OCTOBER TERM, 1998
Syllabus
WILSON ET AL.
v. LAYNE, DEPUTY UNITED STATES MARSHAL, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT
No. 98-83. Argued March 24, 1999-Decided May 24,1999
While executing a warrant to arrest petitioners' son in their
home, respondents, deputy federal marshals and local sheriff's
deputies, invited a newspaper reporter and a photographer to
accompany them. The warrant made no mention of such a "media
ride-along." The officers' early morning entry into the home
prompted a confrontation with petitioners, and a protective sweep
revealed that the son was not in the house. The reporters observed
and photographed the incident but were not involved in the
execution of the warrant. Their newspaper never published the
photographs they took of the incident. Petitioners sued the
officers in their personal capacities for money damages under
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (the
federal marshals), and 42 U. S. C. § 1983 (the sheriff's deputies),
contending that the officers' actions in bringing the media to
observe and record the attempted execution of the arrest warrant
violated their Fourth Amendment rights. The District Court denied
respondents' motion for summary judgment on the basis of qualified
immunity. In reversing, the Court of Appeals declined to decide
whether the officers' actions violated the Fourth Amendment, but
concluded that because no court had held at the time of the search
that media presence during a police entry into a residence
constituted such a violation, the right allegedly violated was not
"clearly established" and thus respondents were entitled to
qualified immunity.
Held: A "media ride-along" in a home violates the Fourth
Amendment, but because the state of the law was not clearly
established at the time the entry in this case took place,
respondent officers are entitled to qualified immunity. Pp.
609-618.
(a) The qualified immunity analysis is identical in suits under
§ 1983 and
Bivens. See,
e. g., Graham v.
Connor, 490 U.
S. 386, 394, n. 9. A court evaluating a qualified immunity
claim must first determine whether the plaintiff has alleged the
deprivation of a constitutional right, and, if so, proceed to
determine whether that right was clearly established at the time of
the violation.
Conn v.
Gabbert, ante, at 290.
P.609.
604
Syllabus
(b) It violates the Fourth Amendment rights of homeowners for
police to bring members of the media or other third parties into
their home during the execution of a warrant when the presence of
the third parties in the home was not in aid of the warrant's
execution. The Amendment embodies centuries-old principles of
respect for the privacy of the home, which apply where, as here,
police enter a home under the authority of an arrest warrant in
order to take into custody the suspect named in the warrant,
Payton v.
New York, 445 U. S. 573, 602-604.
It does not necessarily follow from the fact that the officers were
entitled to enter petitioners' home that they were entitled to
bring a reporter and a photographer with them. The Fourth Amendment
requires that police actions in execution of a warrant be related
to the objectives of the authorized intrusion. See,
e. g.,
Arizona v.
Hicks, 480 U. S. 321, 325.
Certainly the presence of the reporters, who did not engage in the
execution of the warrant or assist the police in their task, was
not related to the objective of the authorized intrusion, the
apprehension of petitioners' son. Taken in their entirety, the
reasons advanced by respondents to support the reporters'
presence-publicizing the government's efforts to combat crime,
facilitating accurate reporting on law enforcement activities,
minimizing police abuses, and protecting suspects and the
officers-fall short of justifying media ride-alongs. Although the
presence of third parties during the execution of a warrant may in
some circumstances be constitutionally permissible, the presence of
these third parties was not. Pp. 609-614.
(c) Petitioners' Fourth Amendment right was not clearly
established at the time of the search. "Clearly established" for
qualified immunity purposes means that the contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right. His very
action need not previously have been held unlawful, but in the
light of pre-existing law its unlawfulness must be apparent.
E.
g., Anderson v.
Creighton, 483 U. S. 635, 640. It
was not unreasonable for a police officer at the time at issue to
have believed that bringing media observers along during the
execution of an arrest warrant (even in a home) was lawful. First,
the constitutional question presented by this case is by no means
open and shut. Accurate media coverage of police activities serves
an important public purpose, and it is not obvious from the Fourth
Amendment's general principles that the officers' conduct in this
case violated the Amendment. Second, petitioners have not cited any
cases of controlling authority in their jurisdiction at the time in
question which clearly established the rule on which they seek to
rely, nor have they identified a consensus of cases of persuasive
authority such that a reasonable officer could not have believed
that his actions were lawful. Finally, the federal marshals in this
case relied
605
on a Marshals Service ride-along policy which explicitly
contemplated media entry into private homes, and the sheriff's
deputies had a ridealong program that did not expressly prohibit
such entries. The state of the law was at best undeveloped at the
relevant time, and the officers cannot have been expected to
predict the future course of constitutional law.
