Wilson v. Layne

Reversed by published opinion. Judge WILKINS wrote the majority opinion, in which Chief Judge WILKINSON and Judges NIEMEYER, LUTTIG, and WILLIAMS joined. Judge WIDENER wrote a concurring opinion. Judge MURNAGHAN wrote a dissenting opinion, in which Judges ERVIN, HAMILTON, MICHAEL, and MOTZ joined. OPINION WILKINS, Circuit Judge: Charles H. Wilson and Geraldine E. Wilson (the Wilsons)1 brought this action against federal and state law enforcement officers and others not pertinent to this appeal. The Wilsons allege that their Fourth and Fourteenth Amendment rights were vio — 113 — lated when officers entered their home and sought to execute an arrest warrant for their son. See 42 U.S.C.A. § 1983 (West 1994); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The district court granted summary judgment in part in favor of the officers, but refused to do so on the Wilsons’ claim that the officers violated the Fourth Amendment by permitting two newspaper, reporters tp accompany them into the Wilsons’ home and photograph the officers’ attempt to execute the arrest warrant. The officers appeal from the decision of the district court denying them qualified immunity with respect to this claim. We reverse.2 I. The material facts are not disputed. On April 14,1992, federal and state law enforcement agents were engaged in a joint effort to apprehend fugitives with a history of armed, violent, criminal conduct. A team composed of Joseph L. Perkins and James A. Olivo of the United States Marshals Service and Mark A. Collins, Brian E. Roynestad, and Eric E. Runion of the Montgomery County, Maryland Sheriffs Department was formed to execute an outstanding arrest warrant. The warrant stated: THE STATE OF MARYLAND, TO ANY DULY AUTHORIZED PEACE OFFICER, GREETINGS: YOU ARE HEREBY COMMANDED TO TAKE DOMINIC JEROME WILSON IF HE/SHE BE FOUND IN YOUR BAILIWICK.... J.A. 124. In addition, two newspaper reporters, one outfitted with a stillshot camera, were to accompany the officers to observe and chronicle the execution of the warrant.3 The reporters’ participation was part of a two-week, news-gathering activity by the newspaper. During the early morning hours, the officers proceeded to the address listed in police reports, as well as probation and court records, as the fugitive’s home. Upon entering the residence, the officers encountered a man dressed only in undergarments who was very angry because of the intrusion. The confrontation between the man and the officers ultimately resulted in the officers subduing the man on the floor. In the meantime, a woman dressed in a sheer nightgown emerged from the back of the house. These two individuals were later identified as the Wilsons. The subject of the warrant, the Wilsons’ son, was not present. Throughout these events, the reporters observed and photographed what transpired.4 The Wilsons subsequently brought this action against the federal and state officers who comprised the arrest team that entered their home; the team’s supervisor, Harry Layne; and others not pertinent to this appeal. The Wilsons asserted that their constitutional rights under the Fourth and Fourteenth Amendments were violated by the officers’ actions in three ways: (1) the officers used excessive force in attempting to execute the arrest warrant; (2) the officers lacked probable cause to believe that the fugitive would be found at the Wilsons’ home; and (3) the officers permitted representatives of the media to enter the Wilsons’ home to observe and photograph the execution of the arrest warrant. Ruling on the officers’ motion for summary judgment, the district court dismissed the allegations of excessive force and lack of probable cause, concluding that the evidence viewed in the light most favorable to the Wilsons demonstrated that the amount of force the officers employed was reasonable and that the officers possessed probable cause to believe that the fugitive they sought would be found at the Wilsons’ home. However, the district court rejected the officers’ assertions that allowing the reporters to enter the Wilsons’ home — 114 — without their consent did not violate their constitutional rights. Furthermore, the district court refused to accept the officers’ alternative argument that, at a minimum, they were entitled to qualified immunity because in April 1992, the law was not clearly established that permitting members of the media to accompany law enforcement officers into a private residence during the execution of an arrest warrant was unconstitutional. The officers appeal this latter ruling.5 II. A. Government officials performing discretionary functions are entitled to qualified immunity from liability for civil damages to the extent that “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” E.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Winfield v. Bass, 106 F.3d 525, 530 (4th Cir.1997) (en banc). Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). It protects law enforcement officers from “bad guesses in gray areas” and ensures that they are liable only “for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.1992). Thus, although the exact conduct at issue need not have been held to be unlawful in order for the law governing an officer’s actions to be clearly established, the existing authority must be such that the unlawfulness of the conduct is manifest. