Sandra C. Parker v. Rodney Boyer
93 F.3d 445
8th Cir.
1996
Check Treatment

*2 personnel rode to the scene car Before ARNOLD, RICHARD S. Chief Boyer with Officer and Officer Dan Dell. Judge, ARNOLD, MORRIS SHEPPARD After detaining outside, Mr. Martin Sgt. Risk Circuit ROSENBAUM,* officers, District and six other including Boyer and Judge. Dell, executed search warrant at *The ROSENBAUM, HONORABLE Minnesota, JAMES M. sitting by designation. United Judge States District for the District of (N.D.Ohio Jan.6, 1984); Rptr. 1620 L. through Med. They entered residence. Times-Advocate, Rptr. 5 Med. L. Higbee v. door, per- the KSDK front an unlocked 1980); (S.D.Cal. Prahl v. Bro Jan. house. 2372 into the followed sonnel (Wis. samle, 295 N.W.2d 98 Wis.2d weapons two police discovered Although the *3 hand, recent other a Ct.App.1980). On the co- to be believed substances several clearly that established constitu held Mar- ease against Mr. caine, charges filed were no permit the police to law forbids the tional of the search. as a result anyone else tin or during a home search. to enter a media at that it made tapes the broadcast KSDK CBS, Inc., 362 F.Supp. 848 Ayeni v. pro- news on several residence Parkers’ the Mottola, (E.D.N.Y.1994), Ayeni v. 35 aff'd, grams. — denied, (2d Cir.1994), U.S. cert. 680 F.3d noted, did police the district court As the (1995); 1689, -, L.Ed.2d 554 131 115 S.Ct. any instruc- personnel the give not KSDK Harris, 347 65 F.3d Buonocore v. see also search, nor did the before or directions tions Cir.1995) (4th (clearly established constitu on their any limitations impose police the a bringing from prohibited tional law per- police nor KSDK the Neither conduct. to employee into a home company telephone per- the sought obtained Parkers’ or sonnel independent general search an conduct or broadcast videotape the search to mission warrant). any not identified items court videotape. The district resulting the qualified immu assessing testified claims of of that the chief noted also required to examine require nity, to are of policy was we course department’s his that the law at the time videotape to state relevant permission the media to obtain the the the acts of which being committed houses officials were citizens whose private Harlow, 457 U.S. at complain. plaintiffs not been permission If had such searched. 2738; 818-19, v. For Mitchell 102 S.Ct. at testified, officer obtained, supervising the 2806, 530, 105 511, 2817- S.Ct. syth, 472 U.S. the supposed allow not to the scene was on (1985). both because, 18, 411 Because residence, L.Ed.2d 86 private to enter a media the were decided after Ayeni and Buonocore believed, entry con- an would such chief the search, their executed police in this case trespass. a stitute weigh in the balance cannot cases those II. immunity. finding qualified of against a cases those if we two Even believed Parkers’ claims with the deal first We consideration, they would to entitled the officers. against only the at most to indicate to us appear to are entitled officials Government law. do a in the Nor of trend beginnings civil dam immunity from suit for qualified police offend the it self-evident think clearly does not ages if their conduct violate principles when general fourth-amendment a reason rights of which federal established to of the news media members they allow v. Harlow have known. person would able during the house execution someone’s enter 2727, 818, 800, 102 S.Ct. 457 Fitzgerald, U.S. cannot Accordingly, we warrant. of search (1982); v. 2738, Jones 73 396 L.Ed.2d in which the kind of conduct say Cir.1993). (8th 1359, Coonce, 1362 7 F.3d of a a violation was engaged this ease whether reasonable The issue here is principle of clearly constitutional established permitting a known that officers would have they executed the time police, at which during the a house crew to enter television warrant, been should have search their violate warrant would of a execution search therefore erred The district aware. right. fourth-amendment clearly established not officers did concluding that point, on no case Though we have immunity. enjoy qualified provided specific has not Supreme Court courts have question, most guidance on the III. argument that the United States rejected the claims We turn now encroach the media to Constitution forbids against KSDK. person’s property while aon acting of definition “The traditional F.Supp. Zegart, it. v. 577 search Avenson requires that law Hanton, of state 10 color (D.Minn.1984); under v. 958 Moncrief 448