E. g.,
Procunier v.
Navarette, 434 U. S. 555, 561. Pp.
614-618.
141 F.3d
111, affirmed.
REHNQUIST, C. J., delivered the opinion for a unanimous Court
with respect to Parts I and II, and the opinion of the Court with
respect to Part III, in which O'CONNOR, SCALIA, KENNEDY, SOUTER,
THOMAS, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed an
opinion concurring in part and dissenting in part,
post, p.
618.
Richard K. Willard argued the cause for petitioners.
With him on the briefs were David H. Coburn, James S. Felt,
Richard Seligman, Steven R. Shapiro, Arthur B. Spitzer, and Dwight
H. Sullivan.
Lawrence P. Fletcher-Hill, Assistant Attorney General of
Maryland, argued the cause for the state respondents. With him on
the brief were J.
Joseph Curran, Jr., Attorney General,
Carmen M. Shepard, Deputy Attorney General, and
Andrew H.
Baida and
John B. Howard, Jr., Assistant Attorneys
General.
Richard A. Cordray filed a brief for the federal
respondents. *
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
While executing an arrest warrant in a private home, police
officers invited representatives of the media to accompany them. We
hold that such a "media ride-along" does violate the Fourth
Amendment, but that because the state
* A brief of amici curiae urging affirmance was filed for ABC,
Inc., et al. by Lee Levine, James E. Grossberg, Jay Ward Brown,
Henry S. Hoberman, Richard M. Schmidt, Jr., Susanna M. Lowy, Harold
W Fuson, Jr., Barbara Wartelle Wall, Ralph E. Goldberg, Karlene W
Goller, Jerry S. Birenz, Slade R. Metcalf, Jack N. Goodman, David
S. J. Brown, Rene P. Milam, George Freeman, and Jane E.
Kirtley.
606
of the law was not clearly established at the time the search in
this case took place, the officers are entitled to the defense of
qualified immunity.
I
In early 1992, the Attorney General of the United States
approved "Operation Gunsmoke," a special national fugitive
apprehension program in which United States Marshals worked with
state and local police to apprehend dangerous criminals. The
"Operation Gunsmoke" policy statement explained that the operation
was to concentrate on "armed individuals wanted on federal and/or
state and local warrants for serious drug and other violent
felonies." App. 15. This effective program ultimately resulted in
over 3,000 arrests in 40 metropolitan areas. Brief for Federal
Respondents Layne et al. 2.
One of the dangerous fugitives identified as a target of
"Operation Gunsmoke" was Dominic Wilson, the son of petitioners
Charles and Geraldine Wilson. Dominic Wilson had violated his
probation on previous felony charges of robbery, theft, and assault
with intent to rob, and the police computer listed "caution
indicators" that he was likely to be armed, to resist arrest, and
to "assaul[t] police." App. 40. The computer also listed his
address as 909 North StoneStreet Avenue in Rockville, Maryland.
Unknown to the police, this was actually the home of petitioners,
Dominic Wilson's parents. Thus, in April 1992, the Circuit Court
for Montgomery County issued three arrest warrants for Dominic
Wilson, one for each of his probation violations. The warrants were
each addressed to "any duly authorized peace officer," and
commanded such officers to arrest him and bring him "immediately"
before the Circuit Court to answer an indictment as to his
probation violation. The warrants made no mention of media presence
or assistance.1
1 The warrants were identical in all relevant respects. By way
of example, one of them read as follows:
607
In the early morning hours of April 16, 1992, a Gunsmoke team of
Deputy United States Marshals and Montgomery County Police officers
assembled to execute the Dominic Wilson warrants. The team was
accompanied by a reporter and a photographer from the Washington
Post, who had been invited by the Marshals to accompany them on
their mission as part of a Marshals Service ride-along policy.
