Parker v. Clarke
| Decision Date | 06 November 1995 |
| Docket Number | No. 4:94CV1693-DJS.,4:94CV1693-DJS. |
| Citation | 905 F. Supp. 638 |
| Parties | Sandra C. PARKER, Individually and as next friend of Dana M. Parker, and Dana M. Parker, Plaintiffs, v. Anne-Marie CLARKE, Charles E. Mischeaux, Matthew J. Padberg, Robert T. Haar, Rodney Boyer, Dan Dell, Joseph Richardson, Simon Risk, Terrence Sloan and Multi-Media KSDK, Inc., Defendants. |
| Court | U.S. District Court — Eastern District of Missouri |
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Frank Susman, Susman and Schermer, St. Louis, MO, for Sandra C. Parker and Dana Parker.
Rebecca C. Steward, St. Louis City Counselor Office, St. Louis, MO, for Anne-Marie Clarke, Charles E. Mischeaux, Matthew J. Padberg, Robert T. Haar, Rodney Boyer, Dan Dell, Joseph Richardson and Simon Risk.
Gerald R. Ortbals, Managing Partner, Mary Ann L. Wymore, Greensfelder and Hemker, St. Louis, MO, for Multi-Media KSDK, Inc.
Plaintiffs, a mother and her 16-year-old daughter, bring the instant action pursuant to 42 U.S.C. § 1983 and Missouri tort law alleging that defendants — four members of the Board of Police Commissioners of the City of St. Louis, five police officers of the St. Louis Metropolitan Police Department ("SLPD"), and the corporate employer of a local television news crew — are liable to plaintiffs for violation of their civil rights and for invasion of privacy. The action arises from the filming of the execution of a search warrant at plaintiffs' residence and the broadcast of the film on the local television news. The matter is now before the Court on the parties' cross-motions for summary judgment.
Count I of the second amended complaint, a § 1983 claim, is pled against defendants Clark, Mischeaux, Padberg and Haar (collectively "the Police Board"), and police officers Boyer, Dell, Richardson, Risk and Sloan, and asserts that the actions of these defendants violated plaintiff Sandra Parker's rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution. Count II is Sandra Parker's state law invasion of privacy claim asserted against police officers Boyer, Dell, Richardson, Risk and Sloan. Count III alleges, pursuant to § 1983, that defendant Multi-Media KSDK, Inc. ("KSDK") violated Sandra Parker's rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments. In Count IV, Sandra Parker asserts a common law invasion of privacy claim against KSDK. Counts V through VIII are analogous to Counts I through IV, respectively, but are asserted on behalf of plaintiff Dana Parker.
For purposes of the instant motions, the following facts are undisputed. On February 9, 1994, at approximately 9:30 p.m., defendants Boyer, Dell, Risk and Sloan, along with officers Mark Franklin, Keith Washington and Tom Huesgen, all members of the SLPD's Mobile Reserve Unit, entered the residence occupied by plaintiffs at 5242 Maple, St. Louis, Missouri, for the purpose of executing a search warrant for cocaine, heroin, weapons, currency and drug transaction records on those premises. The officers were accompanied by a KSDK reporter, Randy Jackson, and camera operator, Jeff McCollum, who rode to the scene in a police car with Officers Boyer and Dell. The KSDK cameraman filmed the execution of the search warrant, including footage in which both plaintiffs appear.
Prior to February 9, Randy Jackson of KSDK had contacted persons assigned to the Mobile Reserve Unit, making them aware that he was interested in pursuing a television news story about law enforcement efforts against illegal weapons. He received a call on the morning of February 9, informing him that a weapons investigation was in progress which he might cover. At about the time of the evening shift's roll call at 6:00 p.m., Sgt. Risk informed Officer Boyer that KSDK personnel would be with Boyer on his shift that night. Sgt. Risk did not know at that time that the warrant for 5242 Maple would be executed that evening. Boyer hoped to execute it that evening, depending on whether he could confirm the presence of the target, Travis Martin, at the address. At approximately 9:00 p.m., Boyer was advised by an informant that Martin was in the house; Boyer then determined to execute the search warrant. The KSDK personnel were not aware until this time that a search warrant was to be executed.
