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No Immunity for Media Defendants in Ridealong Suit
In the October, 1999, issue of PLN we reported Hanlon v. Berger, 119 S.Ct. 1706 (1999) where the court held that it violates the Fourth Amendment to the U.S. constitution for police to bring media reporters and photographers with them when they enter the homes of people being arrested or searched.
On remand from the supreme court, the Ninth circuit court of appeals dismissed the police official defendants from the lawsuit as the supreme court had held they were entitled to qualified immunity from money damages for their actions.
The appeals court held that the media defendants in this case, including the CNN station, were liable under Bivens for violating the plaintiffs Fourth Amendment rights. However, as a non government entity the media defendants are not entitled to assert a defense of qualified immunity.
The state law and federal claims against CNN were remanded to the district court for further proceedings. See: Berger v. Hanlon, 188 F.3d 1155 (9th Cir. 1999).
On remand from the supreme court, the Ninth circuit court of appeals dismissed the police official defendants from the lawsuit as the supreme court had held they were entitled to qualified immunity from money damages for their actions.
The appeals court held that the media defendants in this case, including the CNN station, were liable under Bivens for violating the plaintiffs Fourth Amendment rights. However, as a non government entity the media defendants are not entitled to assert a defense of qualified immunity.
The state law and federal claims against CNN were remanded to the district court for further proceedings. See: Berger v. Hanlon, 188 F.3d 1155 (9th Cir. 1999).
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Related legal case
Berger v. Hanlon
| Year | 1999 |
|---|---|
| Cite | 188 F.3d 1155 (9th Cir. 1999) |
| Level | Court of Appeals |
Berger v. Hanlon, 188 F.3d 1155, 27 Media L. Rep. 2213, 99 Cal. Daily Op. Serv. 7026 (9th Cir. 08/27/1999)
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 96-35251, No. 96-35266
[4] August 27, 1999
[5] PAUL W. BERGER AND ERMA R. BERGER, PLAINTIFFS-APPELLANTS,
v.
RODNEY C. HANLON; JOEL SCRAFFORD; RICHARD C. BRANZELL; ROBERT PRIEKSAT; KRIS A. MCLEAN; TURNER BROADCASTING SYSTEM, INC., A GEORGIA CORPORATION; ROBERT RAINEY; DONALD HOOPER; UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.
PAUL W. BERGER AND ERMA R. BERGER, PLAINTIFFS-APPELLANTS,
v.
JACK HAMANN; CABLE NEWS NETWORK, INC., A GEORGIA CORPORATION, DEFENDANTS-APPELLEES.
[6] D.C. No. CV-95-00046-JDS D.C. No. CV-95-00046-JDS
[7] Counsel Henry H. Rossbacher, Rossbacher & Associates, Los Angeles, California and Jay F. Lansing, Moses Law Firm, Billings, Montana, for the plaintiffs-appellants. P. Cameron DeVore, Davis, Wright, Tremaine, Seattle, Washington, and W. Anderson Forsythe, Moulton, Bellingham, Longo & Mather, Billings, Montana, for defendants-appellees Cnn and Hamann. Thomas M. Bondy, United States Department of Justice, Washington, D.C., for defendant-appellee United States.
[8] Before: Mary M. Schroeder and Andrew J. Kleinfeld, Circuit Judges, and Rudi M. Brewster,*fn1 District Judge.
[9] The opinion of the court was delivered by: Schroeder, Circuit Judge
[10] FOR PUBLICATION
[11] OPINION
[12] ON REMAND FROM THE UNITED STATES SUPREME COURT
[13] Opinion by Judge Schroeder
[14] OPINION
[15] These matters are before us after the Supreme Court remanded Hanlon v. Berger, 119 S. Ct. 1706 (1999) (per curiam). The Supreme Court vacated our judgment in Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997).
[16] A. Federal Officer Defendants
[17] The Court agreed with our holding that the federal officers violated the Fourth Amendment when, without the Bergers' consent, the officers permitted the media to accompany them during the execution of a search warrant. See Hanlon, 119 S. Ct. at 1706; Wilson v. Layne, 119 S. Ct. 1692 (1999). The Court concluded, however, that the federal officers are entitled to qualified immunity because the law governing this issue was not "clearly established" as of March 1993, when the warrant of the Bergers' ranch was executed. Hanlon, 119 S. Ct. at 1706-07. Therefore, we affirm the district court's grant of summary judgment in favor of the federal officers.
