Lauro v. Charles

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-7239,DEFENDANT-APPELLAN,V,THE,PLAINTIFF-APPELLE
• Citation: 219 F.3d 202
• Parties: (2nd Cir. 2000) JOHN LAURO, JR.,MICHAEL CHARLES,CITY OF NEW YORK AND THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, DEFENDANTS
• Court: U.S. Court of Appeals — Second Circuit

Page 202

219 F.3d 202 (2nd Cir. 2000)

JOHN LAURO, JR., PLAINTIFF-APPELLEE,

V.

MICHAEL CHARLES, DEFENDANT-APPELLANT,

THE CITY OF NEW YORK AND THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, DEFENDANTS.

Docket No. 99-7239

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: February 10, 2000

July 28, 2000

Appeal from an order of the United States District Court for the Southern District of New York (Allen G. Schwartz, Judge) denying in part defendant-appellant Michael Charles's motion for summary judgment and granting in part plaintiff-appellee John Lauro's cross-motion for partial summary judgment. The district court held that Charles violated Lauro's Fourth Amendment rights by forcing Lauro, while under arrest, to undergo a staged "perp walk," and that Charles was not entitled to qualified immunity. See Lauro v. City of New York, 39 F. Supp. 2d 351 (S.D.N.Y. 1999).

Reversed and remanded.

Philip J. Dinhofer, New York, Ny, for Plaintiff-Appellee.

Edward F.X. Hart, Office of the Corporation Counsel of the City of New York, New York, NY (Michael D. Hess, Corporation Counsel of the City of New York, Leonard Koerner, and Orrit Hershkovitz, on the brief) for Defendant-Appellant.

Nathan E. Siegel, Abc, Inc., New York, Ny, submitted a brief on behalf of amici curiae Abc, Inc., Associated Press, Cbs Broadcasting Inc., The Daily News, National Broadcasting Company, Inc., Nyp Holdings, Inc., Reporters Committee for Freedom of the Press, Tribune Broadcasting Company, and The Washington Post Company.

Before: Meskill, Walker, and Calabresi, Circuit Judges.

Calabresi, Circuit Judge

May the police constitutionally force an arrested person to undergo a staged "perp walk" for the benefit of the press, when the walk serves no other law enforcement purpose? We hold that such a staged perp walk exacerbates the seizure of the arrestee unreasonably and therefore violates the Fourth Amendment. But we also hold that, because the Fourth Amendment right at issue was not clearly established until today's decision, the defendant police officer in this case is entitled to qualified immunity.

I.

The "perp walk" - as it is popularly known - is a widespread police practice in New York City in which the suspected perpetrator of a crime, after being arrested, is "walked" in front of the press so that he can be photographed or filmed. See Benjamin Weiser, Judge Condemns Policy of Parading Suspects Past Cameras, N.Y. Times, Feb. 26, 1999, at B1. The perp walk both publicizes the police's crime-fighting efforts and provides the press with a dramatic illustration to accompany stories about the arrest. See id. Not surprisingly then, police and press often cooperate to ensure that perp walks occur. But while the walks arguably benefit both the police and the media, their effect on the "walked" suspects can be less benign. Although a perp walk commonly occurs before any judicial determination that a suspect has actually committed the crime for which he was arrested, or even that there is enough evidence to justify a trial, a suspect in handcuffs being led into a station house is a powerful image of guilt. Indeed, the perp walk has been described as "a ritual degradation that publicly signals [the arrestee's] change in status from an ordinary citizen." John Tierney, The Big City: Even Perps May Prefer Walk of Fame, N.Y. Times, Mar. 1, 1999, at B1 (quoting Prof. David Kertzer) (internal quotation marks omitted).

Perp walks come in several varieties. See generally Blaine Harden, Parading of Suspects is Evolving Tradition, N.Y. Times, Feb. 27, 1999, at B1 (discussing the history of the perp walk in New York City). Commonly, the arrestee is filmed while in the normal course of being transferred by the police from one location to another. In such cases, the police may or may not notify the press that the arrestee will be moved, and is thus available for photographing, at a particular time. See id. These walks are very different from staged perp walks. In a staged walk, the police take the suspect outside the station house, at the request of the press, for no reason other than to allow him to be photographed. The perp walk to which the plaintiff here was subjected was of this sort.

