PART III
Ride-alongs and privacy
Ten years ago, police and journalists saw nothing wrong with “ride-alongs,” a newsgathering technique where reporters and photographers accompanied law enforcement officers as they patrolled their beats, served warrants or staked out suspected criminals. Few police reporters have missed the ride-along experience, whether its purpose was to show a rookie reporter what the mean streets are really like or to generate publicity for a police organization’s actions. Some reporters who have developed a relationship with the police are allowed to ride along so they can get the “scoop” on the story – ahead of the competition. The historic antagonism that has often plagued the journalist-police relationship was ameliorated at times by ride-alongs. But two years ago, the Supreme Court said police who bring reporters along when they execute warrants violate the Fourth Amendment rights of homeowners. In Wilson vs. Layne, the news organization involved, The Washington Post, was not sued. However, in Hanlon vs. Berger, a companion case, CNN was named as a defendant and just this summer settled with the plaintiffs. The CNN case involved a 1993 raid by Fish and Wildlife officers on Paul Berger’s ranch in search of evidence that eagles were being poisoned illegally. The CNN crew had worked closely with the federal agents as the raid was set up. They also received permission from an assistant U.S. attorney to ride along on the raid. The news organization argued that agents and media had no reason to believe their actions infringed on constitutional rights. After the raid, Berger was charged with poisoning bald eagles. A jury acquitted him of nearly all charges, but convicted him of a misdemeanor of improper use of a pesticide. In the Washington Post case, the target of the raid was Dominic Wilson, who was wanted by federal authorities on a probation violation from a felony conviction and who was believed to be armed. The marshals and county deputies got an arrest warrant for a home in Maryland where they believed Wilson lived. They entered the home early in the morning with a Washington Post reporter and photographer, catching Wilson’s parents still in bed. Wilson’s father ran into the living room in his briefs when he heard people in the house. Police believed he was the suspect and pinned him to the floor while the photographer shot pictures and the reporter took notes. Wilson’s mother also ran into the room, wearing only a nightgown. She, too, was photographed. After they learned Dominic Wilson was not in the house, the officers and journalists left. Although the pictures were never published, the Wilsons claimed that the mere presence in their home of people who were not authorized by the search warrant violated their constitutional rights. Melanie Henry, the special projects director at KJRH, said the willingness of the courts to find a violation even though the Wilsons’ pictures were not published is a reminder to news organizations. “Lots of times, the attitude is ‘do it first, and ask questions later.’ The instance where the newspaper shot the pictures and didn’t even use them [means] you have to be careful and very aware of what you’re doing.” In both Wilson and Hanlon, the Supreme Court granted the law enforcement officers qualified immunity from the lawsuits, holding that the law was not clearly established in April 1992 (the Wilson raid) or in March 1993 (the Berger raid). Because the state of the law was unclear, the officers could not know they were violating the homeowners’ Fourth Amendment rights against unreasonable search and seizure. The high court let stand a 9th Circuit determination that CNN participated in the raid as “joint actors” with the federal officers. Because qualified immunity is not available to non-state actors, it left the news organization liable for violating the homeowner’s rights. This was despite CNN’s claims
that it was acting in good faith when the reporters and photographers accompanied U.S. Fish and Wildlife officers in the raid, especially since it had received approval of a government attorney. Floyd Abrams, a First Amendment partner in New York’s Cahill Gordon & Reindel law firm, told Jonathan Ringel of the Fulton County Daily Report that CNN’s case was very strong, especially because the government attorney had a written agreement with the network. Nevertheless, after nearly two years of negotiations, the broadcast network settled the case for undisclosed terms in May 2001. Although CNN cited the cooperation it received from the government and the U.S. Marshal’s Service as a defense that it was acting in good faith, that level of cooperation actually might have contributed to CNN’s classification by the court as a joint actor. A U.S. District Court in Georgia ruled in a similar ride-along case that certain media representatives were not state actors, distinguishing the CNN case from the Georgia incident. In his analysis, Judge William C. O’Kelley evaluated the 9th Circuit’s Hanlon opinion on the joint actor issue and the factors that led that court to conclude CNN was acting in conjunction with the government officers. He said those factors include: “The media and government officers had a written contractual commitment to engage in the execution of the search warrant; the government officers shared confidential information with the media; pre-search meetings