[18] B. Media Defendants
[19] In our original decision, we held that the media defendants were not entitled to summary judgment on the Bergers' Bivens claim because the media participated as "joint actors" with the federal officers. Berger, 129 F.3d at 514-15. The Supreme Court affirmed our holding that a violation of the Fourth Amendment occurred in this case. The media defendants have not asserted and are not entitled to assert qualified immunity as a defense. See Wyatt v. Cole, 504 U.S. 158, 16869 (1992); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Accordingly, we reverse the district court's decision granting summary judgment in favor of the media defendants on the Bergers' Bivens claim. We also reverse the district court's judgment in favor of the media defendants on the Bergers' state law claims for trespass and intentional infliction of emotional distress.
[20] As in our original decision, we affirm the district court's grant of summary judgment to the media defendants on the Federal Wiretap Act claim and on the state law claim for conversion.
[21] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART FOR FURTHER PROCEEDINGS.
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[22] *fn1 Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation.
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 96-35251, No. 96-35266
[4] August 27, 1999
[5] PAUL W. BERGER AND ERMA R. BERGER, PLAINTIFFS-APPELLANTS,
v.
RODNEY C. HANLON; JOEL SCRAFFORD; RICHARD C. BRANZELL; ROBERT PRIEKSAT; KRIS A. MCLEAN; TURNER BROADCASTING SYSTEM, INC., A GEORGIA CORPORATION; ROBERT RAINEY; DONALD HOOPER; UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.
PAUL W. BERGER AND ERMA R. BERGER, PLAINTIFFS-APPELLANTS,
v.
JACK HAMANN; CABLE NEWS NETWORK, INC., A GEORGIA CORPORATION, DEFENDANTS-APPELLEES.
[6] D.C. No. CV-95-00046-JDS D.C. No. CV-95-00046-JDS
[7] Counsel Henry H. Rossbacher, Rossbacher & Associates, Los Angeles, California and Jay F. Lansing, Moses Law Firm, Billings, Montana, for the plaintiffs-appellants. P. Cameron DeVore, Davis, Wright, Tremaine, Seattle, Washington, and W. Anderson Forsythe, Moulton, Bellingham, Longo & Mather, Billings, Montana, for defendants-appellees Cnn and Hamann. Thomas M. Bondy, United States Department of Justice, Washington, D.C., for defendant-appellee United States.
[8] Before: Mary M. Schroeder and Andrew J. Kleinfeld, Circuit Judges, and Rudi M. Brewster,*fn1 District Judge.
[9] The opinion of the court was delivered by: Schroeder, Circuit Judge
[10] FOR PUBLICATION
[11] OPINION
[12] ON REMAND FROM THE UNITED STATES SUPREME COURT
[13] Opinion by Judge Schroeder
[14] OPINION
[15] These matters are before us after the Supreme Court remanded Hanlon v. Berger, 119 S. Ct. 1706 (1999) (per curiam). The Supreme Court vacated our judgment in Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997).
[16] A. Federal Officer Defendants
[17] The Court agreed with our holding that the federal officers violated the Fourth Amendment when, without the Bergers' consent, the officers permitted the media to accompany them during the execution of a search warrant. See Hanlon, 119 S. Ct. at 1706; Wilson v. Layne, 119 S. Ct. 1692 (1999). The Court concluded, however, that the federal officers are entitled to qualified immunity because the law governing this issue was not "clearly established" as of March 1993, when the warrant of the Bergers' ranch was executed. Hanlon, 119 S. Ct. at 1706-07. Therefore, we affirm the district court's grant of summary judgment in favor of the federal officers.
[18] B. Media Defendants
[19] In our original decision, we held that the media defendants were not entitled to summary judgment on the Bergers' Bivens claim because the media participated as "joint actors" with the federal officers. Berger, 129 F.3d at 514-15. The Supreme Court affirmed our holding that a violation of the Fourth Amendment occurred in this case. The media defendants have not asserted and are not entitled to assert qualified immunity as a defense. See Wyatt v. Cole, 504 U.S. 158, 16869 (1992); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996). Accordingly, we reverse the district court's decision granting summary judgment in favor of the media defendants on the Bergers' Bivens claim. We also reverse the district court's judgment in favor of the media defendants on the Bergers' state law claims for trespass and intentional infliction of emotional distress.
[20] As in our original decision, we affirm the district court's grant of summary judgment to the media defendants on the Federal Wiretap Act claim and on the state law claim for conversion.
[21] AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART FOR FURTHER PROCEEDINGS.
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Opinion Footnotes
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[22] *fn1 Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation.