Anderson v. Blake

• Decision Date: 14 November 2006
• Docket Number: No. 05-6329.,05-6329.
• Citation: 469 F.3d 910
• Parties: Aundra ANDERSON, an individual, Plaintiff-Appellee, v. Don BLAKE, individually and as a state actor police officer for the City of Norman, Oklahoma, a municipal corporation, Defendant-Appellant and Kimberly Lohman Suiters, also known as Kimberly Lohman, individually and as employee of KOCO-TV; Ohio/Oklahoma Hearst-Argyle Television, Inc., doing business as KOCO TV, a Nevada corporation; The City of Norman, a Municipal corporation, for purposes of injunctive and equitable relief only; John Doe; Jane Doe, other unknown persons or person having responsibility or involvement in the circumstances of the violation of the federal civil rights and/or private rights of the plaintiff, including other state actors, and/or private persons acting in concert, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

469 F.3d 910

Aundra ANDERSON, an individual, Plaintiff-Appellee, v. Don BLAKE, individually and as a state actor police officer for the City of Norman, Oklahoma, a municipal corporation, Defendant-Appellant and Kimberly Lohman Suiters, also known as Kimberly Lohman, individually and as employee of KOCO-TV; Ohio/Oklahoma Hearst-Argyle Television, Inc., doing business as KOCO TV, a Nevada corporation; The City of Norman, a Municipal corporation, for purposes of injunctive and equitable relief only; John Doe; Jane Doe, other unknown persons or person having responsibility or involvement in the circumstances of the violation of the federal civil rights and/or private rights of the plaintiff, including other state actors, and/or private persons acting in concert, Defendants.

No. 05-6329.

United States Court of Appeals, Tenth Circuit.

November 14, 2006.

COPYRIGHT MATERIAL OMITTED

Rickey J. Knighton II, (Jeff Harley Bryant and Susan D. Rogers, on the briefs), Norman, OK, for Defendant-Appellant.

Michael C. Salem, Norman, OK, for Plaintiff-Appellee.

Before KELLY, HOLLOWAY, and McCONNELL, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Don Blake appeals the district court's denial of his Fed. R.Civ.P. 12(b)(6) motion to dismiss based on qualified immunity. Officer Blake contends that the district court erred by (1) holding that Plaintiff-Appellee Aundra Anderson possessed a constitutionally protected privacy interest in the contents of a video depicting her alleged rape, (2) holding that Ms. Anderson's constitutional privacy interest was clearly established, and (3) consequently rejecting Officer Blake's contention that he is entitled to qualified immunity from suit. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

Ms. Anderson's claims arise out of the publication of a videotape depicting her alleged rape, which was disclosed to a television reporter and aired on a local news broadcast in Oklahoma City. Aplt. Br. at 2-3. She alleges she was the victim of a rape that occurred while she was unconscious, and that she later discovered a video documenting the rape. Id. After discovering the video, she reported the rape to Officer Blake, a detective with the City of Norman Police Department and turned the video over to him. Id. at 3. Ms. Anderson alleged that Officer Blake promised her that the video would remain confidential and would be used only for law enforcement purposes. Aplt.App. at 18 (Compl. ¶ 22).

Sometime thereafter, Officer Blake disclosed the contents of the video to a reporter named Kimberly Lohman and her cameraman, both of whom work for KOCO-TV, a television station based in Oklahoma City. Aplt. Br. at 3; Aplee. Br. at 11. Ms. Anderson alleges that the officer contacted her by phone and handed the line to Lohman who attempted to interview her about the details of her rape. Aplee. Br. at 11. Later, the television station aired portions of the video in a manner that obscured Ms. Anderson's identity during a news broadcast. Aplt. Br. at 3. Ms. Anderson alleges that there was no law enforcement purpose in defendant's release of the video. Aplee. Br. at 3.

The district court denied Officer Blake's motion to dismiss. Anderson v. Blake, No. Civ-05-0729-HE, 2005 WL 2210222 (W.D.Okla. Sept.12, 2005). It concluded that the video of Ms. Anderson's alleged rape "possesses the requisite personal nature to give rise to Plaintiff's legitimate expectation of privacy." Id. at *2. It rejected Officer Blake's argument that the criminal activity allegedly depicted on the video rendered it beyond constitutional protection, holding that the alleged criminal activity depicted was not that of Ms. Anderson, but rather the rapist. Finally, it also rejected Officer Blake's argument that the video was destined to be made public, concluding that such public disclosure was not inevitable.

