COURTSIDE
by ADAM CANDEUB
Adam Candeub is an attorney at Jones, Day, Reavis & Pogue in Washington, D.C.
Television shows and newspapers frequently provide real-life coverage of law enforcement officers conducting searches or making arrests. Two consolidated cases, Hanlon v. Berger (No. 97-1927) and Wilson v. Layne(No. 98-83), in which the Supreme Court recently granted certiorari, present the question whether law enforcement officers who allow reporters to accompany them on searches and take pictures in private residences violate the Fourth Amendment's guarantee against unreasonable searches and seizures. In addition, these cases present the questions whether officers who conduct such searches and seizures enjoy a qualified immunity from liability for any resulting violations of constitutional rights and whether members of the media can be liable, as joint government actors working under the color of law, for violating the constitutional rights of those whose property or premises are searched.
In Wilson, police officers entered the home of Mr. and Mrs. Charles Wilson in order to execute a warrant for the arrest of their son, Dominic. Accompanying the officers were two reporters from the Washington Post. The police officers questioned the Wilsons and unsuccessfully searched the house for Dominic. During the search, the reporters took pictures of Mr. Wilson wearing only underpants and of Mrs. Wilson wearing a sheer nightgown. They also photographed Mr. Wilson belly-down on his living room floor with a police officer's knee in his back and a gun to his head.
The Wilsons filed suit alleging that the officers violated their Fourth Amendment rights in permitting members of the media to observe and photograph the execution of the arrest warrant. The Fourth Circuit, sitting en banc, rejected this claim on qualified immunity grounds. The court reasoned that, when the warrant was executed, the alleged Fourth Amendment right to avoid media observation and photography of such an event was not clearly established because no other court had ruled explicitly on the matter. The court expressly limited its ruling to the immunity question, and it declined to decide whether the search itself was unconstitutional.
The Ninth Circuit reached the opposite conclusion in Berger. In that case, four special agents of the U.S. Fish and Wildlife Service and an assistant U.S. attorney general executed a search warrant on the ranch of Mr. and Mrs. Paul Berger. The officers believed that Mr. Berger was using a pesticide to kill protected species, including eagles. The officers permitted CNN reporters to accompany them during the search and to take video footage of it. As the court of appeals stated, "[t]he media wanted footage for their environmental programs and the government wanted to publicize its efforts to combat environmental crime."
The Ninth Circuit issued three relevant rulings. First, it held that the search violated the Fourth Amendment. Second, it held that because the relevant legal principles were clearly established when the warrant was executed, the government officials were not entitled to qualified immunity from damages liability. Third, it held that the media defendants were also liable, as state actors, for the violations of the Bergers' constitutional rights. The Ninth Circuit remanded to the district court for reconsideration of the trespass and other tort claims against the media defendants.
In resolving this split among the circuits, the Supreme Court may rule definitively on whether the searches at issue violate the Fourth Amendment. Alternatively, the Court may simply conclude that the relevant legal principles were not clearly established when the searches were conducted and that the officers in these cases are therefore entitled to qualified immunity. Under the latter approach, the Court might not reach the broader question of whether law enforcement officers violate the Fourth Amendment in permitting media representatives to observe and photograph searches and arrests.
In other developments, a newspaper has sought review of the Tenth Circuit's holding that the First Amendment guarantees no right of access to court documents about expenses incurred by government-provided criminal defense counsel. Albuquerque Journal v. Gonzales (98-831) emerged from a high-profile trial of street gang members, all of whom were indigent and therefore entitled under the Criminal Justice Act (CJA) to publicly funded counsel. During the course of proceedings, prosecutors announced they would seek the death penalty for several defendants, and, in response, the defendants publicly claimed that the capital charges would incur enormous, wasteful public expense. In order to discover the prosecution's true cost, a newspaper attempted to gain immediate access to the defendants' counsel's CJA payment vouchers submitted to the court, the materials supporting the vouchers, and all relevant court orders, motions, and hearing transcripts. Ruling that a qualified First Amendment right of access required limited access to those materials, the district court ordered "gross payment totals for each Defendant" to be released on the day following a particular defendant's sentencing and ordered the rest of the materials to be released at the completion of the final sentencing proceeding.
The Tenth Circuit rejected the district court's conclusion that the public had a qualified First Amendment right of access to CJA materials. It consequently reversed the district court's order requiring release of the supporting materials to the vouchers and related court orders at the completion of all the trials. Ruling the district court properly acted within its discretion, the Tenth Circuit affirmed the district court release of the gross payment totals for each defendant at the completion of his sentencing and the release of the CJA vouchers at the completion of all the defendants' sentencing proceedings.