Monday, July 1, 2002
Media Not Liable for Going Along on Illegal Search—Ninth Circuit
By KENNETH OFGANG, Staff Writer/Appellate Courts
A local newspaper whose reporter/photographer accompanied state agents during what was later held to be an illegal search cannot be sued for a federal civil rights violation, the Ninth U.S. Circuit Courts of Appeals ruled Friday.
The Ojai Valley News “was not a state actor; it was simply a private spectator, photographing and videotaping the search independently and for its own purposes,” Judge Stephen Trott wrote for the panel.
The court affirmed the dismissal of Glenda Brunette’s 42 U.S.C. Sec. 1983 claim against the News and the journalist, Tim Dewar. In an unpublished memorandum accompanying the opinion, however, the panel reinstated some of Brunette’s state law claims.
Brunette, a cat breeder, was accused by some of her Ojai neighbors in 1995 of selling diseased animals. The Humane Society of Ventura County, a quasi-public entity whose officers have limited police powers, obtained a warrant to search Brunette’s 11-acre ranch.
Prior to the search, the Humane Society invited the News and a local television station to accompany the officers during the execution of the warrant. The newspaper accepted the invitation, the television station declined.
The search resulted in the seizure of nearly 40 cats, a dog, and a dozen ducklings, none of whom was sick or injured, Trott noted. Several articles concerning Brunette, authored by Dewar, later appeared in the News.
Brunette was charged with criminal animal neglect. The case was thrown out, however, after the Ventura Superior Court Appellate Department ruled that the Humane Society had no authority to execute a search warrant under the law in effect at the time.
Cause of Action
Brunette then sued the Humane Society, along with Dewar and the company that publishes the newspaper, on multiple theories, including violation of civil rights, conversion, trespass, and invasion of privacy. The Humane Society settled, but the case against the newspaper was dismissed by U.S. District Judge Dickran Tevrizian of the U.S. District Court for the Central District of California for failure to state a cause of action.
The district judge was correct, Trott said. The media defendants, unlike the Humane Society offers, were not acting as agents of the state and cannot be held liable under Sec. 1983.
The media did not act jointly with the officers, Trott said, distinguishing Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997). The court in Berger held that the owners of property searched by agents of the Fish and Wildlife Service could sue Cable News Network for its “inextricable involvement...with both the planning and execution of” the search.
In this case, Trott explained, the media was not involved in planning the search, but merely accepted an invitation from the enforcing agency to be present.
“Unlike CNN in Berger, the Media neither planned the raid nor participated in any pre-raid briefings. Nor did the Humane Society in this case disclose to the Media any confidential information like the USFWS disclosed to CNN in Berger,” the judge wrote. “Moreover, Dewar arrived at Brunette’s ranch independently in his own vehicle, after the Humane Society had cut the gate lock and begun to search.”
Trott further contrasted the Humane Society’s invitation to Dewar, who acted on his own and used his own equipment, with the CNN employees who were “outfitted with video cameras” and “surreptitiously miked for sound,” the judge explained.
Judges Sidney R. Thomas and Kim McLane Wardlaw joined in the opinion.
The appeal was argued by Henry H. Rossbacher of Rossbacher & Associates for the plaintiff and Kelli L. Sager of Davis Wright Tremaine LLP for the defendants.
Copyright 2002, Metropolitan News Company