defendant in a 1983 action have exercised IV. by power ‘possessed virtue of state law and reasons, foregoing For the we affirm the possible only wrongdoer made because the is judgment part, of the district court in re- ” authority clothed with state law.’ part. it in verse Atkins, 42, 49, 487 West v. U.S. 108 S.Ct. (1988) 2255, (quoting 101 L.Ed.2d 40 ROSENBAUM, District concurring Classic, 299, 326, United States U.S. specially. 1031, 1043, (1941)); 85 L.Ed. 61 S.Ct. join I opinion, the Court’s but sepa- write Summit, Gentry City Lee’s 10 F.3d rately question to address the constitutional (8th Cir.1993). requirement underlying qualified immunity. the issue of *4 alleged deprivation in of state action suits for view, my In jurisprudence our a demands rights “preserves civil an area of of individual first determination of whether the claimed by limiting the reach of freedom federal law fact, right, constitutional in exists. We have judicial power.” Lugar and federal v. required step missed this quali- first in the Co., 922, 936, Edmondson Oil 457 U.S. 102 immunity analysis. fied 2744, 2753, (1982). 73 L.Ed.2d 482 S.Ct. consistently that, This court has ruled “[i]n injury complained of must have been caused order to determine whether a defendant is by right privilege the exercise some or qualified immunity, entitled to engage we in state, by by created a rule of conduct analysis.” a two-part Manzano v. South Da state, imposed by by person or a for Servs., Dep’t 505, kota Social 60 F.3d 509 937, responsible. whom the state is Id. at (8th Cir.1995) Knox, (citing Boyd v. 47 F.3d 102 at appear S.Ct. 2753-54. The Parkers to (8th 966, Cir.1995)); 968 Siegert see also v. argue only that right KSDK exercised a or 226, Gilley, 231-32, 1789, 500 U.S. 111 S.Ct. privilege by created they the state when 1792-93, (1991). “First, 114 L.Ed.2d 277 we house. entered the must plaintiff determine whether the has al undisputed indepen It is that KSDK acted leged the violation of a right.” constitutional dently police deciding of the in to enter the Manzano, view, 60 F.3d at my 509. In videotape house and the events there and neglected have this determination. It is not that neither KSDK nor the assisted until we required have made this decision performance the other in the sepa of their analyze that we right whether such was respective rate and per tasks. The KSDK clearly at established the time of alleged its sonnel did not execute the search warrant Manzano, violation. 60 F.3d at 509. they entered the house after the find, I would Ayeni consistent with v. Mot did. The television station was there for tola, (2d 680, Cir.1994), 35 F.3d 686 cert. reasons of its own engaged and was in a — denied, -, 1689, U.S. 115 S.Ct. 131 entirely mission distinct from the one that (1995), L.Ed.2d 554 officials exe brought to the Seizing house. an cuting a search warrant violate a resident’s opportunity trespass to is not the same as rights, Fourth they Amendment when admit invoking right privilege. a or agree We with representatives public of the media into a most, the district court that “[a]t KSDK’s home, private citizen’s securing without first acts were parallel committed to and contem express the resident’s consent. poraneous with the officers’ exercise of Having recognized right, join this I would privileges in under state law the execution of the court and determine these officers did lawfully warrant,” obtained search 905 not violate a right constitutional 642, which was F.Supp. at and that KSDK was not clearly they established at the time allowed exercising right privilege by or created the television news crew to enter the Par- state when it decided to enter the kers’ home. home to taking place record the events there. entry KSDK’s into the Parkers’ house and ARNOLD, RICHARD S. Chief videotaping the events that occurred there concurring part dissenting part.

was therefore not an act committed under color of state law. Lugar, join See 457 part U.S. at I all but III of opin- the Court’s 936, 102 S.Ct. at ion. respect With to the issue decided in

449 having do with opinion, portion ac were state employees KSDK’s whether 1983, I of 42 U.S.C. purposes tors view, the news my respectfully dissent. police in en in concert with acted crew “ They ‘will home.

tering the Parkers’ activity joint with participants[s]

ful Adickes S.H. agents....’” or its State 1598, 152, Go., 90 S.Ct. 398 U.S. &

Kress (1970), quoting United 142 L.Ed.2d 26 787, 794, Price, 86 S.Ct. U.S. States (1966). The 1152, 1156-57, L.Ed.2d with the the location came to

news crew if the entered not have and could They did not so first. had not done the time along street at happen

simply being a search was conducted. *5 Plaintiff, TYUS,

Sharon Miller, Appellant,

Sterling S. Jr.; Clay,

Irving Bertha Plaintiffs,

Mitchell, Woodruff, Appellant,

Clarence Plaintiff, Taylor,

Claude Carter, Appellant,

Paula J. Plaintiff, Bosley, Sr.,

Freeman Jr.; Clay, Kenneth L.

William Jones, Appellants, SCHOEMEHL; A. Thomas Vil- C.

Vincent City Aldermen, la; of St. Board of

Louis; Commission- Board of Election Louis, City; City

ers, of St. of St. Louis Appellees. municipal corporation,

No. 93-1811. Appeals, States Court

United

Eighth Circuit. April 1996.

Submitted Aug.

Decided Rehearing Suggestion for

Rehearing and 28, 1996.

En Banc Denied Oct.