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987); Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.1992) (explaining that “[t]he fact that an exact right allegedly violated has not earlier been specifically recognized by any court does not prevent a determination that it was nevertheless ‘clearly established’ for qualified immunity purposes” and that “ ‘[c]learly established’ in this context includes not only already specifically adjudicated rights, but those manifestly included within more general applications of the core constitutional principle invoked”). The law is clearly established such that an officer’s conduct transgresses a bright line when the law has “been authoritatively decided by the Supreme Court, the appropriate United States Court of Appeals, or the highest court of the state.” Wallace v. King, 626 F.2d 1157, 1161 (4th Cir.1980); see Cullinan v. Abramson, 128 F.3d 301, 311 (6th Cir. 1997) (explaining that “[o]rdinarily, at least, in determining whether a right is ‘clearly established’ this court will not look beyond Supreme Court and Sixth Circuit precedent”), cert. denied, — U.S.-, 118 S.Ct. 1560, 140 L.Ed.2d 792 (1998); Jenkins ex rel. Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n. 4 (11th Cir.1997) (en banc) (explaining that “the law can be ‘clearly established’ for qualified immunity purposes only by decisions of the U.S. Supreme Court,[the] Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose”), cert. denied, — U.S.-, 118 S.Ct. 412, 139 L.Ed.2d 315 (1997). In analyzing ah appeal from the rejection of a qualified immunity defense, our first task is to identify the specific right that the plaintiff asserts was infringed by the challenged conduct. See Taylor v. Waters, 81 F.3d 429, 433 (4th Cir.1996). The court then must consider whether, at the time of the claimed violation, that right was clearly established and “ “whether a reasonable person in the official’s position would have known that his conduct would violate that right.’ ” Id. (quoting Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir.1992)). Our review of the denial of summary judgment based on — 115 — qualified immunity is de novo. See Pritchett, 973 F.2d at 313. . B. The constitutional right that the Wilsons claim the officers violated, defined at the appropriate level of specificity, is their Fourth Amendment right to avoid unreasonable searches or seizures resulting from the officers’ decision to permit members of the media who were not authorized to execute the warrant to enter into a private residence, without the homeowners’ consent, to observe and photograph the execution of an arrest warrant. The question before us, then, is whether in April 1992 this right was clearly established and whether a reasonable officer would have understood that the conduct at issue violated it. The Fourth Amendment provides in pertinent part, “The right of the people to be secure in their ... houses ... against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend. IV. By 1992, the Supreme Court had ruled that an entry into a home without a warrant is per se unreasonable unless an exception to the warrant requirement, such as exigent circumstances, exists. See Payton v. New York, 445 U.S. 573, 588-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971). And, it is equally well settled that an officer executing a warrant is limited to those actions expressly authorized by the warrant, see Bivens, 403 U.S. at 394-95 n. 7, 91 S.Ct. at 2004 n. 7, or implicitly authorized because they are reasonable to advance a legitimate law enforcement purpose relating to the warrant or to ensure the officer’s or the' public’s safety, see Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595-96, 69 L.Ed.2d 340 (1981). See also Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.1997) (explaining that “because the touchstone of the constitutionality of an officer’s conduct during a search is reasonableness, when exécuting a search warrant, an officer is limited to conduct that is reasonably necessary to effectuate the warrant’s purpose”). Here, the officers entered the Wilsons’ home pursuant to a valid arrest warrant. The officers did not exceed the scope of the warrant by permitting the reporters who accompanied them into the Wilsons’ home to engage in activities that the officers could not themselves have undertaken consistent with the warrant. Specifically, the reporters did not conduct a search of, or intrude into, any areas of the Wilsons’ home into which the officers would not have been permitted to go in executing the arrest warrant. Further, the reporters’ photographs of the events did not amount to a seizure. The Supreme Court has indicated that a seizure occurs only when there has been a “meaningful interference with an individual’s possessory interests in ... property.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80, L.Ed.2d 85 (1984); see also Arizona v. Hicks, 480 U.S. 321, 324, 107 S.Ct. 1149, 1152, 94 L.Ed.2d 347 (1987) (recording the serial numbers on equipment “did not meaningfully interfere with respondent’s possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure” (internal quotation marks omitted)). But see Ayeni v. Mottola, 35 F.3d 680, 688 (2d Cir.1994). An application of this definition indicates that the photographic images captured by the reporters were not seized within the meaning, of the Fourth Amendment. But, just as importantly for our purposes, it certainly was not clearly established that photographing an arrest constituted a seizure of the images recorded. Thus, reasonable officers under these circumstances had no clearly established law from the Supreme Court, this court, or the Court of Appeals of Maryland from which they necessarily understood that they exceeded the scope of an arrest warrant by permitting reporters to engage in activities in which they themselves could have engaged consistent with the warrant. Furthermore, even if we were to agree with the Wilsons