At around 6:45 a.m., the officers, with media representatives in
tow, entered the dwelling at 909 North StoneStreet Avenue in the
Lincoln Park neighborhood of Rockville. Petitioners Charles and
Geraldine Wilson were still in bed when they heard the officers
enter the home. Petitioner Charles Wilson, dressed only in a pair
of briefs, ran into the living room to investigate. Discovering at
least five men in street clothes with guns in his living room, he
angrily demanded that they state their business, and repeatedly
cursed the officers. Believing him to be an angry Dominic Wilson,
the officers quickly subdued him on the floor. Geraldine Wilson
next entered the living room to investigate, wearing only a
nightgown. She observed her husband being restrained by the armed
officers.
When their protective sweep was completed, the officers learned
that Dominic Wilson was not in the house, and they departed. During
the time that the officers were in the home, the Washington Post
photographer took numerous pictures. The print reporter was also
apparently in the living room observing the confrontation between
the police and
"The State of Maryland, to any duly authorized peace officer,
greeting: you are hereby commanded to take Dominic Jerome Wilson if
he/she shall be found in your bailiwick, and have him immediately
before the Circuit Court for Montgomery County, now in session, at
the Judicial Center, in Rockville, to answer an indictment, or
information, or criminal appeals unto the State of Maryland, of and
concerning a certain charge of Robbery [Violation of Probation] by
him committed, as hath been presented, and so forth. Hereof fail
not at your peril, and have you then and there this writ. Witness."
App. 36-37.
608
Charles Wilson. At no time, however, were the reporters involved
in the execution of the arrest warrant. Brief for Federal
Respondents Layne et al. 4. The Washington Post never published its
photographs of the incident.
Petitioners sued the law enforcement officials in their personal
capacities for money damages under
Bivens v.
Six Unknown
Fed. Narcotics Agents, 403 U. S. 388 (1971) (the
U. S. Marshals Service respondents), and Rev. Stat. § 1979, 42 U.
S. C. § 1983 (the Montgomery County Sheriff's Department
respondents). They contended that the officers' actions in bringing
members of the media to observe and record the attempted execution
of the arrest warrant violated their Fourth Amendment rights. The
District Court denied respondents' motion for summary judgment on
the basis of qualified immunity.
On interlocutory appeal to the Court of Appeals, a divided panel
reversed and held that respondents were entitled to qualified
immunity. The case was twice reheard en banc, where a divided Court
of Appeals again upheld the defense of qualified immunity. The
Court of Appeals declined to decide whether the actions of the
police violated the Fourth Amendment. It concluded instead that
because no court had held (at the time of the search) that media
presence during a police entry into a residence violated the Fourth
Amendment, the right allegedly violated by respondents was not
"clearly established" and thus qualified immunity was proper.
141 F.3d
111 (CA4 1998). Five judges dissented, arguing that the
officers' actions did violate the Fourth Amendment, and that the
clearly established protections of the Fourth Amendment were
violated in this case.
Id., at 119 (opinion of Murnaghan,
J.)
Recognizing a split among the Circuits on this issue, we granted
certiorari in this case and another raising the same question,
Hanlon v.
Berger, 525 U. S. 981 (1998), and now
affirm the Court of Appeals, although by different reasoning.
609
II
Petitioners sued the federal officials under
Bivens and
the state officials under § 1983. Both
Bivens and § 1983
allow a plaintiff to seek money damages from government officials
who have violated his Fourth Amendment rights. See § 1983;
Bivens, supra, at 397. But government officials performing
discretionary functions generally are granted a qualified immunity
and are "shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known."
Harlow v.
Fitzgerald, 457 U. S. 800, 818
(1982).
Although this case involves suits under both § 1983 and
Bivens, the qualified immunity analysis is identical under
either cause of action. See,
e. g., Graham v.
Connor,
490 U. S. 386, 394, n. 9 (1989);
Malley v.
Briggs, 475 U.
