Lambert v. Polk County, Iowa

• Decision Date: 31 August 1989
• Docket Number: Civ. No. 89-566-B.
• Citation: 723 F. Supp. 128
• Parties: Beau LAMBERT and Palmer Communications Incorporated, Plaintiffs, v. POLK COUNTY, IOWA, the City of Des Moines, Iowa, James Smith, John Doe and John Roe, Defendants.
• Court: U.S. District Court — Southern District of Iowa

723 F. Supp. 128

Beau LAMBERT and Palmer Communications Incorporated, Plaintiffs, v. POLK COUNTY, IOWA, the City of Des Moines, Iowa, James Smith, John Doe and John Roe, Defendants.

Civ. No. 89-566-B.

United States District Court, S.D. Iowa, C.D.

August 31, 1989.

COPYRIGHT MATERIAL OMITTED

Kasey W. Kincaid, Nyemaster Law Firm, Des Moines, Michael A. Giudicessi, Des Moines, Iowa, for plaintiffs.

Norman G. Jesse, Asst. Polk Co. Atty., Des Moines, Iowa, for Polk County, Iowa and James Smith.

Patrick J. Hopkins, City Sol., Des Moines, Iowa, for City of Des Moines.

MEMORANDUM OPINION AND PRELIMINARY INJUNCTION

VIETOR, Chief Judge.

This suit arises because two Des Moines policemen took from plaintiff Beau Lambert (Lambert) a videotape he had made of a street fight that proved fatal, and defendants have refused to return the videotape, or a copy of it, to Lambert. After the videotape was taken from Lambert, he and WHO-TV, a commercial television station in Des Moines owned by plaintiff Palmer Communications Incorporated (Palmer), entered into an agreement under which Lambert is to sell the tape or a copy of it to WHO-TV.

Plaintiffs assert in Count 1 of the complaint that their rights under the Privacy Protection Act, 42 U.S.C. § 2000aa et seq., were violated by defendants. They assert in Count 2 that plaintiff Lambert's Fourth Amendment right to be free from unreasonable search and seizure and Fifth Amendment due process and just compensation rights, applicable to the states through the Fourteenth Amendment to the United States Constitution, were violated by defendants, and that plaintiffs' First Amendment right to gather and broadcast news, also applicable to the states through the Fourteenth Amendment, were violated by defendants. Count 2 proceeds under 42 U.S.C. § 1983, which provides a remedy for violations of a person's rights guaranteed to him under the United States Constitution by persons acting under color of state law. In Count 3 plaintiffs assert violations by defendants of their Iowa state constitutional protections against unreasonable searches and seizures and rights of free speech and press. In Count 4 plaintiffs assert a breach by defendants of an alleged contract between Lambert and defendants, to which they contend WHO-TV was a third party beneficiary.

Plaintiffs filed a motion for preliminary injunction seeking a mandatory injunction requiring defendants to return the videotape to plaintiffs. (In their brief and oral arguments, plaintiffs make clear that they seek only a copy of the videotape and if they are provided a copy they have no objection to defendants keeping the original.) Hearing on the preliminary injunction motion was held on August 24, 1989. All parties appeared at the hearing with counsel, except defendants John Doe and John Roe who were not served. (It became clear at the hearing that defendants Doe and Roe are Mike Gonzalez, a Des Moines police officer, and James Bonwell, a Des Moines police department sergeant, both of whom testified as defense witnesses at the hearing.)

PRELIMINARY INJUNCTION STANDARD

In the Eighth Circuit, "whether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir.1981).

FINDINGS OF FACT

Very early on the morning of August 1, 1989, Lambert was in the downtown Des Moines "loop" area with his videocamera. His purpose was to videotape the nighttime street activities in the loop, such as fights. Although he had never sold any videotape to a television station, he intended to sell to WHO-TV or any other buyer anything newsworthy that he might videotape.

Lambert saw a fight taking place and he videotaped it. After the fight was over he observed that the participant who got the worst of it, Richard Lee, was bleeding badly and he went to a phone and called the police. Upon his return to the scene he observed Des Moines Police Department Officer Mike Gonzalez and told him that he thought he had the event on tape. Another officer, Sergeant James Bonwell, arrived, and the officers obtained the tape from Lambert. They did not have a search warrant authorizing seizure of the tape.

