach on a person's property while the police
search it. Avenson v. Zegart, 577 F. Supp. 958 (D. Minn. 1984);
Moncrief v. Hanton, 10 Med. L. Rptr. 1620 (N.D. Ohio Jan. 6, 1984);
Higbee v. Times-Advocate, 5 Med. L. Rptr. 2372 (S.D. Cal. Jan. 9,
1980); Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (Wis. Ct.
App. 1980). On the other hand, a recent case held that clearly
established constitutional law forbids the police to permit the
media to enter a home during a search. Ayeni v. CBS, Inc., 848 F.
Supp. 362 (E.D.N.Y. 1994), aff'd, Ayeni v. Mottola, 35 F.3d 680 (2d
Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995); see also
Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995) (clearly
established constitutional law prohibited police from bringing a
telephone company employee into a home to conduct an independent
general search for items not identified in any warrant).
In assessing claims of qualified immunity, we are of course
required to examine the state of the relevant law at the time the
officials committed the acts of which the plaintiffs complain.
Harlow, 457 U.S. at 818-19; Mitchell v. Forsyth, 472 U.S. 511, 530
(1985). Because both Ayeni and Buonocore were decided after the
police in this case executed their search, those cases cannot weigh
in the balance against a finding of qualified immunity. Even if we
believed that those two cases were entitled to consideration, they
would appear to us to indicate at most only the beginnings of a
trend in the law. Nor do we think it self-evident that the police
offend general fourth-amendment principles when they allow members
of the news media to enter someone's house during the execution of
a search warrant. Accordingly, we cannot say that the kind of
conduct in which police engaged in this case was a violation of a
clearly established constitutional principle of which the police,
at the time they executed their search warrant, should have been
aware. The district court therefore erred in concluding that the
police officers did not enjoy qualified immunity.
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III.
We turn now to the Parkers' claims against KSDK.
"The traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised power
`possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.'" West
v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v.
Classic, 313 U.S. 299, 326 (1941)); Gentry v. City of Lee's Summit,
10 F.3d 1340, 1342 (8th Cir. 1993). The requirement of state
action in suits for alleged deprivation of civil rights "preserves
an area of individual freedom by limiting the reach of federal law
and federal judicial power." Lugar v. Edmondson Oil Co., 457 U.S.
922, 936 (1982). The injury complained of must have been caused by
the exercise of some right or privilege created by the state, by a
rule of conduct imposed by the state, or by a person for whom the
state is responsible. Id. at 937. The Parkers appear to argue
only that KSDK exercised a right or privilege created by the state
when they entered the house.
It is undisputed that KSDK acted independently of the police
in deciding to enter the house and videotape the events there and
that neither KSDK nor the police assisted the other in the
performance of their separate and respective tasks. The KSDK
personnel did not execute the search warrant and they entered the
house after the police did. The television station was there for
reasons of its own and was engaged in a mission entirely distinct
from the one that brought the police to the house. Seizing an
opportunity to trespass is not the same as invoking a right or
privilege. We agree with the district court that "[a]t most,
KSDK's acts were committed parallel to and contemporaneous with the
police officers' exercise of privileges under state law in the
execution of a lawfully obtained search warrant," 905 F. Supp. at
642, and that KSDK was not exercising a right or privilege created
by the state when it decided to enter the Parkers' home to record
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the events taking place there. KSDK's entry into the Parkers'
house and videotaping the events that occurred there was therefore
not an act committed under color of state law. See Lugar, 457 U.S.
at 936.
IV.
For the foregoing reasons, we affirm the judgment of the
district court in part, reverse it in part.
ROSENBAUM, District Judge, concurring specially.
I join the Court's opinion, but write separately to address
the constitutional question underlying the issue of qualified
immunity. In my view, our jurisprudence demands a first
determination of whether the claimed constitutional right, in fact,
exists. We have missed this required first step in the qualified
immunity analysis.
This court has consistently ruled that, "[i]n order to
determine whether a defendant is entitled to qualified immunity, we
engage in a two-part analysis." Manzano v. South Dakota Dep't of
Social Servs., 60 F.3d 505, 509 (8th Cir. 1985) (citing Boyd v.
Knox, 47 F.3d 966, 968 (8th Cir. 1985)); see also Siegert v.
Gilley, 500 U.S. 226, 231-32 (1991). "First, we must determine
whether the plaintiff has alleged the violation of a constitutional
right." Manzano, 60 F.3d at 509. In my view, we have neglected
this determination. It is not until we have made this required
decision that we analyze whether such right was clearly established
at the time of its alleged violation. Manzano, 60 F.3d at 509.
I would find, consistent with Ayeni v. Mottola, 35 F.3d 680,
686 (2d Cir. 1994), cert. denied, 115 S. Ct. 1689 (1995), that
police officials executing a search warrant violate a resident's
Fourth Amendment rights, when they admit representatives of the
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public media into a private citizen's home, without first securing
the resident's express consent.
Having recognized this right, I would join the court and
determine these officers did not violate a constitutional right
which was clearly established at the time they allowed the
television news crew to enter the Parkers' home.
RICHARD S. ARNOLD, Chief Judge, concurring in part and dissenting
in part.
I join all but part III of the Court's opinion. With respect
to the issue decided in that portion of the opinion, having to do
with whether KSDK's employees were state actors for purposes of 42
U.S.C. § 1983, I respectfully dissent. In my view, the news crew
acted in concert with the police in entering the Parkers' home.
They were "'willful participants[s] in joint activity with the
State or its agents . . ..'" Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970), quoting United States v. Price, 383 U.S. 787, 794
(1966). The news crew came to the location with the police and
could not have entered if the police had not done so first. They
did not simply happen along the street at the time that a search
was being conducted.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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