S. 335, 340, n. 2 (1986). A court evaluating a claim of
qualified immunity "must first determine whether the plaintiff has
alleged the deprivation of an actual constitutional right at all,
and if so, proceed to determine whether that right was clearly
established at the time of the alleged violation."
Conn v.
Gabbert, ante, at 290. This order of procedure is designed
to "spare a defendant not only unwarranted liability, but
unwarranted demands customarily imposed upon those defending a long
drawn out lawsuit."
Siegert v.
Gilley, 500 U. S. 226, 232
(1991). Deciding the constitutional question before addressing the
qualified immunity question also promotes clarity in the legal
standards for official conduct, to the benefit of both the officers
and the general public. See
County of Sacramento v.
Lewis, 523 U.
S. 833, 840-842, n. 5 (1998). We now turn to the Fourth
Amendment question.
In 1604, an English court made the now-famous observation that
"the house of every one is to him as his castle and fortress, as
well for his defence against injury and violence, as for his
repose."
Semayne's Case, 5 Co. Rep. 91a, 91b, 77
610
Eng. Rep. 194, 195 (K. B.). In his Commentaries on the Laws of
England, William Blackstone noted that
"the law of England has so particular and tender a regard to the
immunity of a man's house, that it stiles it his castle, and will
never suffer it to be violated with impunity: agreeing herein with
the sentiments of antient Rome .... For this reason no doors can in
general be broken open to execute any civil process; though, in
criminal causes, the public safety supersedes the private." 4
Commentaries 223 (1765-1769).
The Fourth Amendment embodies this centuries-old principle of
respect for the privacy of the home: "The right of the people to be
secure in their persons,
houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U. S. Const.,
Arndt. 4 (emphasis added). See also
United States v.
United States Dist. Court for Eastern Dist. of Mich.,
407 U. S. 297,
313 (1972) ("[P]hysical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed").
Our decisions have applied these basic principles of the Fourth
Amendment to situations, like the one in this case, in which police
enter a home under the authority of an arrest warrant in order to
take into custody the suspect named in the warrant. In
Payton v.
New York, 445 U. S. 573, 602
(1980), we noted that although clear in its protection of the home,
the common-law tradition at the time of the drafting of the Fourth
Amendment was ambivalent on the question whether police could enter
a home without a warrant. We were ultimately persuaded that the
"overriding respect for the sanctity of the home that has been
embedded in our traditions since the origins of the Republic" meant
that absent a warrant or exigent circumstances, police could
not
611
enter a home to make an arrest.
Id., at 601, 603-604. We
decided that "an arrest warrant founded on probable cause
implicitly carries with it the limited authority to enter a
dwelling in which the suspect lives when there is reason to believe
the suspect is within."
Id., at 603.
Here, of course, the officers had such a warrant, and they were
undoubtedly entitled to enter the Wilson home in order to execute
the arrest warrant for Dominic Wilson. But it does not necessarily
follow that they were entitled to bring a newspaper reporter and a
photographer with them. In
Horton v.
California,
496 U. S. 128,
140 (1990), we held "[i]f the scope of the search exceeds that
permitted by the terms of a validly issued warrant or the character
of the relevant exception from the warrant requirement, the
subsequent seizure is unconstitutional without more." While this
does not mean that every police action while inside a home must be
explicitly authorized by the text of the warrant, see
Michigan v.
Summers, 452 U. S. 692, 705 (1981)
(Fourth Amendment allows temporary detainer of homeowner while
police search the home pursuant to warrant), the Fourth Amendment
does require that police actions in execution of a warrant be
related to the objectives of the authorized intrusion, see
Arizona v.
Hicks, 480 U. S. 321, 325
(1987). See also
Maryland v.
Garrison, 480 U. S. 79, 87 (1987)
("[T]he purposes justifying a police search strictly limit the
permissible extent of the search").
Certainly the presence of reporters inside the home was not
related to the objectives of the authorized intrusion. Respondents
concede that the reporters did not engage in the execution of the
warrant, and did not assist the police in their task. The reporters
therefore were not present for any reason related to the
justification for police entry into the home-the apprehension of
Dominic Wilson.