John Lauro, the plaintiff in this case, was a doorman at an Upper East Side apartment building, where Matthew Eberhart was a tenant. Eberhart, who was going on vacation, asked Lauro to deliver his mail and water his plants while Eberhart was away. Eberhart gave Lauro written authorization to enter the apartment for that purpose, and gave him the keys. Just before leaving, however, Eberhart spoke to Paul Molnar, the building superintendent, who told him that Lauro was suspected of committing thefts in the building. Eberhart decided to place a wireless camera in his bedroom; the camera transmitted to a television monitor in Molnar's apartment, and was there connected to a video cassette recorder. When Eberhart returned from vacation, he and Molnar viewed the resulting videotape. It showed Lauro entering the Eberharts' bedroom several times and opening dresser drawers and cabinets. The video did not show Lauro stealing anything, and Eberhart did not find anything missing from the apartment. See Lauro v. City of New York, 39 F. Supp. 2d 351, 354-56 (S.D.N.Y. 1999).

Eberhart contacted various TV stations to see if they were interested in broadcasting the videotape, and Fox 5 News eventually purchased the tape for $200. Eberhart then called the police and filed a complaint against Lauro. After being persuaded by detectives to accompany them from his home in New Jersey to New York, Lauro was arrested by the defendant, Detective Michael Charles, and charged with burglary, petit larceny, and possession of stolen property.¹ See id. at 356-57.

About two hours after Lauro was brought to the precinct squad room by Detective Charles, Charles received a telephone call from the Police Department's Office of the Deputy Commissioner of Public Information ("DCPI") telling him that the media were interested in Lauro's case and that Lauro should be taken on a perp walk. Charles handcuffed Lauro and walked him out the front door and outside the station house. He then placed Lauro in an unmarked police car, drove around the block, removed Lauro from the car and walked him back into the station house. The perp walk was filmed by a television crew from Fox 5 News, and footage of the walk, along with excerpts from the videotape made by Eberhart, was subsequently broadcast by Fox 5 News. See id. at 357.

Lauro brought suit against Charles, the City of New York, and the Police Department² under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment, the Sixth Amendment, the Eighth Amendment, and the Due Process Clause of the Fourteenth Amendment, as well as numerous violations of New York state law, stemming from his arrest and from the perp walk. The defendants moved for summary judgment, and Lauro cross-moved for partial summary judgment on the issue of liability.

The district court granted defendants' motion in part³ and granted Lauro's motion in part. It held that Lauro was entitled to partial summary judgment on liability because "[t]he perp walk conducted with plaintiff was a seizure that intruded on plaintiff's privacy interests and personal rights, and was conducted in a manner designed to cause humiliation to plaintiff with no legitimate law enforcement objective or justification," and therefore was unreasonable as a matter of law under the Fourth Amendment. Id. at 363. The Fourth Amendment was implicated, the court found, for two reasons. "First, plaintiff's control over his own body was curtailed significantly as he was handcuffed and paraded outside of the precinct." Id. Second, "intangibles such as plaintiff's own image and the sound of his voice were also seized... in a manner that implicates the Fourth Amendment." Id. Moreover, the court held that these actions were unreasonable, since the defendants had not advanced any legitimate law enforcement justification for the perp walk, which "had the effect only of humiliating plaintiff, assisting the media in sensationalizing the facts of his case, and allowing Det. Charles to appear on television." Id. at 364. Accordingly, the court concluded, the Fourth Amendment had been violated. See id. at 365.

The court also held that Detective Charles was not entitled to qualified immunity. It noted that "there is no reported decision that expressly forbids the use of perp walks." Id. at 368. Nevertheless, it found that the decision of this court in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), which held that the presence of the media at a search of a private home violated the Fourth Amendment, see id. at 683, clearly established "that making use of state resources and police force solely to aid the press in sensationalizing and humiliating a criminal suspect at the expense of the suspect's privacy rights, without any legitimate law enforcement interest, is constitutionally unacceptable." Lauro, 39 F. Supp. 2d at 368. The court therefore denied Detective Charles's motion for summary judgment as to the Fourth Amendment claim arising out of the perp walk. See id. at 369.⁴

Detective Charles now appeals.

II.

Because Detective Charles seeks review of the district court's denial of his assertion of qualified immunity, and because only questions of law are involved, we have jurisdiction under the collateral order doctrine to hear Charles's appeal. See Cartier v. Lussier, 955 F.2d 841, 844 (2d Cir. 1992). We review the district court's denial of summary judgment de novo. See Martinez v. Simonetti, 202 F.3d 625, 631 (2d Cir. 2000).

The Supreme Court has instructed that, in reviewing a district court's grant or denial of summary judgment to a defendant on qualified immunity grounds, "the better approach... is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at...