that in 1992 it was clearly established that the Fourth Amendment was violated if officers permitted third parties who were not expressly authorized by the warrant and who were not assisting reasonable law enforcement efforts related to the execution of the warrant to accompany them — 116 — into a residence, we could not conclude that it was clearly established that the conduct in which these officers engaged manifestly fell within the ambit of that rule. When this incident took place in 1992, there was no clear law from the Supreme Court, this court, or the Court of Appeals of Maryland establishing that permitting reporters to observe and photograph the events surrounding the execution of an arrest warrant may not serve a legitimate law enforcement purpose reláted to execution of the warrant. And, reasonable law enforcement officers might conclude that permitting media representatives to observe and photographically record the execution of an arrest warrant does serve such a purpose. For example, the purpose may be served by affording protection to the officers by reducing the possibility that the target of a warrant will resist arrest in the face of recorded evidence of his actions. Additionally, it could be asserted that facilitating accurate reporting that improves public oversight of law-enforcement activities is a legitimate law enforcement purpose because it deters crime, as well as improper conduct by law enforcement officers. In any event, we conclude that reasonable law enforcement officers could have believed that permitting the reporters to observe and photograph the execution of the arrest warrant advanced a legitimate law enforcement purpose related to the execution of the warrant. The dissent acknowledges that neither the Supreme Court nor this court had in 1992 addressed whether law enforcement officers violate the Fourth Amendment by permitting media representatives to accompany them into a private residence to observe and photograph the officers’ execution of an arrest warrant. The dissent nevertheless contends that our conclusion that the officers are entitled to qualified immunity is erroneous, asserting that it was clearly established that the Fourth Amendment prohibited government agents from bringing a private citizen into a home to conduct an independent search or seizure. In support of its argument, the dissent points to the decision of this court in Buonocore v. Harris, 65 F.3d 347 (4th Cir.1995),6 and to those of three other courts of appeals holding on facts similar to those at issue here that officers were not entitled to qualified immunity, see Berger v. Hanlon, 129 F.3d 505 (9th Cir.1997);7 Ayeni v. Mottola, 35 F.3d 680 (2d Cir.1994);8 — 117 — Bills v. Aseltine, 958 F.2d 697 (6th Cir.1992).9 The decisions on which the dissent relies, however, do not persuade us that the officers are not entitled to qualified immunity. Reliance on decisions issued after the events underlying this litigation, whether the decisions were decided by this court or others, is inappropriate. See Mitchell v. Forsyth> 472 U.S. 511, 533-35, 105 S.Ct. 2806, 2819-20, 86 L.Ed.2d 411 (1985). Certainly law enforcement officers need not correctly anticipate future constitutional rulings on pain of personal liability. Further, as noted above, reliance on decisions from other circuits to determine that a given proposition of law is clearly established is inappropriate as a general matter, and we find no basis to depart from the general rule in this instance. Thus, the decisions of the other circuit courts of appeals cannot support a conclusion that the law was clearly established in our circuit. And finally, subsequent to the events giving rise to this litigation, at least one other court of appeals has held on similar facts that law enforcement officers were entitled to qualified immunity. See Parker v. Boyer, 93 F.3d 445, 447 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1081,137 L.Ed.2d 216 (1997). Relying on the dearth of authority holding the conduct in question to be violative of the Fourth Amendment, the existence of decisions holding that these types of actions by law enforcement officers did not transgress constitutional principles,10 and the lack of Supreme Court direction on the question, the Parker court held that officers were entitled to qualified immunity. See id. Given that reasonable jurists can differ on this question, we cannot say that the law was so clear that a reasonable officer must have known his actions transgressed constitutional bounds. — 118 — In asserting that no reasonable officer could have believed that the reporters were serving a legitimate law enforcement purpose, the dissent misunderstands the distinction between the reporters’ aid in the actual execution of the warrant and other legitimate law enforcement purposes that the reporters may have facilitated by accompanying the officers to observe and record the attempt to execute the warrant. The dissent equates these two distinct concepts, assuming that unless, as a matter of historical fact, the officers intended for the reporters actually to assist in the execution of the arrest warrant, reasonable officers must have known “full well that the reporters served no legitimate law enforcement purpose.” Dissent at 125. In support of its argument that the officers did not intend for the reporters to aid in the actual execution of the warrant, the dissent quotes a portion of the statement of the facts in the panel opinion, which observed that the reporters accompanied the officers as part of a two-week news gathering operation that was not designed to serve a law enforcement purpose. The dissent also relies on a