Citicasters, Inc. v. McCaskill, 94-0748-CV-W-2.

• Decision Date: 01 February 1995
• Docket Number: No. 94-0748-CV-W-2.,94-0748-CV-W-2.
• Citation: 883 F. Supp. 1282
• Parties: CITICASTERS, INC., d/b/a WDAF-TV, Plaintiff, v. Claire McCASKILL et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

883 F. Supp. 1282

CITICASTERS, INC., d/b/a WDAF-TV, Plaintiff, v. Claire McCASKILL et al., Defendants.

No. 94-0748-CV-W-2.

United States District Court, W.D. Missouri, Western Division.

February 1, 1995.

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Shari S. Weinman, Shook, Hardy & Bacon and Sam L. Colville, Holman, McCollum & Hansen, P.C., Kansas City, MO, for plaintiff.

James B. Storkamp, J. Earlene Farr, Jackson County Courthouse Counselor's Office; and Dale H. Close, Kansas City Police Dept., Legal Advisor's Office, Kansas City, MO, for defendants.

ORDER

GAITAN, District Judge.

I. INTRODUCTION

Plaintiff in the above titled case is in the business of television broadcasting. This lawsuit arises from plaintiffs August 5, 1994, broadcast of a videotape which showed the abduction of a woman, Julia A. Flege, by a man later identified as Chancey E. Wright. After her abduction, Ms. Flege was murdered and Wright was apprehended in connection with this crime.

Plaintiff purchased the videotape of Ms. Flege's abduction from Earl Warren, a private citizen, believed to be a resident of Arlington, Texas. Mr. Warren was videotaping scenes around the Liberty Memorial in Kansas City, Missouri when by chance he videotaped the abduction of Ms. Flege. Mr. Warren thereafter contacted the plaintiff and offered to allow plaintiff to make a copy of the tape. The plaintiff copied Mr. Warren's tape and broadcast portions of this tape on its 6:00 p.m. newscast on August 5, 1994. Mr. Warren reportedly left Kansas City with the original tape, shortly after this broadcast.

Also shortly after the broadcast, Detective Vince McInerney of the Kansas City, Missouri, Police Department contacted the plaintiff's business and expressed an interest in the videotape. Captain McInerney spoke with the Plaintiff's assignment manager, Michael Lewis. Mr. Lewis informed Captain McInerney that Mr. Warren had left town with the original tape. Mr. Lewis further stated that the police could view plaintiff's copy of the videotape, but they could only obtain a copy of it through a subpoena.

That evening, defendant Ronald Parker, a police officer with the Kansas City, Missouri, Police Department, submitted an affidavit/application for a search warrant. A search warrant was issued at 9:20 p.m. At approximately 10:00 p.m. that evening, defendants Parker and Claire McCaskill, the Prosecuting Attorney of Jackson County, Missouri, assisted in executing the search warrant on plaintiff at its business premises. The subject of this search warrant was "the original video cassette tape, and copies of the video cassette tape, which show the abduction of Julia A. Flege."

Plaintiff brings this claim against defendants Parker and McCaskill for their participation in execution of the search warrant. Plaintiff also brings a claim against the Board of Police Commissioners of Kansas City, Missouri, through the individual members of the Board. Plaintiff brings its claims against the defendants for their actions in their official capacity only. Plaintiff contends that the seizure of the videotape was a violation of the 42 U.S.C. § 1983 (1988) and the Privacy Protection Act of 1980 (Privacy Protection Act), 42 U.S.C. §§ 2000aa-2000aa-12 (1988).

This court held a hearing in this case on August 11 and 12, 1994, during which plaintiff and defendants presented evidence. At the close of this hearing both plaintiff and defendants indicated that there was no need to present further evidence and that after briefing, plaintiffs complaint would be ready to rule. Plaintiff and defendants have submitted their briefs in this matter and accordingly, the court now addresses the merits of plaintiff's claims.

II. APPLICABILITY OF THE PRIVACY PROTECTION ACT

Key to deciding the claims raised by plaintiff is determining the applicability of the statute on which plaintiff bases its claims. Defendants have raised various arguments as to why the Privacy Protection Act does not apply to the facts of this case and to these defendants. The court, therefore, first considers whether this statute provides an appropriate basis for the relief that plaintiff seeks.

