Asociacion De Periodistas De P.R. v. Mueller

• Decision Date: 18 June 2008
• Docket Number: No. 07-2196.,07-2196.
• Citation: 529 F.3d 52
• Parties: ASOCIACIÓN DE PERIODISTAS DE PUERTO RICO, Puerto Rico Journalists Association; Overseas Press Club of Puerto Rico; Normando Valentín, individual capacity and on behalf of his respective Conjugal partnership; Víctor Sánchez, individual capacity and on behalf of his respective Conjugal Partnership; Joel Lago-Román, individual capacity and on behalf of his respective Conjugal Partnership; Cossette Donalds-Brown, individual capacity and on behalf of her respective Conjugal Partnership; Víctor Fernández, individual capacity and on behalf of his respective Conjugal Partnership; Annette Álvarez, individual capacity and on behalf of her respective Conjugal Partnership, Plaintiffs, Appellants, v. Robert MUELLER, in his official capacity as Director of the Federal Bureau of Investigation; Ten Unknown Agents of the Federal Bureau of Investigation, individually and in their official capacity and on behalf of their Conjugal Partnership; Agent Keith Byer, individually and in his official capacity and on behalf of his Conjugal Partnership; Agent Luis S. Fraticelli, individually and in his official capacity and on behalf of his Conjugal Partnership; Agent José Figueroa-Sancha, individually and in his official capacity and on behalf of his Conjugal Partnership, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

529 F.3d 52

ASOCIACIÓN DE PERIODISTAS DE PUERTO RICO, Puerto Rico Journalists Association; Overseas Press Club of Puerto Rico; Normando Valentín, individual capacity and on behalf of his respective Conjugal partnership; Víctor Sánchez, individual capacity and on behalf of his respective Conjugal Partnership; Joel Lago-Román, individual capacity and on behalf of his respective Conjugal Partnership; Cossette Donalds-Brown, individual capacity and on behalf of her respective Conjugal Partnership; Víctor Fernández, individual capacity and on behalf of his respective Conjugal Partnership; Annette Álvarez, individual capacity and on behalf of her respective Conjugal Partnership, Plaintiffs, Appellants, v. Robert MUELLER, in his official capacity as Director of the Federal Bureau of Investigation; Ten Unknown Agents of the Federal Bureau of Investigation, individually and in their official capacity and on behalf of their Conjugal Partnership; Agent Keith Byer, individually and in his official capacity and on behalf of his Conjugal Partnership; Agent Luis S. Fraticelli, individually and in his official capacity and on behalf of his Conjugal Partnership; Agent José Figueroa-Sancha, individually and in his official capacity and on behalf of his Conjugal Partnership, Defendants, Appellees.

No. 07-2196.

United States Court of Appeals, First Circuit.

Heard March 5, 2008.

Decided June 18, 2008.

Catherine Crump, with whom Aden J. Fine, ACLU Foundation, Nora Vargas-Acosta, Josué Gonzáles-Ortiz, William Ramírez, ACLU, Puerto Rico National Chapter, was on brief for appellants.

Germán A. Rieckehoff, Assistant United States Attorney, with whom Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez-Sosa, Assistant United States

Attorney, Chief Appellate Division, and Isabel Muñoz-Acosta, Assistant United States Attorney, was on brief for appellees.

Lucy A. Dalglish, Gregg P. Leslie, Corinna J. Zarek, and Elizabeth J. Soja, on brief for amicus curiae The Reporters Committee for Freedom of the Press.

Before LYNCH, Chief Judge, TORRUELLA, Circuit Judge, and SELYA, Senior Circuit Judge.

TORRUELLA, Circuit Judge.

This appeal involves alleged violations of the First and Fourth Amendments by the Federal Bureau of Investigation ("FBI") against a group of journalists during the execution of a search warrant. The district court granted summary judgment for the defendants on all claims based on qualified immunity. After carefully considering the evidence in the record, we affirm summary judgment on all First Amendment claims, but hold that summary judgment was not proper against the individual plaintiffs on their excessive force claims.

I. Background

As this case comes to us on summary judgment, we recount the facts in the light most favorable to the nonmoving parties; in this case, those parties are the plaintiffs. See, e.g., Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 84 (1st Cir.2008).

On February 10, 2006, FBI agents executed a search warrant on Liliana Laboy-Rodríguez's residence in a condominium complex in San Juan, Puerto Rico. Laboy-Rodríguez is a prominent political activist associated with the Puerto Rico independence movement. News of the search spread quickly; during the course of the day, members of the media descended on the scene and set up to cover the events as they unfolded. Among those journalists were the individual plaintiffs: Normando Valentín, a television reporter; Victor Sánchez, his cameraman; Cossette Donalds Brown, a radio reporter; Víctor Fernández, a television cameraman; Annette Álvarez, a television reporter; and Joel Lago-Román, a radio reporter.

