Prahl v. Brosamle

Decision Date10 July 1980
Docket NumberNo. 77-849,77-849
Citation295 N.W.2d 768,98 Wis.2d 130
PartiesHelmut PRAHL, Dynatron Research Foundation, Inc., and Dynatron Research Corporation, Plaintiffs-Appellants, v. Bryan BROSAMLE, Forward Communications Corporation, Lieutenant Kuenning, Deputy Hartwig, David Carter, Deputy Hein, Deputy Huber, Richard Homan, Anthony Gerl, Martin Micke, Gregory Martin, City of Madison, County of Dane, and Daniel Rutz, Defendants-Respondents. *
CourtWisconsin Court of Appeals

John P. Koberstein (argued), and Voss, Nesson, Koberstein, Erbach & Voss, S.C., Madison, on brief, for plaintiffs-appellants.

John M. Moore, Madison, argued, for defendants-respondents Bryan Brosamle et al.; Bell, Metzner & Seibold, S.C., Madison, on brief.

Conrad H. Johnson (argued), and Schlotthauer, Johnson, Mohs, MacDonald & Widder, Madison, on brief, for defendants-respondents Lieutenant Kuenning et al.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

This appeal arises out of the trial court's dismissal of the complaint at the close of the plaintiffs' case in a jury trial. The plaintiffs are Dr. Helmut Prahl, Dynatron Research Foundation and Dynatron Research Corporation.

Dr. Prahl, a biochemist, is the executive director of the foundation and the sole stockholder and president of the research corporation. His residence, the offices of the foundation and the laboratory of the research corporation are located in a single building on about six acres fronting on Struck Road in a township adjacent to Madison. Dr. Prahl owns the land and building. The Madison Police Department received a complaint June 18, 1975 that shots had been fired at four boys who were bicycling in the area. Dane County sheriff's deputies and the police investigated the report that night. Employees of Forward Communications, operators of television station WMTV, broadcast newscasts of the incident.

Dr. Prahl seeks damages for a claimed violation of his civil rights from Bryan Brosamle, a newscaster for WMTV, and from the deputies and police, and damages for defamation from Brosamle, two other WMTV newscasters and WMTV. 1 Dr. Prahl, the foundation and the research corporation seek damages for negligent performance of procedures from the deputies, the police, the City of Madison and Dane County, and damages for trespass from Brosamle, WMTV, the deputies and the police. Plaintiffs seek compensatory and punitive damages as to all claims except the claim based upon negligence, as to which only compensatory damages are sought.

Before proceeding to a more detailed statement of the facts, we first note the appropriate standard of review. A motion to dismiss will not be granted at the close of a plaintiff's case if, under any reasonable view of the credible evidence and the inferences from that evidence, the jury could find for the plaintiffs. If a jury could disagree on the facts or on the inferences to be drawn from the facts, the motion must be denied and the facts must be left for determination by the jury. Sec. 805.14(1), Stats.; Gries v. First Nat. Bank of Milwaukee, 82 Wis.2d 774, 776-77, 264 N.W.2d 254 (1978); Nelson v. Travelers Ins. Co., 80 Wis.2d 272, 278, 259 N.W.2d 48 (1977); Household Utilities, Inc. v. Andrews Co., 71 Wis.2d 17, 24, 236 N.W.2d 663 (1976). When determining whether a motion to dismiss should have been granted, the evidence is viewed by this court in the light most favorable to the plaintiffs. Gries, supra; Nolden v. Mutual Benefit Life Ins. Co., 80 Wis.2d 353, 358-59, 259 N.W.2d 75 (1977).

Accordingly, we state only those facts which are favorable to the plaintiffs and which are pertinent to the issues raised on appeal.

After the boys allegedly shot at were interviewed, the police assembled the city's Strategic Weapons and Tactics Squad (SWAT). About 9:30 p. m. officers from the squad positioned themselves behind, to the side and in front of the building. Other officers assembled in squad cars at the Struck Road entrance to the driveway. Lieutenant Kuenning of the sheriff's office took command because the Prahl property was not in Madison. No search or arrest warrant was procured or requested.