portion of the officers’ brief in which they acknowledge that the reporters “were not involved in executing the warrant” but instead were “mere bystanders.” Id. at 125 (internal quotation marks omitted). While it is undoubtedly true that neither the reporters nor the officers envisioned that the reporters would provide assistance to the officers in actually executing the arrest warrant, it is equally true that reasonable officers may have perceived that permitting the reporters to accompany them served a legitimate law enforcement function. Indeed, the media ride-along policy pursuant to which the reporters accompanied the officers indicated that keeping the public informed of the activities of the Marshals Service was a duty of that agency and that media ride alongs advanced that interest. Further, reasonable officers may have believed that the obvious increase to their safety afforded by the presence of the reporters constituted a legitimate law enforcement purpose.11 Moreover, the dissent overlooks that although the officers have readily acknowledged that there was no intent that the reporters aid in the execution of the warrant, the officers consistently have maintained that it was reasonable to believe that the reporters’ presence served a legitimate law enforcement purpose: [I]t is in fact a legitimate function of law enforcement to facilitate accurate reporting on law-enforcement activities and to improve public oversight of those activities by use of the press. These efforts are important because both the deterrence of crime and the deterrence of improper conduct by law-enforcement officers are vital to the broader mission. The formal policy of the United States Marshals Service ... was directed to these ends. Reply Brief of Appellants at 6-7 (footnote omitted). Because the dissent fails to understand the distinction between an intent that the reporters assist in the actual execution of the warrant and a reasonable belief that permitting the reporters to accompany the officers served a legitimate law enforcement purpose, the dissent incorrectly concludes that no reasonable law enforcement officer who knew the former could believe the latter. Rather, in our view, a reasonable law enforcement officer apprised of the fact that the officers did not intend for the reporters to assist in actually executing the warrant nevertheless reasonably could have concluded that permitting the reporters to accompany them while executing the warrant served a legitimate law enforcement purpose. III. We stress that we do not address' whether the officers’ conduct was constitutional or appropriate, only whether the legal landscape when these events occurred was sufficiently developed that it would have been obvious to reasonable officers that the actions at issue were violative of the Fourth Amendment. Because in April 1992 it was not clearly — 119 — established that permitting media representatives to accompany law enforcement officers into a private residence to observe and photograph their attempt to execute an arrest warrant would violate the homeowner’s constitutional rights, we hold that these officers are entitled to qualified immunity. Consequently, we reverse the decision of the district court refusing to grant summary judgment in favor of the officers. REVERSED. Footnotes [1] Raquel Wilson joined the Wilsons as a plaintiff in this action on behalf of her daughter Valencia Snowden, the Wilson’s grandchild who was present during a portion of the actions that form the basis of this lawsuit. For ease of reference, however, we refer only to the Wilsons as prosecuting this litigation. [2] A panel of this court earlier issued a decision reversing the district court. See Wilson v. Layne, 110 F.3d 1071 (4th Cir.1997). A majority of the judges in active service subsequently voted to consider this appeal en banc. After this hearing, a majority of the judges in active service voted to rehear this appeal en banc. [3] At the time, the United States Marshals Service had adopted a written policy permitting members of the news media to "ride along” with its law enforcement officers in order to observe and record operational missions. [4] These photographs have never been published. [5] The district court denied the Wilsons' request to certify for immediate appeal its rulings with respect to the allegations of excessive force and lack of probable cause to permit those issues to be considered in conjunction with the appeal of the question of the officers' entitlement to qualified immunity. As a result, the only issue pending before us is the qualified immunity inquiry. And, because the facts are undisputed, this question presents a purely legal inquiry into whether the law was clearly established when the underlying events occurred. Thus, we may properly consider this appeal. See Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995); Winfield v. Bass, 106 F.3d 525, 528-30 (4th Cir.1997) (enbanc). [6] In Buonocore, an opinion decided long after the events at issue here, officers allowed a security guard to enter a private residence and conduct an independent search for property not authorized by a warrant. Buonocore, 65 F.3d at 350-51. In the appeal from the denial of summary judgment to the officers, we characterized the issue presented as whether it was clearly established on November 24, 1992 that "Fourth Amendment law prohibited government agents from bringing a private citizen into Buonocore’s home to conduct an independent, general search for items not identified in any warrant.” Id. at . 