Camfield v. City of Ok.

Decision Date04 May 2001
Docket NumberNo. 00-6054,00-6054
Citation248 F.3d 1214
Parties(10th Cir. 2001) MICHAEL D. CAMFIELD, Plaintiff-Appellant, v. CITY OF OKLAHOMA CITY, a municipal corporation; BRITT HIGH, SE KIM, BILL CITTY, GREGORY A. TAYLOR, and MATT FRENCH, individually and in their official capacities as police officers for defendant City of Oklahoma City; ROBERT MACY, individually and in his official capacity as District Attorney for Oklahoma County, Oklahoma, joined for purposes of declaratory and injunctive relief; SAM GONZALES; PATRICIA L. HIGH, individually and in her official capacity as Assistant District Attorney for Oklahoma City, Oklahoma, joined for purposes of declaratory and injunctive relief and damages as appropriate; M.T. BERRY, as Chief of Police of the City of Oklahoma City in his official capacity, Defendants-Appellees
CourtU.S. Court of Appeals — Tenth Circuit

Appeal from United States District Court for the Western District of Oklahoma

(D.C. No. CIV-97-1097-T)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Micheal C. Salem, Salem Law Offices, Norman, Oklahoma (Vincent J. Liesenfeld, Salem Law Offices, Norman Oklahoma; and Mark Henricksen, Henricksen & Henricksen, El Reno, Oklahoma, for the American Civil Liberties Union of Oklahoma, with him on the briefs), for the appellant.

Stacy Haws Felkner (Robert E. Manchester and Susan Ann Knight with her on the brief), Manchester & Pignato, P.C., Oklahoma City, Oklahoma, for the appellees Britt High, Se Kim, Matt French, and Gregory Taylor.

John M. Jacobsen, First Assistant District Attorney (Robert H. Macy, District Attorney, with him on the brief), Oklahoma City, Oklahoma, for the appellees Robert H. Macy and Patricia High.

Richard C. Smith, Litigation Division Head (William O. West, Municipal Counselor and Tina A. Hughes, Assistant Municipal Counselor, with him on the brief), Oklahoma City, Oklahoma, for the appellees City of Oklahoma City, Sam Gonzales, Bill Citty, and M.T. Berry.

Before BRISCOE, MURPHY, Circuit Judges, and CROW, * District Judge.

BRISCOE, Circuit Judge

This appeal arises from a well-publicized decision by the Oklahoma City Police Department (OCPD) to remove the Academy Award-winning film The Tin Drum from public access after a state judge opined in an ex parte hearing that the movie contained child pornography in violation of Oklahoma law. Michael Camfield, whose rented copy of the movie was obtained from him at his apartment by three OCPD officers, sued the City of Oklahoma City (City), several members of the OCPD and two state prosecutors under 42 U.S.C. 1983, alleging violations of his First, Fourth and Fourteenth Amendment rights. He also sought declaratory relief under the Declaratory Judgment Act, 28 U.S.C. 2201, and civil damages under the Video Privacy Protection Act (VPPA), 18 U.S.C. 2710.

At the conclusion of the litigation, which included a jury trial, Camfield obtained partial declaratory relief and statutory damages on his VPPA claim, but was unsuccessful on his section 1983 claims and his attempt to have Oklahoma's child pornography statute, Okla. Stat. tit. 21, 1021.2, struck down as unconstitutional. He appeals the district court's summary judgment order, various evidentiary rulings and jury instructions, and the denial of his motion to alter or amend the judgment. We have jurisdiction under 28 U.S.C. 1291 and affirm in part and dismiss in part.

I.

The Tin Drum, a German language film with English subtitles, received the 1979 Academy Award for best foreign language film and shared the Palme D'Or Award at the Cannes International Film Festival that same year. Based on the 1959 novel of the same name by Gnter Grass, the film has been described as a complex allegorical fantasy intended to symbolize the rise of Nazism and the corresponding decline of morality in Nazi Germany. The movie opens in Danzig in the 1930s when the main character, Oskar Matzerath, decides to stop growing at the age of three in order to "protest against the absurdities and obscenities of the adult world" during the rise of Nazism. App. Vol. 17 at 5544. Throughout the approximately eighteen years depicted in the film, Oskar remains diminutive in size and appears to be a very young boy, while those around him continue to age normally. Not until the end of the film and near the end of World War II, when Oskar is twenty-one years old, does he express a desire to resume growing again. The movie, which has been in public circulation around the world for over twenty years, has received critical acclaim and been discussed in several academic articles and books related to film studies.