The police made a telephone call to Dr. Prahl, requesting that he step outside his residence. Fifteen minutes passed before Dr. Prahl emerged, and when he did so, the police charged the residence on foot and in squad cars. Dr. Prahl was frisked outside his house and the police searched the residence and laboratory. Plaintiffs concede that the search was made with probable cause. The police found a .22 caliber rifle containing seven rounds in the entrance hallway. They found Dr. Prahl's fourteen-year old son in his bedroom. The youth surrendered a pellet gun to the police. Both guns were confiscated.

The police interviewed Dr. Prahl in an office in the building. He said that he often shot gophers on his property. He said that several boys had been playing with antique cars which he kept on the premises, that he asked the boys to leave, and that after a delay to allow them to do so he had shot at a gopher.

Dr. Prahl was not taken into custody. A deputy sheriff told Dr. Prahl that he would be charged with the crime of reckless use of a weapon 2 and told him to report to the district attorney's office June 20.

Brosamle heard the call summoning the SWAT team while he was monitoring a police scanner at WMTV, grabbed a silent movie camera and went to the scene. He introduced himself to the officers on Struck Road and made inquiries. Brosamle asked Lieutenant Kuenning for a ride to the Prahl residence and was told that he could come forward when the situation was under control. Brosamle filmed the squad cars as they charged up the driveway to the building and rode to the building with Lieutenant Kuenning. Brosamle went into the building, positioned himself in the entranceway or vestibule, and filmed officers confiscating the guns and part of the police interview with Dr. Prahl.

Brosamle did not request or receive Dr. Prahl's permission to go upon the premises, to enter the building, or to take pictures inside the building. "No trespassing" signs were located at points on the boundaries of the premises but not at the driveway entrance on Struck Road. There is no evidence that Brosamle, the officers or the deputies knew about the signs. Dr. Prahl saw Brosamle taking pictures but thought that he was an officer or a deputy and did not tell Brosamle to stop or to leave. Brosamle talked to Dr. Prahl's son in a laboratory. Lieutenant Kuenning testified that while on the premises he may have told Brosamle that Dr. Prahl would be charged with reckless use of a weapon.

Brosamle returned to WMTV where he drafted a news script and edited his film. The story was broadcast that evening and the next day. The story consisted of film shots showing police cars driving to the building, officers holding the confiscated guns and Dr. Prahl talking to officers in his office. The gist of the broadcasts was that Dr. Prahl had been charged with the crime of reckless use of a weapon.

Dr. Prahl reported as directed to the district attorney. No charge, however, was made against Dr. Prahl as a result of the June 18 incident.

1. Violation Of Civil Rights

Dr. Prahl's complaint alleges that his constitutional rights were violated by an unreasonable search and seizure, by the filming and broadcasting of that search and seizure without his consent, and by the invasion of his privacy through the release of information obtained in confidence from him in a criminal investigation without his consent.

Dr. Prahl predicates his claim for damages on 42 U.S.C. sec. 1983 which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

The elements for recovery under sec. 1983 are two-fold. First, the plaintiff must prove that the defendant has deprived him of a right secured by the constitution and laws of the United States. Second, the plaintiff must show that the defendant acted under color of state law. Adickes v. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).

The record does not support a conclusion that Brosamle acted under color of state law. Brosamle acted exclusively for his private employer. Section 1983 is directed only to state action. Section 1983 "does not reach purely private conduct . . . ." District of Columbia v. Carter, 409 U.S. 418, 424, 93 S.Ct. 602, 606, 34 L.Ed.2d 613 (1973).

A private person nevertheless acts under color of law for purposes of sec. 1983 if that person is "a willful participant in joint activity with the State or its agents." Adickes, 398 U.S. at 152, 90 S.Ct. at 1606, quoting United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966).

If, however, a private person participates in a joint activity with the state and that activity does not deprive the plaintiff of a right secured by the constitution and laws of the United States, then the first element for recovery under sec. 1983 does not exist. We therefore look to the lawfulness of the search and seizure by the deputies and the police.

Dr. Prahl concedes probable cause for the search and seizure but contends that an otherwise reasonable search or seizure may be rendered unreasonable by circumstances surrounding the event, citing Doe v. Duter, 407 F.Supp. 922 (W.D.Wis.1976). He argues that the filming and television broadcast of the search and seizure are such circumstances.

The circumstances of a body search,...

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