This is not a case in which the presence of the third parties
directly aided in the execution of the warrant. Where the police
enter a home under the authority of a warrant to
612
search for stolen property, the presence of third parties for
the purpose of identifying the stolen property has long been
approved by this Court and our common-law tradition. See,
e. g.,
Entick v.
Carrington, 19 How. St. Tr. 1029, 1067 (K. B.
1765) (in search for stolen goods case, "'[t]he owner must swear
that the goods are lodged in such a place. He must attend at the
execution of the warrant to shew them to the officer, who must see
that they answer the description") (quoted with approval in
Boyd v.
United States, 116 U. S. 616, 628
(1886)).
Respondents argue that the presence of the Washington Post
reporters in the Wilsons' home nonetheless served a number of
legitimate law enforcement purposes. They first assert that
officers should be able to exercise reasonable discretion about
when it would "further their law enforcement mission to permit
members of the news media to accompany them in executing a
warrant." Brief for Federal Respondents Layne et al. 15. But this
claim ignores the importance of the right of residential privacy at
the core of the Fourth Amendment. It may well be that media
ride-alongs further the law enforcement objectives of the police in
a general sense, but that is not the same as furthering the
purposes of the search. Were such generalized "law enforcement
objectives" themselves sufficient to trump the Fourth Amendment,
the protections guaranteed by that Amendment's text would be
significantly watered down.
Respondents next argue that the presence of third parties could
serve the law enforcement purpose of publicizing the government's
efforts to combat crime, and facilitate accurate reporting on law
enforcement activities. There is certainly language in our opinions
interpreting the First Amendment which points to the importance of
"the press" in informing the general public about the
administration of criminal justice. In
Cox Broadcasting
Corp. v.
Cohn, 420 U. S. 469, 491492
(1975), for example, we said "in a society in which each individual
has but limited time and resources with which to
613
observe at first hand the operations of his government, he
relies necessarily upon the press to bring to him in convenient
form the facts of those operations." See also
Richmond
Newspapers, Inc. v.
Virginia, 448 U. S. 555, 572-573
(1980). No one could gainsay the truth of these observations, or
the importance of the First Amendment in protecting press freedom
from abridgment by the government. But the Fourth Amendment also
protects a very important right, and in the present case it is in
terms of that right that the media ridealongs must be judged.
Surely the possibility of good public relations for the police
is simply not enough, standing alone, to justify the ride-along
intrusion into a private home. And even the need for accurate
reporting on police issues in general bears no direct relation to
the constitutional justification for the police intrusion into a
home in order to execute a felony arrest warrant.
Finally, respondents argue that the presence of third parties
could serve in some situations to minimize police abuses and
protect suspects, and also to protect the safety of the officers.
While it might be reasonable for police officers to themselves
videotape home entries as part of a "quality control" effort to
ensure that the rights of homeowners are being respected, or even
to preserve evidence, cf.
Ohio v.
Robinette, 519 U. S. 33, 35 (1996)
(noting the use of a "mounted video camera" to record the details
of a routine traffic stop), such a situation is significantly
different from the media presence in this case. The Washington Post
reporters in the Wilsons' home were working on a story for their
own purposes. They were not present for the purpose of protecting
the officers, much less the Wilsons. A private photographer was
acting for private purposes, as evidenced in part by the fact that
the newspaper and not the police retained the photographs. Thus,
although the presence of third parties during the execution of a
warrant may in some circumstances be constitutionally permissible,
see
supra, at 611-612, the presence of
these third
parties was not.
614
The reasons advanced by respondents, taken in their entirety,
fall short of justifying the presence of media inside a home. We
hold that it is a violation of the Fourth Amendment for police to
bring members of the media or other third parties into a home
during the execution of a warrant when the presence of the third
parties in the home was not in aid of the execution of the
warrant.2
III
Since the police action in this case violated petitioners'
Fourth Amendment right, we now must decide whether this right was
clearly established at the time of the search. See
Siegert,
500 U. S., at 232-233. As noted above, Part II,
supra,
government officials performing discretionary functions generally
are granted a qualified immunity and are "shielded from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known."
Harlow v.
Fitzgerald, 457 U. S., at 818. What this means in practice
is that "whether an official protected by qualified immunity may be
held personally liable for an allegedly unlawful official action
generally turns on the 'objective legal reasonableness' of the
action, assessed in light of the legal rules that were 'clearly
established' at the time it was taken."
