Citicasters v. McCaskill
| Decision Date | 27 August 1996 |
| Docket Number | No. 95-1894,WDAF-TV,95-1894 |
| Citation | 89 F.3d 1350 |
| Parties | CITICASTERS, doing business as, formerly known as Great American Television and Radio Company, Inc., Appellee, v. Claire C. McCASKILL, in her capacity as Jackson County Prosecutor, Appellant, Board of Police Commissioners of Kansas City, Missouri; Steven Bishop, in his capacity as Chief of Police of the Kansas City, Missouri Police Department; Ronald Parker, in his capacity as a Kansas City, Missouri police officer; Bailus M. Tate, in his official capacity as a member of the Board of Police Commissioners of Kansas City, MO; John A. Dillingham, in his official capacity as a member of the Board of Police Commissioners of Kansas City, MO; Jack W.R. Headley, in his official capacity as a member of the Board of Police Commissioners of Kansas City, MO; Dona R. Boley, in her official capacity as a member of the Board of Police Commissioners of Kansas City, MO; Emanuel Cleaver, II, in his official capacity as a member of the Board of Police Commissioners of Kansas City, MO, Defendants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. Earlene Farr, argued, Kansas City, Missouri, for appellant.
Samuel Lytle Colville, argued, Kansas City, Missouri, for appellee.
Before MAGILL, BRIGHT and MURPHY, Circuit Judges.
Under the authority of a search warrant, investigating authorities seized a videotape from WDAF-TV (WDAF), Kansas City, Missouri, which recorded the commission of a crime. The station owner, Citicasters, Inc., brought this lawsuit for damages and injunctive relief for an alleged violation of the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa to 2000aa-12 (1994), against county prosecutor Claire C. McCaskill and Kansas City police officials. The district court concluded that McCaskill had violated the Act, but dismissed the actions against the police. It awarded $1000 in liquidated damages and ordered the return of the videotape. See Citicasters v. McCaskill, 883 F.Supp. 1282 (W.D.Mo.1995).
McCaskill appeals, asserting that the district court erred in barring her from showing that the circumstances relating to the seizure constituted exceptions to the requirements of the Privacy Protection Act, that the evidence did not support the judgment against her, and that injunctive relief is not available under the Act. We agree with McCaskill that she was improperly barred from invoking the exceptions to the Act, and that there was insufficient evidence to support the judgment against her. We reverse and remand.
On August 5, 1994, at approximately 1:10 p.m., Julia Flege was assaulted in public and brutally murdered. Earl Warren, a tourist in Kansas City, captured the assault on videotape and, within hours, sold the videotape to plaintiff Citicasters, Inc., which operated WDAF, a local television station. WDAF presented a small portion of the tape on its 6 p.m. news broadcast later that same day.
Meanwhile, at approximately 1:30 p.m. on Friday, August 5, 1994, Chancey E. Wright was detained in connection with Flege's murder. Under Missouri law, Mo.Ann.Stat. § 544.170 (Vernon 1994), Wright had to be charged with the crime by 9:30 a.m. on Saturday, August 6, 1994, or be released. Learning of the videotape by its broadcast on the 6 p.m. news, Captain Vince McInerney, commander of the media relations office of the Kansas City Police Department, immediately contacted WDAF to request a copy of the videotape. WDAF refused to cooperate. Michael Lewis, the station's assignment manager, told McInerney that tourist Warren had left town with the original tape, 1 and that, while the police could view the portion of the tape that the station had aired on the newscast, they could only obtain a copy of the entire tape through a court order.