353 (internal quotation marks omitted). And, we held that it was, reasoning: [W]e have no doubt that the Fourth Amendment prohibits government agents from allowing a search warrant to be used to facilitate a private individual’s independent search of another’s home for items unrelated to those specified in the warrant. Such a search is not reasonable. It obviously exceeds the scope of the required specific warrant and furthermore violates the sanctity of private dwellings. Id. at 356 (internal quotation marks omitted). Buonocore, therefore, addressed the question of whether a third party, who is not authorized by the warrant to conduct a search, may accompany law enforcement officers in executing a warrant and undertake an independent search for items not described in the warrant. Of course, the officers here permitted no such general independent search by the reporters. [7] In Berger, decided more than five years after the events at issue here, the Court of Appeals for the Ninth Circuit ruled that officers who permitted media representatives to accompany them in executing a search warrant for a private purpose not related to law enforcement efforts in 1993 were not entitled to qualified immunity. See Berger, 129 F.3d at 510-12. [8] In Ayeni, decided in 1994, the Court of Appeals for the Second Circuit held that it was clearly established in March 1992 that officers violated the Fourth Amendment when they permitted a television crew to enter a private residence and ■ film the execution of a search warrant that provided no authorization for their presence. See Ayeni, 35 F.3d at 684-86. The court reasoned that although there were no decisions expressly holding that searching agents violate the Constitution by bringing members of the press into a ■ home to observe and report on their activities, it had long been established that the objectives of the Fourth Amendment are to preserve the right of privacy to the maximum extent consistent with reasonable exercise of law enforcement duties and that, in the normal situations where war — 117 — rants are required, law enforcement officers' invasion of the privacy of a home must be grounded on either the express terms of a warrant or the implied authority to take reasonable law enforcement actions related to the execution of the warrant. Id. at 686. Furthermore, the court held that an objectively reasonable officer could not have failed to appreciate "that inviting a television crew—or any third party not providing assistance to law enforcement—to participate in a search was [not] -in accordance with Fourth Amendment requirements." Id. [9] In Bills, which was decided approximately one month prior to the incident under review, the court held that law enforcement officers may violate the Fourth Amendment by permitting a security guard to accompany them into a private residence to execute a search warrant and to engage in an independent search for items that were not described in the warrant. See Bills, 958 F.2d at 702-05. The court explained: [W]here an intrusion is justified, whether by warrant or by probable cause and exigent circumstances, police are temporarily placed in control of the premises and its occupants. It is as though the premises were given to the officers in trust for such time as may be required to execute their search in safety and then depart. Officers in unquestioned command of a dweUing may violate that trust and exceed the scope of the authority implicitly granted them by their warrant when they permit unauthorized invasions of privacy by third parties who have no connection to the search warrant or the officers’ purposes for being on the premises. The warrant in this case implicitly authorized the police officers to control and secure the premises during their search____ It did not implicitly authorize them to invite a private security officer to tour plaintiff’s home for the purpose of finding [evidence not specified in the search warrant]---- Id. at 704-05 (internal quotation marks omitted). Based on this reasoning, the Court of Appeals for the Sixth Circuit held that the officers’ conduct presented a jury question concerning whether the officers had exceeded the scope of the search warrant and remanded for further proceedings. See id. at 705. [10] Early cases considering the constitutionality of law enforcement officers allowing members of the media to enter a private residence to observe or record the execution of a warrant are scarce. The few decisions that we have located on this issue are uniform in concluding that such conduct does not violate constitutional principles. See Moncrief v. Hanton, 10 Media L. Rep. (BNA) 1620, 1621-22 (N.D.Ohio Jan. 6, 1984) (rejecting argument that police violated the Fourth Amendment by permitting media to enter home and film arrest on the basis that no protected privacy interest was violated); Higbee v. Times-Advocate, 5 Media L. Rep. (BNA) 2372, 2372-73 (S.D.Cal. Jan. 9, 1980) (declining tb accept plaintiff's assertion, that officers violated his constitutional rights by inviting the press to be present during the execution of a search warrant at his residence); Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768, 774 (Wis. Ct. App.1980) (rejecting claim that officers infringed the Fourth Amendment by allowing a television reporter to enter plaintiff’s property and film search, reasoning "that the filming and television broadcast of a reasonable search and seizure, without more, [do not] result in unreasonableness”). [11] Of course, we do not hold that these purposes actually justified the reporters’ presence while the warrant was executed; we merely hold that in the absence of clearly established law holding that they were not adequate to warrant their presence, reasonable officers may have believed them to be.