Benford v. American Broadcasting Companies, Inc.
Decision Date | 22 December 1982 |
Docket Number | Civ. A. No. N-79-2386. |
Citation | 554 F. Supp. 145 |
Court | U.S. District Court — District of Maryland |
Parties | George H. BENFORD v. AMERICAN BROADCASTING COMPANIES, INC., and Mrs. Isaac (Betty) Hamburger and Miss Kathleen T. Gardner and Mrs. Lillian M. Teitelbaum and David L. Holton and Margaret Osmer. |
Wilson K. Barnes and Little, Hall & Steinmann, P.A., Baltimore, Md., and Dean E. Sharp, Washington, D.C., for plaintiffs.
Alan I. Baron, Baltimore, Md., Ellen Scalettar and Finley, Kumble, Wagner, Heine, Underberg & Casey, Washington, D.C., for defendants American Broadcasting Co., Inc. and Margaret Osmer.
Stanley M. Brand, Steven R. Ross and Michael L. Murray, Washington, D.C., for
defendants Miss Kathleen T. Gardner, Mrs. Lillian M. Teitelbaum, David L. Holton and Mrs. Isaac (Betty) Hamburger.
MEMORANDUM
Plaintiff, George H. Benford, instituted the present action against American Broadcasting Companies, Inc., (ABC), Margaret Osmer,* an ABC employee, David L. Holton, Chief Investigator for the Select Committee on Aging, United States House of Representatives (Select Committee), Kathleen T. Gardner, professional staff member of the Select Committee, and Betty Hamburger and Lillian M. Teitelbaum, both special senior citizen investigators of the Select Committee. Defendants Holton, Gardner, Hamburger, and Teitelbaum will hereinafter be referred to collectively as the "congressional defendants".** As the complaint is the same as that outlined in detail in Benford v. American Broadcasting Companies, Inc., 502 F.Supp. 1148 (D.Md.1980), the facts need not be repeated exhaustively here.
Briefly, the plaintiff is an insurance salesman who was surreptitiously filmed by ABC while making his standard cancer insurance sales presentation to the congressional defendants, who were posing as prospective purchasers. Portions of that taped meeting were broadcast on the ABC Nightly News, and are alleged to have caused the plaintiff grave financial and other injury. The plaintiff claimed the taping and broadcasting subjects the defendants to liability under the Maryland Wiretapping and Electronic Surveillance Act, Md.Cts. & Jud.Proc. Code Ann. §§ 10-401, et seq., (hereinafter sometimes referred to as "The Maryland Act"), the Fourth Amendment of the Constitution, Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510, et seq., (hereinafter sometimes referred to as the "Federal Eavesdropping Statute"), and the common law torts of civil conspiracy, malicious interference with business relations, and invasion of privacy.
The congressional defendants responded to these charges by filing a motion to dismiss, or alternatively for summary judgment, as to each cause of action. Their primary contentions were that their conduct was absolutely protected by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1, and/or the common law doctrine of official immunity. This Court considered those arguments and, on November 14, 1980, held that the congressional defendants are not absolutely immune under either the Speech or Debate Clause or the official immunity doctrine, but suggested that upon a proper showing, the congressional defendants would be entitled to assert a defense of qualified immunity as defined by the Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Benford v. American Broadcasting Companies, Inc., 502 F.Supp. 1148, 1159 (D.Md.1980). A decision as to the viability of the qualified immunity defense was not then reached.
Defendants ABC and Osmer then filed motions to dismiss Counts II and IV of plaintiff's amended complaint. Count II alleged defendants violated plaintiff's Fourth Amendment rights by conducting an unconstitutional search and seizure. Count IV charged the defendants with violating the Federal Eavesdropping Statute. This Court agreed with the defendants ABC and Osmer as to the non-viability of Count II and on November 24, 1980, it was dismissed. Because a genuine issue of material fact remained which would impact on the viability of Count IV, this Court refused to dismiss that count. Benford v. American Broadcasting Companies, Inc., 502 F.Supp. 1159 (D.Md.1980). On January 14, 1981, in response to the congressional defendants renewed motion to dismiss, filed November 25, 1980, this Court dismissed Count II of plaintiff's complaint as it applied to the congressional defendants as well.