The target of the search warrant, Travis Martin, is a relative of plaintiffs and was then a resident of the house. Martin was detained outside the house before the officers entered to conduct the search. The KSDK personnel entered the house behind the police through the unlocked front door. Two weapons and several substances believed to be cocaine, in both rock and powder forms, were seized during the search. Travis Martin was arrested for controlled substance and firearms offenses, but no charges were ultimately filed against Travis Martin or anyone else as a result of the execution of the search warrant.
The KSDK personnel were not given any instructions or directions by any police officers, and were not advised by them of any limitations on their location, conduct or filming. No defendant sought or obtained plaintiffs' oral or written permission to film during the search or to broadcast any portion of the film. Neither did either plaintiff, any defendant, or any other person ask or direct the KSDK personnel to leave the premises. Later the same night, the KSDK personnel accompanied some of the same officers during the execution of another search warrant in a different residence. All or part of the film shot by KSDK was broadcast on KSDK's local news broadcasts on February 9, February 10, February 11 and May 6, 1994.
Lt. Richardson, then commander of the Mobile Reserve Unit, arrived at 5242 Maple after the search had been executed. In his deposition, Lt. Richardson testified that officers on the scene told him that occupants of the house had given their permission for the KSDK personnel to be present and to film inside the house. Lt. Richardson further testified that it was his policy to exclude the media from the scene of a search unless the scene was "secure" and the media had obtained permission from those involved. On the night of the search, Lt. Richardson assumed that his policy had been complied with, and that the KSDK personnel had entered the house only after the search was concluded and the house secured, and with the permission of the occupants.
In his deposition, Police Chief Harmon indicated that no formal or written policy existed as to media personnel accompanying police in the performance of their duties. Chief Harmon testified that he or an Assistant Chief would screen most such requests by the media, with input from the department's Public Information Office. In evaluating such a request, Chief Harmon's primary concerns are the physical safety of all involved, the potential for interference in police activity, the proposed subject matter of the media report and its potential effect on the public perception of the police. Chief Harmon's testimony indicated his view that it would be the responsibility of the media personnel to obtain from individual citizens any permission necessary in connection with media coverage, but that if such permission had not been obtained, the supervising officer on the scene should not allow the media to enter a residence, on the ground that such an entry would constitute a trespass.
In order to recover against KSDK under § 1983, as pled in Counts III and VII of the second amended complaint, plaintiffs must demonstrate that KSDK violated plaintiffs' constitutional rights under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). As explained by the Supreme Court in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982):
Careful adherence to the requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. It also avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed. A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. Whether this is good or bad policy, it is a fundamental fact of our political order.
Id. at 936-37, 102 S.Ct. at 2753. Lugar provides a two-pronged approach to the state action requirement. First, "the deprivation must be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible." Id. at 937, 102 S.Ct. at 2753. Second, "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Id.
KSDK is not alleged to have acted in accordance with a rule of conduct imposed by the State and is not an entity for whom the State is responsible. Accordingly, only the first of the three alternatives of the first Lugar prong appears to have any potential application. KSDK's allegedly unconstitutional conduct — entry into plaintiffs' home and the recording and broadcasting of objects and events inside the home — was not, in the words of Lugar, "caused by the exercise of some right or privilege created by the State." At most, KSDK's acts were committed parallel to and contemporaneous with the police officers' exercise of privileges under state law in the execution of a lawfully obtained search warrant. The first prong of the two-part Lugar test is therefore not met.
A common standard for the application of the second prong of the Lugar test is whether the private party acted as "a willful participant in joint activity with the State or its agents." United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966); see also Murray v. Wal-Mart, Inc., 874 F.2d 555,...
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...own purposes, accompany law enforcement officers onto private property do not act under color of state law. See, e.g., Parker v. Clarke, 905 F.Supp. 638 (E.D.Mo.1995), aff'd in part and rev'd in part on other grounds, 93 F.3d 445 (8th Cir.1996); Berger v. CNN, 1996 WL 390528 (D.Mont.1996); ......
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