S.H.A.R.K. v. Metro Parks Serving Summit County

• Decision Date: 24 August 2007
• Docket Number: No. 06-4009.,06-4009.
• Citation: 499 F.3d 553
• Parties: S.H.A.R.K.; Stephen Hindi, Plaintiffs-Appellants, v. METRO PARKS SERVING SUMMIT COUNTY; Dave Rankin; Justin Simon; White Buffalo, Inc.; Anthony DeNicola; John Doe, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

499 F.3d 553

S.H.A.R.K.; Stephen Hindi, Plaintiffs-Appellants, v. METRO PARKS SERVING SUMMIT COUNTY; Dave Rankin; Justin Simon; White Buffalo, Inc.; Anthony DeNicola; John Doe, Defendants-Appellees.

No. 06-4009.

United States Court of Appeals, Sixth Circuit.

Argued: June 1, 2007.

Decided and Filed: August 24, 2007.

Tomino & Latchney, Medina, Ohio, Mark J. Scarpitti, Oldham & Dowling, Akron, Ohio, John T. McLandrich, Mazanec, Raskin & Ryder, Cleveland, Ohio, for Appellees.

ON BRIEF:

Kenneth D. Myers, Cleveland, Ohio, for Appellants. Nick Tomino, Tomino & Latchney, Medina, Ohio, Mark J. Scarpitti, William D. Dowling, Oldham & Dowling, Akron, Ohio, John T. McLandrich, Frank H. Scialdone, Mazanec, Raskin & Ryder, Cleveland, Ohio, John L. Reyes, Buckingham, Doolittle & Burroughs, Akron, Ohio, for Appellees.

Before: MOORE and GRIFFIN, Circuit Judges; McKINLEY, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiffs-Appellants S.H.A.R.K. (Showing Animals Respect and Kindness) and Stephen Hindi ("Hindi") (collectively "the plaintiffs") appeal the district court's order granting summary judgment to the Defendants-Appellees Metro Parks Serving Summit County ("Metro Parks"); Dave Rankin ("Rankin"); Justin Simon ("Simon"); White Buffalo, Inc. ("White Buffalo"); Anthony DeNicola ("DeNicola"); and John Doe (collectively "the defendants"). The plaintiffs sued under 42 U.S.C. § 1983, the Privacy Protection Act, 42 U.S.C. § 2000aa et seq., and state-law tort, alleging that the defendants violated their First Amendment rights. Although we disagree with the district court's analysis, its decision to grant summary judgment to the defendants was correct; accordingly, we AFFIRM.

I. BACKGROUND

S.H.A.R.K. is an Illinois not-for-profit corporation created to expose inhumane treatment of animals. Hindi is S.H.A.R.K.'s founder and president. Metro Parks is a governmental entity operating public parklands. Rankin and Simon are park rangers employed by Metro Parks. DeNicola is the president of White Buffalo, Inc., a wildlife research and management organization that provides deer-culling services. DeNicola provides sharpshooting training to those who hire White Buffalo.

In November 2003, Metro Parks contracted with White Buffalo and DeNicola to assist in a planned deer-culling operation. The goal was to kill approximately two-hundred deer in four separate parks within Metro Parks's system over a ten-day period. DeNicola trained the participating park rangers so that they would be qualified by the following year to kill deer without DeNicola. A park was closed during the times when the culling was scheduled due to public-safety concerns.

DeNicola was in charge of the rangers for training purposes. Simon testified that, during the times he was detailed to DeNicola, he was to follow DeNicola's directions. Rankin also stated that, during deer culling, DeNicola was in charge of him and the other park rangers. However, Metro Parks official Mike Johnson ("Johnson") was responsible for coordinating the entire operation. On the culling nights, DeNicola answered to Johnson.

Meanwhile, the plaintiffs had plans of their own. On or about February 22, 2004, the plaintiffs entered the parks during daytime hours (while the parks were open to the public) and placed cameras in various areas that they believed to be bait sites. The plaintiffs placed the cameras on the ground in bags. Each bag was covered by leaves, and a wire ran from the bag up the side of a tree. A small camera lens was attached to the bark of the tree with a small, screw-type mount or bracket. The cameras were pre-programmed to record during set hours. The plaintiffs intended to record the entire ten-day deer cull, then select video to share with the news. Each day, Hindi went back to the camera locations to change out the cameras' digital imaging and to obtain the images from the previous night.

On February 29, 2004, during the course of the deer-culling operation, Simon discovered one of the cameras on a tree located several feet from a public road. Simon contacted Eric Fitch ("Fitch"), a Metro Parks supervisor, who came to the site and removed the camera. The rangers were instructed to stop culling for the night; along with DeNicola, they searched for other cameras. In all, six cameras were found that night.¹ None of the cameras and equipment bore information identifying the owners. The rangers took the cameras and equipment to the ranger station where they were treated as "found property." Joint Appendix ("J.A.") at 144, 845 (Dickson Aff. at ¶ 4; Simon Dep. at 55).