Anderson v.
Creighton, 483
U. S. 635, 639 (1987) (citing
Harlow, supra, at 819);
see also
Graham v.
Connor, 490 U. S., at 397.
In
Anderson, we explained that what "clearly established"
means in this context depends largely "upon the level of generality
at which the relevant 'legal rule' is to be identified." 483 U. S.,
at 639. "[C]learly established" for purposes of
2 Even though such actions might violate the Fourth Amendment,
if the police are lawfully present, the violation of the Fourth
Amendment is the presence of the media and not the presence of the
police in the home. We have no occasion here to decide whether the
exclusionary rule would apply to any evidence discovered or
developed by the media representatives.
615
qualified immunity means that "[t]he contours of the right must
be sufficiently clear that a reasonable official would understand
that what he is doing violates that right. This is not to say that
an official action is protected by qualified immunity unless the
very action in question has previously been held unlawful, but it
is to say that in the light of preexisting law the unlawfulness
must be apparent."
Id., at 640 (citations omitted); see also
United States v.
Lanier, 520 U. S. 259, 270
(1997).
It could plausibly be asserted that any violation of the Fourth
Amendment is "clearly established," since it is clearly established
that the protections of the Fourth Amendment apply to the actions
of police. Some variation of this theory of qualified immunity is
urged upon us by petitioners, Brief for Petitioners 37, and seems
to have been at the core of the dissenting opinion in the Court of
Appeals, see 141 F. 3d, at 123. However, as we explained in
Anderson, the right allegedly violated must be defined at
the appropriate level of specificity before a court can determine
if it was clearly established. 483 U. S., at 641. In this case, the
appropriate question is the objective inquiry whether a reasonable
officer could have believed that bringing members of the media into
a home during the execution of an arrest warrant was lawful, in
light of clearly established law and the information the officers
possessed. Cf.
ibid.
We hold that it was not unreasonable for a police officer in
April 1992 to have believed that bringing media observers along
during the execution of an arrest warrant (even in a home) was
lawful. First, the constitutional question presented by this case
is by no means open and shut. The Fourth Amendment protects the
rights of homeowners from entry without a warrant, but there was a
warrant here. The question is whether the invitation to the media
exceeded the scope of the search authorized by the warrant.
Accurate media coverage of police activities serves an important
public purpose, and it is not obvious from the general
principles
616
of the Fourth Amendment that the conduct of the officers in this
case violated the Amendment.
Second, although media ride-alongs of one sort or another had
apparently become a common police practice,3 in 1992 there were no
judicial opinions holding that this practice became unlawful when
it entered a home. The only published decision directly on point
was a state intermediate court decision which, though it did not
engage in an extensive Fourth Amendment analysis, nonetheless held
that such conduct was not unreasonable.
Prahl v.
Brosamle, 98 Wis. 2d 130, 154155, 295 N. W. 2d 768, 782
(App. 1980). From the federal courts, the parties have only
identified two unpublished District Court decisions dealing with
media entry into homes, each of which upheld the search on
unorthodox non-Fourth Amendment right to privacy theories.
Moncriefv. Hanton, 10 Media L. Rptr. 1620 (ND Ohio 1984);
Higbee v.
TimesAdvocate, 5 Media L. Rptr. 2372 (SD
Cal. 1980). These cases, of course, cannot "clearly establish" that
media entry into homes during a police ride-along violates the
Fourth Amendment.
At a slightly higher level of generality, petitioners point to
Bills v.
Aseltine, 958 F.2d
697 (CA6 1992), in which the Court of Appeals for the
Sixth Circuit held that there were material issues of fact
precluding summary judgment on the question whether police exceeded
the scope of a search warrant by allowing a private security guard
to participate in the search to identify stolen property other than
that described in the warrant.
Id., at 709.
Bills,
which was decided a mere five weeks before the events of this case,
did anticipate to day's holding that police may not bring along
third parties during an entry into a private home pursuant
3 See,
e. g., Florida Publishing Co. v.