On July 16, 1982, this Court entered an order staying further discovery in this case with respect to the congressional defendants, pending the Court's consideration of the possible impact of Nixon v. Fitzgerald, ___ U.S. ___, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), and Harlow v. Fitzgerald, ___ U.S. ___, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), on the qualified immunity issue. Written discovery not involving the congressional defendants was not affected by the stay. The parties have since filed exhaustive memoranda outlining their respective positions.
Predictably, the plaintiff and the congressional defendants view Harlow from different perspectives. The congressional defendants argue that as a result of these decisions, they are now entitled to summary judgment for all remaining counts on the basis of qualified immunity. The plaintiff, on the other hand, contends defendants have failed to meet even the threshold requirements necessary to bring Harlow into play. Furthermore, even assuming the congressional defendants met their threshold burden, the plaintiff argues the congressional defendants are nevertheless not entitled to qualified immunity as they have not satisfied the Harlow standards. As a result, the plaintiff asks this Court to reject the congressional defendants' renewed claim that they are entitled to summary judgment. The Court will herein decide this narrow, but important question.
In Harlow, the petitioners, Bryce Harlow and Alexander Butterfield, were charged with participating in a conspiracy to violate the constitutional and statutory rights of the respondent, A. Ernest Fitzgerald. The petitioners were aides to former President Richard M. Nixon and were alleged to have arranged for the retaliatory firing of Fitzgerald, a "whistleblower". Fitzgerald was intent on exposing shoddy purchasing practices in the Department of Defense which resulted in cost overruns and which were politically embarrassing to the Nixon administration. The petitioners moved for summary judgment and contended they were entitled to absolute and qualified official immunity as aides to the President.
In reviewing the petitioners' claim of absolute official immunity, the Supreme Court reaffirmed the established principle that government officials are entitled to absolute immunity when their special functions or constitutional status requires complete protection from suit. To hold otherwise would be to risk undue interference with their important public duties. The doctrine was not available, however, to aides to the President, either directly or in derivative fashion. Relying on Butz v. Economou, supra, where the Court earlier held that as a general rule absolute immunity does not protect Cabinet officers, the Harlow Court said it would be "untenable to hold absolute immunity an incident of the office of every Presidential subordinate based in the White House". Harlow v. Fitzgerald, 102 S.Ct. at 2734. Nevertheless, absolute immunity may still be claimed by legislators in their legislative functions, judges in their judicial functions, prosecutors in their prosecutorial functions, executive officers in their adjudicative functions, and by the President of the United States. Harlow v. Fitzgerald, 102 S.Ct. at 2733. See also: Eastland v. United States Servicemen's Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975); Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978); Butz v. Economou, supra, Nixon v. Fitzgerald, supra.
Correspondingly, under Harlow, the defense of qualified immunity remains available to public officials, absent special circumstances. To raise this defense, an official must show (1) his actions were taken "reasonably and in good faith", and (2) that his conduct was authorized.1
Prior to Harlow, the component parts of the "good faith" standard were identified as being comprised of both objective and subjective elements. The objective element concerned presumptive knowledge of and respect for "basic, unquestioned constitutional rights", and the subjective element referred to "permissible intentions". Id. 102 S.Ct. at 2737; See Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975).
But because the extent of an official's subjective good faith was a question of fact, which left to a jury typically resulted in the same discovery costs and disruptions of government the immunity doctrine was designed to prevent, in Harlow the Supreme Court modified the "good faith" rule by eliminating the subjective component. The objective element was redefined. Harlow v. Fitzgerald, 102 S.Ct. at 2737.
Today, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 102 S.Ct. at 2738. Therefore, the good faith standard is purely objective. It is left to the Court, not the jury, to determine whether the plaintiff's constitutional or statutory rights were clearly established at the time the action complained of occurred. If they are held to have been clearly established, an official can succeed only in extraordinary circumstances by proving he neither knew nor should have known of that established standard. Id. 102 S.Ct. at 2739.
Also relevant to the question presently before the Court is the fact that an official who meets the objectivity test still must...
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