The Privacy Protection Act provides in relevant part:

Notwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigations or prosecution of a criminal offense, to search for or seize documentary materials ... possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communications, in or affecting interstate or foreign commerce....

42 U.S.C. § 2000aa(b). The Act also has a similar provision which applies to work product materials. 42 U.S.C. § 2000aa(a). Thus, the Privacy Protection Act limits governmental search and seizure of documentary materials possessed by persons engaged in First Amendment activities. The Act further provides a remedy for persons aggrieved by violations of its provisions. 42 U.S.C. § 2000aa-6.

A. Applicability to this Case

1. Documentary Materials versus Work Product

Count I of plaintiffs complaint alleges that defendants violated the Privacy Protection Act by seizing "documentary materials" through the execution of the search warrant. At the outset, the court recognizes that the Act defines documentary materials as including "video tapes." 42 U.S.C. § 2000aa-7(a). Therefore, the court has no difficulty characterizing the videotape at issue in this lawsuit as a documentary material for purposes of applying the Act. Plaintiff has also alleged in its opening brief, however, that the videotape is "work product material." The Act defines "work product materials" as materials which

(1) in anticipation of communicating such materials to the public are prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person;

(2) are possessed for the purposes of communicating such materials to the public; and

(3) include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material.

42 U.S.C. § 2000aa-7(b). The court cannot agree with the characterization of the videotape in question as "work product" because it was not produced "in anticipation of communicating" it to the public. Rather, Mr. Warren unintentionally taped the abduction of Ms. Flege. Consequently, the court will not apply those provisions of the Privacy Protection Act which pertain to work product materials to the facts of this case.

2. Dissemination to the Public

Defendant McCaskill argues that the Privacy Protection Act does not apply to the seizure of the videotape in this case because it was not possessed with a purpose to disseminate it to the public. Defendant notes that upon execution of the search warrant, plaintiff offered defendants a copy of its news broadcast which showed parts of the videotape at issue. Thus, defendant concludes that the "documentary materials" upon which plaintiff bases its Privacy Protection Act claim are those portions of the videotape which plaintiff did not show on its news broadcast. Defendant contends that because plaintiff had no intention to disseminate those portions of the videotape to the public, they were not within the purview of the Act.

Recognizing that the Privacy Protection Act was a response to the Supreme Court's holding in Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), this court cannot agree with McCaskill's interpretation of the Act. In Zurcher, the STANFORD DAILY, a student newspaper, published articles and photographs of a demonstration which injured several police officers. Id. at 551, 98 S.Ct. at 1974. The district attorney's office, acting on the belief that the paper possessed additional photographs which could help identify the individuals who assaulted the police, secured a search warrant to search the newspaper office. Id. The police warrant covered all photographs and negatives of the demonstration in the possession of the STANFORD DAILY. Id. The Court in Zurcher held that the Fourth Amendment does not confer any special protections against search and seizure for the possessor of documentary evidence who is not a suspect in the offense under investigation. Id. at 560, 98 S.Ct. at 1979. Thereafter, Congress enacted the Privacy Protection Act providing protection against the type of search and seizure executed in Zurcher.

This case is similar to Zurcher because in both cases, the plaintiff published a portion of the materials that were ultimately searched and seized. In enacting protection for materials held by plaintiffs engaged in First Amendment activities, Congress made no distinctions based on whether a plaintiff had published the materials. In fact, to make such a distinction would defeat the purpose of the Act because government officials presumably will have less interest to search and seize materials that have been made public.

Furthermore, the language in the Act itself leads the court to reject defendant's narrow interpretation of the statute. The Act applies to documentary materials or work product "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa (emphasis added). Thus, the statute requires only that the materials be connected with a public communication. Defendant's interpretation, affords protection only to materials that are publicly communicated, and is not supported by the language of the statute. The materials seized by the defendants were connected with plaintiff's news broadcast on August 5, 1994. Consequently, the court finds that they are the type of documentary materials protected by the Privacy Protection Act.

3. Availability of a Subpoena Duces Tecum

Defendants maintain that because the Privacy Protection Act provides for use of a...