Laboy-Rodríguez resides in an apartment within a multi-unit condominium building surrounded by a metal fence and concrete wall. There are two access points in the fence: a pedestrian gate and a vehicular access gate. A private security guard controls the flow of cars and people into the building and parking lot from a booth located between the two gates. During the execution of the search warrant, the FBI agents utilized the building's existing fence and security structure to restrict the flow of people into the area. Access was limited to residents, their guests, and building employees. Members of the media and other curious bystanders congregated outside the metal fence on the street and sidewalk.

Around noon, a U.S. Department of Homeland Security helicopter approached a nearby field. As an FBI agent on the ground signaled to the helicopter, it landed and eight to ten heavily armed agents disembarked. Some of the journalists approached the field hoping to interview the agents as they made their way to the condominium. The agents allegedly pushed away the journalists' microphones, placed a hand in front of the lens of one camera, and raised a rifle in their direction. Unsuccessful at obtaining any statements from the agents, the journalists eventually returned to the outside of the complex. By this point, the crowd of people outside of the fenced area—members of the media and the general public, including some local students—had grown and some were shouting foul language at the agents.

Two hours later, Laboy-Rodríguez's daughter (Natalia Hernández-Laboy) and lawyers arrived and gained admittance to the condominium building. Laboy-Rodríguez came downstairs to meet with them, and she was interviewed by one reporter who had entered the complex. During this time, FBI agents began exiting the building, loading their cars with boxes of seized materials. Soon thereafter, more reporters and other camerapersons entered the gated area, allegedly in response to a "wave" from Natalia Hernández-Laboy, and approached the agents with questions. According to one plaintiff's account, some fifteen to twenty people had entered the gated area.

The FBI agents ordered the group to return outside the gated area. The plaintiffs maintain that they were peaceful at all times and that when ordered to leave, they sought to exit through the pedestrian gate, but were hindered by the agents' attempts to push the crowd through the narrow opening. The plaintiffs assert that without giving them an opportunity to exit, FBI agents physically grabbed and assaulted the reporters and cameramen using pepper spray and metal batons. Several of the plaintiffs aver that they sought and received medical treatment for their injuries.

On September 20, 2006, the plaintiffs—several individual journalists and the Asociación de Periodistas de Puerto Rico and the Overseas Press Club of Puerto Rico, two organizations comprised of journalists, photographers, and camerapersons—filed a complaint against the defendants, FBI Director Robert Mueller and other known and unknown agents of the FBI, alleging violations of their First and Fourth Amendment rights. The defendants moved for summary judgment, claiming protection from the allegations on the basis of qualified immunity. In support of their motion, the defendants submitted an affidavit by FBI Special Agent Keith Byers and a DVD with video footage of the day's events. The court granted the defendants' motion for summary judgment, finding that the plaintiffs' proffered facts had failed to establish a constitutional violation. Plaintiffs appealed.

II. Discussion

A. Standard of Review

Summary judgment is proper when "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Our review of a court's grant of summary judgment is de novo. Whitman v. Miles, 387 F.3d 68, 70 (1st Cir.2004). Reversal is required if "there existed any factual issues that needed to be resolved before the legal issues could be decided." Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 399 (1st Cir.1990) (quoting Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st Cir.1989)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (requiring reversal if "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party"). At summary judgment, the court's focus is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249.

B. Defendants' DVD

As an initial matter, there is some question surrounding the admissibility of a Spanish-language DVD submitted by the defendants without any accompanying affidavits. The DVD is a segment of a local news program that played footage of the day's events. In their motion for summary judgment, the defendants relied heavily on the DVD. Citing to the Supreme Court's decision in Scott v. Harris, ___ U.S. ___, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the defendants argued that the video disproves the plaintiffs' factual allegations of interference with news gathering and use of excessive force. Although the plaintiffs did not file a motion to strike the DVD evidence, they disputed the DVD's authenticity in their opposition to summary judgment.¹ Specifically, the plaintiffs asserted that the DVD appeared to be heavily edited, and the lack of any affidavits attesting to the DVD's authenticity required a finding that the evidence was not proper for consideration at summary judgment.

In its order, the district court noted the plaintiffs' objections to the DVD and stated: "We, therefore, base our discussion on Plaintiffs' version of the facts." Asociación de Periodistas de Puerto Rico v. Mueller, No. 06-1931, slip op. at 12 (D.P.R. June 12, 2007). Although the court did not formally strike the DVD from the record, we think it reasonable to conclude that the district court excluded it in its consideration of the summary judgment motion. Accordingly, we likewise decline to consider the DVD in our review. Cf. Livick v. Gillette Co., 524 F.3d 24, 28 (1st Cir.2008) ("[W]e will not disturb the district court's [decision to...