In June 1997, a citizen complained to OCPD Maj. William Citty that The Tin Drum contains child pornography. Maj. Citty contacted vice division Lt. Gregory Taylor, advised him of the complaint and asked him to obtain a copy of the movie. Lt. Taylor did so and assigned the case to Sgt. Se Kim. Sgt. Kim watched the movie, observed certain scenes he believed contained child pornography and, in accordance with a common vice division practice, took the movie to the county courthouse to request judicial confirmation of his opinion. A state judge agreed to watch the movie and give his own opinion.

On the morning of June 24, 1997, Sgt. Kim and Sgt. Britt High met with the judge, who advised the officers he believed The Tin Drum contained child pornography in violation of Okla. Stat. tit. 21, 1021.2. The judge communicated his decision orally and did not issue a written ruling or specify which scenes violated the law. However, the judge later explained that he based his opinion on three scenes in the movie, which have been referred to in this litigation as (1) the bathhouse scene, (2) the bedroom scene, and (3) the sitting room scene. All three scenes portray Oskar and a female character named Maria Matzerath as being sixteen years old, although at the time of filming the actor playing Oskar was eleven years old and the actress playing Maria was twenty-four. According to the judge, the bathhouse scene shows Oskar "engaged in or portrayed, depicted or represented to be engaging in an act of cunnilingus with" Maria. App. Vol. 9 at 2704. In the bedroom scene, Oskar "begins to engage in or is portrayed, depicted, or represented as engaging in an act of sexual intercourse with" Maria. Id. Finally, in the sitting room scene, Oskar observes Maria and an adult male "engaged in or portrayed, depicted or represented as engaging in sexual intercourse" on a couch. Id. at 2705.

Later that day, Lt. Taylor notified Maj. Citty of the judge's ruling. Maj. Citty then contacted OCPD Police Chief Sam Gonzales, told him about the judge's decision, and said he was going to have his officers confer with the district attorney's office to decide what to do next.

The next day, on June 25, 1997, Sgt. High proposed a plan in which the officers would go to video stores in Oklahoma City that rented The Tin Drum and ask the employees to voluntarily relinquish their store's copies of the movie; if any copies were checked out, the officers would ask the employees to provide each renter's name and address. Sgt. High had already mentioned this voluntary surrender plan to his wife, Assistant District Attorney Patricia High, who handled obscenity and child pornography cases for the Oklahoma County District Attorney's Office, and she voiced no objections. After being told of the plan, Maj. Citty told Lt. Taylor to arrange a meeting with ADA High to discuss the matter further. ADA High could not meet with the officers due to her trial schedule, but she told Lt. Taylor over the telephone that the plan was fine with her and that warrants were unnecessary as long as the officers sought voluntary surrender of the videotapes. At Lt. Taylor's request, she also called Maj. Citty and reconfirmed her approval of the plan. At the end of the conversation, Maj. Citty asked ADA High to speak directly with District Attorney Robert Macy about the plan. ADA High told DA Macy that the OCPD was planning to obtain the videos through voluntary consent, unless the movies had already been rented, in which case the officers would ask the persons renting the movie to voluntarily surrender their copies. When asked if he had any problems with the plan, DA Macy said "no, probably not." App. Vol. 12 at 3655. Later that afternoon, Maj. Citty also spoke to DA Macy and asked if the OCPD should remove the film from public access. DA Macy responded "something like that." App. Vol. 8 at 2302. Maj. Citty then called Lt. Taylor and directed him to implement the plan for voluntary relinquishment of The Tin Drum. Maj. Citty reiterated that the videotapes must be obtained totally voluntarily and that if cooperation was not forthcoming, the officers should leave and take steps to obtain a warrant.

That evening, Sgt. High, Sgt. Kim, and a third officer, Sgt. Matt French, went to several video stores in Oklahoma City and obtained all available copies of The Tin Drum. They also asked for and received the names and addresses of several customers who were renting the movie. One of those customers was Michael Camfield, and the officers went to his apartment to ask for his copy of the movie. Camfield is the Development Director of the American Civil Liberties Union of Oklahoma. He had recently learned of the controversy surrounding The Tin Drum and was watching the film to formulate rebuttals and policy responses on behalf of the ACLU when the officers knocked on his door. Sgt. High told Camfield that the film contained child pornography under Oklahoma law; Camfield responded that he disagreed with the judge's determination. A "great debate" concerning the artistic merits of the movie ensued, App. Vol. 21 at 6724, but Camfield eventually turned over his copy of the videotape to the officers. As a result of the voluntary surrender plan, the OCPD removed a total of nine copies of the movie from public circulation. No warrants were issued for any of...

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