Relying on Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir.1995), the district court also concluded that Ms. Anderson's privacy interest was clearly established under existing law. It concluded that the video depiction of the alleged rape was of a substantially more personal nature than a diary held to be protected in Sheets. Accordingly, the district court concluded that Ms. Anderson had met her burden in overcoming the qualified immunity defense.

Discussion

An order denying qualified immunity that raises purely legal issues is immediately appealable. See Johnson v. Fankell, 520 U.S. 911, 915, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997). Our review is de novo. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1199 (10th Cir. 2003). We accept all well-pleaded allegations of a plaintiff's complaint as true and consider them in the light most favorable to the non-moving party. Id. Accordingly, we will not reverse the district court unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id.¹

"The doctrine of qualified immunity shields public officials ... from damage actions unless their conduct was unreasonable in light of clearly established law." Elder v. Holloway, 510 U.S. 510, 512, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Once a defendant pleads qualified immunity as a defense, the plaintiff must show: (1) that the defendant's actions violated a constitutional or statutory right, and (2) that the rights alleged to be violated were clearly established at the time of the conduct at issue. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

To be clearly established, the contours of a right must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (internal quotation and citation omitted). This means that there need not be precise factual correspondence between earlier cases and the case at hand, because "general statements of the law are not inherently incapable of giving fair and clear warning...." Id. at 741, 122 S.Ct. 2508 (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In other words, a general constitutional rule that has already been established can "apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." Id. A plaintiff can demonstrate that a constitutional right is clearly established by reference to cases from the Supreme Court, the Tenth Circuit, or the weight of authority from other circuits. Smith v. Cochran, 339 F.3d 1205, 1215 (10th Cir.2003).

I. Privacy Interest in the Contents of the Video

The district court held that Ms. Anderson had a constitutionally protected privacy interest in the contents of the video because of its "personal nature." Anderson, 2005 WL 2210222, at *2. This conclusion is well supported by precedent from the Supreme Court and this circuit. In Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), the Supreme Court held that the constitutional right to privacy includes an "individual interest in avoiding disclosure of personal matters...." Relying on Whalen, we held in Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986), that "[d]ue process thus implies an assurance of confidentiality with respect to certain forms of personal information possessed by the state." Information is protected by the right to privacy when a person has "a legitimate expectation ... that it will remain confidential while in the state's possession." Id. We have held, without listing other factors, that this legitimate expectation of privacy depends "`at least in part, upon the intimate or otherwise personal nature of the material which the state possesses.'" Sheets, 45 F.3d at 1387 (quoting Mangels, 789 F.2d at 839). Even if personal information is protected by the right to privacy, the state may still justify its disclosure. Disclosure of such protected information must "advance a compelling state interest which, in addition, must be accomplished in the least intrusive manner." Mangels, 789 F.2d at 839 (internal citation omitted). In Sheets, we formally articulated the inquiry as a two-part test. When the state discloses information that is alleged to be protected by the right to privacy, we determine first whether the information is protected by the right to privacy, and second, whether the state can demonstrate that it had a compelling interest for disclosure and that it used the least intrusive means of disclosing the information. Sheets, 45 F.3d at 1387.

Ms. Anderson possesses a constitutionally protected privacy interest in the video because it depicts the most private of matters: namely her body being forcibly violated. As the Sixth Circuit noted, "[p]ublically revealing information regarding [sexuality and choices about sex] exposes an aspect of our lives that we regard as highly personal and private." Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir.1998). Such a conclusion is also fully justified by precedent in our own circuit. In Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir. 1982) (per curiam), we held that the constitutional right of privacy may be violated when guards watch inmates of the opposite sex undressing or showering. Later, in Eastwood v. Department of Corrections, 846 F.2d 627, 631 (10th Cir.1988), we stated more explicitly that the right to privacy is triggered when "an individual is forced to disclose information regarding personal sexual matters." There, we concluded that a person may have a constitutional privacy interest in refusing to answer questions concerning sexual history posed by an employer. In Sheets, the case primarily relied upon by the district court, we held that a husband may have a legitimate expectation of privacy in his wife's diary—which was turned over to the police as part of a criminal investigation—because it contained reflections about the...