The Kansas City police sought a search warrant for WDAF to obtain the videotape on the evening of August 5, 1994. In support of the application, affiant Ronald Parker, a police veteran of twenty-two years and a detective in the police department's homicide unit, submitted an affidavit which recited the circumstances of victim Flege's murder, including the killer's subsequent flight and assault on a police officer, and the existence of the videotape. 2 At 9:20 p.m. on the evening of August 5, 1994, approximately eight hours after the assault and abduction of Flege, the Honorable Richard E. Standridge, Associate Circuit Judge for Jackson County, Sixteenth Judicial Circuit, State of Missouri, issued a search warrant to the police. The warrant described the area to be searched--"The offices of the Great American Television and Radio Station, also known as WDAF Channel 4, at 3030 Summit, Kansas City, Jackson County, Missouri"--and the items to be seized--"The original video cassette tape, and copies of the video cassette tape, which show the abduction of Julia A. Flege which occurred at 101 Memorial Drive on 8/5/94 at approximately 1310 hours and the subsequent shooting which involved a Kansas City, Missouri Police Officer, occurring at 2525 Main"--and that there was probable cause to believe that the tape was at WDAF. J.A. at 232.
Police officers, accompanied by prosecuting attorneys, served the warrant at WDAF that evening at approximately 10 p.m., some nine hours and fifty minutes after the assault and abduction of Flege. An employee of WDAF met them at the station and called Michael McDonald, the vice president of news for WDAF. McDonald immediately came to the station. The officers showed vice president McDonald the search warrant and demanded the tape. McDonald responded that he would give them a copy of the material that had been aired on the newscast, but that he would only surrender the entire tape with a subpoena. Vice president McDonald called an attorney for WDAF who arrived at the station at approximately 11:15 p.m. on Friday evening. After further discussion and over WDAF's objections, the police finally obtained possession of WDAF's copy of the entire tape sometime between 11:45 p.m. and midnight that night. WDAF retained at least one copy of the portion of the tape that had been shown on the newscast.
Citicasters brought this suit against defendants, alleging a violation of the Privacy Protection Act because the police obtained the videotape through a search warrant, rather than a subpoena duces tecum. The district court held an expedited hearing on August 11-12, 1994. The district court entered a judgment against McCaskill for $1000 liquidated damages under the Privacy Protection Act, 3 and McCaskill appeals.
The Privacy Protection Act generally prohibits government officials from searching for and seizing documentary materials possessed by a person in connection with a purpose to disseminate information to the public. See 42 U.S.C. § 2000aa(b). Instead, the Act requires law enforcement agencies to rely on the cooperation of the media or subpoenas duces tecum to obtain such documentary materials. The Act contains important exceptions, however, where searches and seizures are permitted. The Act provides that it:
shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if--
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate ...
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;
(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or
(4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and--
(A) all appellate remedies have been exhausted; or
(B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice.
42 U.S.C. § 2000aa(b) (emphasis added).
As an affirmative defense, McCaskill asserted that the exceptions at 42 U.S.C §§ 2000aa(b)(2) and (3) applied, barring Citicasters from recovering under the Act. Noting that Detective Parker's affidavit in support of the search warrant did not expressly recite exceptions (2) and (3), the district court refused to allow McCaskill to prove the existence of these exceptions in this case. The district court stated:
[T]he question for the court to consider is whether the defendant may claim an exception to the Act when the application for the search warrant is devoid of reasons supporting the exception. The court finds that to allow a defendant to claim an exception, after a search and seizure has occurred, allows a defendant to justify its conduct in hindsight. The legislative history of the Act envisioned that a defendant would state the basis for exceptions when applying for the warrant. Moreover, if circumstances exist which constitute an exception, the defendant should state these reasons in an affidavit for a warrant. Thus, because the affidavit in support of the search warrant did not set forth reasons which fall under an exception to the Act, the court will not allow defendants to now invoke those exceptions.
Citicasters, 883 F.Supp. at 1288. 4
We review the district court's interpretation of the Privacy Protection Act de novo. See United States v. Lowe, 50 F.3d 604, 606 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 260, 133 L.Ed.2d 183 (1995). There is no mention in the Privacy Protection Act of any requirement that search warrant applications describe exceptions to the Act, 5 and we must determine if it was proper for the district court to rely on the legislative history of the Act to create such a...
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