were conducted; the media attached cameras to government vehicles and wired a law enforcement agent with a microphone.” In other cases where the media was not considered a joint actor, the journalists and police worked independently from each other and the police had no control over the “production, editing or content of the media defendants’ work.” Judge O’Kelley wrote, “The fact that the media defendants were invited to accompany the officers and to film the raid is not enough to turn the defendants into state actors.” If no joint action occurs during the raid in which the media appear to be influenced or to influence the police activity, case law seems to indicate the media organization will generally not be held accountable to federal laws related to constitutional violations by someone acting under “color of state law.” REDEFINED STANDARDS
In the wake of Wilson and Hanlon, police are likely to limit the degree of cooperation with media. Now that the Supreme Court has said emphatically that police serving a warrant may not be accompanied by anyone who is not involved in a law enforcement function, the officers are put on notice. If they do allow others into a private residence, and a resident files suit, the police officer can be held liable. As a result, veteran broadcast journalists said they aren’t seeing the type of shots – what one broadcaster called the “money shot” – that used to be accessible when the cameras followed right along with the raid. Other shots that don’t invade the homeowners’ zone of privacy include officers bringing the handcuffed suspect out of a home (sometimes called a “perp walk”) or pictures afterward of piles of money or drugs. Ride-alongs that take place on public property generally pose no Fourth Amendment issues for journalists or law enforcement to confront. The Pulitzer Prize-winning photograph by Associated Press photographer Alan Diaz of the April 22, 2000, seizure of Elian Gonzalez is a memorable “money shot” – a powerful image that a photographer can capture when the camera is literally in the middle of an explosive situation. In that situation, however, Diaz had spent time with the Gonzalez family and was invited by the family to be in the house. The law enforcement officers in the situation – Immigration and Naturalization Service agents and federal marshals – anticipated but did not invite Diaz’s presence in the home, according to an unnamed source who spoke to The Washington Post soon after the raid. The decision by the attorney general’s office not to obstruct media in that situation may have backfired on federal officials as the picture of an officer pointing a machine gun at a frightened little boy generated claims that the government used excessive force in the seizure. In the wake of the Hanlon decision, it’s even possible that other law enforcement activities to which journalists at times have had limited access – such as routine patrols or “sting” operations – will now be closed. Television shows for which such cooperation is key, such as “Cops,” work closely with law enforcement, masking or otherwise distorting the faces of those who object to the presence of the TV crews with police officers. Since the purpose of those shows is to show the police at work, the identity of those arrested is not as important as the officers’ narratives and actions. But for local television or newspaper photographers, often the police target is the focus of the story, as it was in the raid on the Berger ranch. The results in these cases bring up two different impediments to newsgathering. The first is related to qualified immunity granted to the law enforcement officers. In the wake of the Court’s 1999 ruling, law enforcement is likely to be much less willing to take journalists along. As an example, ride-along guidelines distributed to media organizations from the Long Beach (Calif.) Police Department categorically state, in capital letters and underlined, that the department “does not allow media and/or camera crews in any areas not accessible to the public without prior consent from the person whose reasonable expectation of privacy exists.” But even if a law enforcement agency allows the ride-along, CNN’s classification as a “joint actor” in the Berger raid raises the second impediment – that of the media’s own legal responsibility for the constitutional invasion. Now that the door of liability is ajar, it is still unclear how wide it will open. Cautious news organizations are likely to choose not to tempt the courts in the wake of the CNN decision and subsequent settlement. Many times, however, even with unfettered access to the action, the picture simply doesn’t tell a thousands words. Jack Kresnak, an award-winning veteran reporter at the Detroit Free Press and president of the Detroit SPJ Professional Chapter, said pictures or video are often shot to give news reports an extra visual punch, but that punch is minimal. He said a television station in Detroit recently broadcast footage of a home that was involved in a child neglect case. “It was nothing – just a dirty house. I don’t know what the value is. I don’t think it’s right for journalists to be going into people’s private homes without their permission.” He added: “One of the easiest ways to commit journalism is to follow the coattails of the police. But we just have to rise to the challenge of doing it better.” Part IV