Lambert's version and the officers' version of how the police obtained the tape from Lambert vary. Lambert testified that he surrendered the tape to the officers only after they promised to make a copy of it and get the copy back to Lambert that day or the next day. He testified that the only reason he surrendered the tape was the repeated assurances he obtained from the officers that he would get a copy of the tape back. Both officers testified that they simply told Lambert that they were going to take the tape and he surrendered it to them. Sergeant Bonwell testified that Lambert did ask when he would get his tape back, and that he told Lambert he would get it back after the trial of anybody charged if there was anything of evidentiary value on it.

Richard Lee died shortly after the fight. Sometime during the morning of August 1, Des Moines Police Department Detective Randy Dawson telephoned Lambert to tell him of Lee's death. Lambert asked Detective Dawson when he would get the tape back, and Dawson indicated he would not get it back until after the trial of the person accused of killing Lee.

Later on August 1 Lambert called WHO-TV and spoke with Brian J. Greif, Assistant News Director, offering to sell the tape to WHO-TV. Lambert told Greif that he had turned the tape over to the police only after the officer in charge at the homicide scene had promised to return the tape, but that since then the police had indicated they would not give it back. Lambert and Greif reached an agreement that WHO-TV would assist Lambert in retrieving the tape or a copy of it from the police and that once the tape or a copy of it was back in Lambert's possession he would turn it over to WHO-TV for its exclusive ownership and use. WHO-TV would pay Lambert a one time free-lance photographer's fee of at least $100 and not more than $500, depending on the news value of the tape. It was further agreed that no other copies of the tape could be sold to any other individual or television station. On August 9, 1989, a written memorandum of the agreement was signed by Greif and Lambert.

Repeated efforts by Lambert and WHO-TV to obtain back from the defendants the tape or a copy of it have been rejected. The tape is presently in the custody and control of the Polk County Attorney, defendant James Smith.

A few hours after the fight, Dante McKenzie was arrested and a preliminary complaint has been filed charging him with first degree murder. The state has until September 14, 1989, within which to indict him or charge him in a County Attorney's Information. Iowa Rule of Criminal Procedure 27(2)(a).

PROBABILITY OF SUCCESS BY PALMER

Palmer will probably not succeed on the merits on any of the four counts of the complaint.

The Privacy Protection Act, 42 U.S.C. § 2000aa, provides in subsection (a) that: "It shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce," with certain exceptions not here applicable. Section 2000aa-6(a) provides a civil cause of action for damages for any person aggrieved by a search for or seizure of materials in violation of the Privacy Protection Act. If the Privacy Protection Act was violated, it appears that only Lambert, and not Palmer, is the "aggrieved" person. Furthermore, the seizure must be of materials possessed "by a person reasonably believed to have a purpose to disseminate to the public a * * * broadcast * * *." There was nothing about the way Lambert presented himself to Officers Gonzalez and Bonwell that would have led them to reasonably believe that Lambert's purpose was to make a dissemination of the videotape to the public. He was not a news station employee and there is no evidence that he told the officers he intended to sell the videotape to a news station for broadcast to the public, and there is no evidence of any other sort to suggest that the police officers should have reasonably believed that such was his intention. Thus, it is very unlikely that Palmer will succeed on the Privacy Protection Act claim.

It is also unlikely that Palmer will succeed on its theory that it is a third party beneficiary to a contract between Lambert and the defendants. Under Iowa law, the test of whether a party may assert a claim as a third party beneficiary to a contract is whether the contracting parties intended that a third person should receive a benefit which might be enforced in the courts. Phenix Fed. Sav. & Loan v. Shearson Loeb Rhoades, 856 F.2d 1125 (8th Cir.1988); Bailey v. Iowa Beef Processors, Inc., 213 N.W.2d 642, 645 (Iowa 1973). Assuming that there was a contract between Lambert and the defendants, there is no evidence to support a reasonable inference that the defendants intended that Palmer benefit from the agreement.

Finally, as for Palmer, assuming that defendants violated Lambert's federal and state constitutional rights, there is nothing to suggest that Palmer's rights were also violated or that Palmer has acquired any standing to assert a claim of its own based on any violation of Lambert's rights. If Lambert's rights were violated, they were violated many hours before Lambert entered into the agreement with WHO-TV. Under that agreement, the most that WHO-TV has acquired...