The next day, March 1, Rankin and Simon continued to look for, but did not find any, cameras. In accord with Fitch's instruction, Rankin and Simon returned to the ranger station to inventory the cameras and equipment found the previous night. According to DeNicola, Rankin called DeNicola and told him that he was concerned that the cameras may have captured images of Rankin's personal vehicle which Rankin had used to search for cameras. Rankin asked DeNicola to come to the ranger station to see if he could operate the camera. In contrast, Simon and Rankin both testified that neither of them asked DeNicola to come to the ranger station.

According to DeNicola, Rankin was concerned about the video images because Rankin's license plate was visible and neither Rankin nor Metro Parks would be able to control the release of these images, because the cameras were "found property." J.A. at 563 (DeNicola Dep. at 81). DeNicola testified that Rankin asked if DeNicola could erase the images and that DeNicola responded by deleting the images on the camera. When asked if Rankin knew what DeNicola was doing when the latter deleted the images, DeNicola replied, "It was apparent at the time that it was addressing his concerns." J.A. at 564 (DeNicola Dep. at 82).

Rankin denied telling DeNicola to erase the images; Rankin instead stated that DeNicola deleted the images completely of his own accord. However, Rankin and Simon both admitted that they did not try to stop DeNicola from deleting the images. Simon acknowledged that the camera equipment was in the custody and control of both Rankin and Simon himself. Moreover, Simon admitted that DeNicola would not have had access to the cameras without Rankin and Simon allowing him into the area where the cameras were located. No supervisors or officials at Metro Parks approved or authorized the erasure of the images on the video cameras. That same day of the erasures, Hindi contacted Metro Parks and claimed ownership of the cameras and equipment.

On March 2, 2004, Metro Parks contacted local prosecutors in Cuyahoga Falls and Akron about the possibility of filing criminal charges against the plaintiffs. Metro Parks disciplined Simon and Rankin for "serious misconduct," for allowing DeNicola to delete the images, J.A. at 359, 370 (Ranger Simon Report; Ranger Rankin Report), and contacted the prosecutors' offices in Cuyahoga Falls and Akron to determine whether to bring criminal charges against Simon, Rankin, and DeNicola. The prosecutors' offices decided not to bring any criminal charges against any of the plaintiffs or defendants. Metro Parks returned the cameras and equipment to Hindi on March 30, 2004.

The plaintiffs sued the defendants in U.S. district court under 42 U.S.C. § 1983, 42 U.S.C. § 2000aa et seq., and state law. The defendants filed motions for summary judgment. The district court granted the defendants summary judgment on the federal claims and, declining to exercise supplemental jurisdiction, dismissed the state-law claims without prejudice. This appeal follows; we have jurisdiction pursuant to 28 U.S.C. § 1291.

II. ANALYSIS

A. Standard of Review

We review de novo a district court's order granting summary judgment. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004). Summary judgment is proper if the evidence, taken in the light most favorable to the nonmoving party, shows that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); FED.R.CIV.P. 56(c).

B. First Amendment Claims Under 42 U.S.C. § 1983

1. Applicable Test

The parties make all of their First Amendment arguments under the analytical construct set forth in Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005). The district court also analyzed this case under Parks, presumably because the parties agreed that it was the applicable test. However, we believe that the Parks test is inapplicable to the case at bar.

In Parks, a freedom of expression case, we set forth a three-part test for determining whether the government has violated one's free-speech rights: (1) we ask whether the speech is protected under the First Amendment; (2) if so, using the public-forum doctrine, we ascertain whether the applicable forum is public or nonpublic; and (3) applying the appropriate standard for the forum, we ask whether the government's prohibition on speech passes muster under the First Amendment. Id.

The case before us is about access to information as opposed to the right to expression. Although access cases are rooted in First Amendment principles, they have developed along distinctly different lines than have freedom of expression cases. See, e.g., Houchins v. KQED, Inc., 438 U.S. 1, 9-10, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) (setting forth general principles regarding access to information under the First Amendment); Pell v. Procunier, 417 U.S. 817, 834-35, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) (same); Branzburg v. Hayes, 408 U.S. 665, 684, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (same). See also D'Amario v. Providence Civic Ctr. Auth., 639 F.Supp. 1538, 1543 n. 4 (D.R.I.1986), aff'd without opinion, 815 F.2d 692 (1st Cir.1987) (recognizing that access cases require a different analytical approach than do expression cases...