Fletcher,
340 So. 2d 914, 919 (1976) (it" 'is a widespread practice of
long-standing'" for media to accompany officers into homes), cert.
denied, 431 U. S. 930 (1977); Zoglin, Live on the Vice Beat, Time,
Dec. 22, 1986, p. 60 (noting "the increasingly common practice of
letting TV crews tag along on drug raids").
617
to a warrant for purposes unrelated to those justifying the
warrant.
Id., at 706. However, we cannot say that even in
light of
Bills, the law on third-party entry into homes was
clearly established in April 1992. Petitioners have not brought to
our attention any cases of controlling authority in their
jurisdiction at the time of the incident that clearly established
the rule on which they seek to rely, nor have they identified a
consensus of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were lawful.
Finally, important to our conclusion was the reliance by the
United States marshals in this case on a Marshals Service
ride-along policy that explicitly contemplated that media who
engaged in ride-alongs might enter private homes with their cameras
as part of fugitive apprehension arrests.4 The Montgomery County
Sheriff's Department also at this time had a ride-along program
that did not expressly prohibit media entry into private homes.
Deposition of Sheriff Raymond M. Kight, in No. PJM-94-1718, p. 8.
Such a policy, of course, could not make reasonable a belief that
was contrary to a decided body of case law. But here the state of
the law as to third parties accompanying police on home entries was
at best undeveloped, and it was not unreasonable for law
enforcement officers to look and rely on their formal ridealong
policies.
Given such an undeveloped state of the law, the officers in this
case cannot have been "expected to predict the future course of
constitutional law."
Procunier v.
Navarette, 434
4 A booklet distributed to marshals recommended that "fugitive
apprehension cases ... normally offer the best possibilities for
ride-alongs." App. 4-5. In its discussion of the best way to make
ride-alongs useful to the media and portray the Marshals Service in
a favorable light, the booklet noted that reporters were likely to
want to be able to shoot "good action footage, not just a mop-up
scene." It advised agents that "[i]f the arrest is planned to take
place inside a house or building, agree ahead of time on when the
camera can enter and who will give the signal."
Id., at
7.
618
Opinion of STEVENS, J.
u. S. 555, 562 (1978). See also
Wood v.
Strickland, 420 U. S. 308, 321
(1975);
Pierson v.
Ray, 386 U. S. 547, 557
(1967). Between the time of the events of this case and today's
decision, a split among the Federal Circuits in fact developed on
the question whether media ride-alongs that enter homes subject the
police to money damages. See 141 F. 3d, at 118
119; Ayeni v.
Mottola, 35 F.3d
680 (CA2 1994), cert. denied, 514 U. S. 1062 (1995);
Parker v.
Boyer, 93 F.3d
445 (CA8 1996), cert. denied, 519 U. S. 1148 (1997);
Berger v.
Hanlon, 129 F.3d
505 (CA9 1997), cert. granted, 525 U. S. 981 (1998). If judges
thus disagree on a constitutional question, it is unfair to subject
police to money damages for picking the losing side of the
controversy.
For the foregoing reasons, the judgment of the Court of Appeals
is affirmed.
It is so ordered.
JUSTICE STEVENS, concurring in part and dissenting in part.
Like every other federal appellate judge who has addressed the
question, I share the Court's opinion that it violates the Fourth
Amendment for police to bring members of the media or other third
parties into a private dwelling during the execution of a warrant
unless the homeowner has consented or the presence of the third
parties is in aid of the execution of the warrant. I therefore join
Parts I and II of the Court's opinion.
In my view, however, the homeowner's right to protection against
this type of trespass was clearly established long before April 16,
1992. My sincere respect for the competence of the typical member
of the law enforcement profession precludes my assent to the
suggestion that "a reasonable officer could have believed that
bringing members of the media into a home during the execution of
an arrest warrant was lawful."
Ante, at 615. I therefore
disagree with the Court's
619
resolution of the conflict in the Circuits on the qualified
immunity issue.1 The clarity of the constitutional rule, a federal
statute (18 U. S. C. § 3105), common-law decisions, and the
testimony of the senior law enforcement officer all support my
position that it has long been clearly established that officers
may not bring third parties into private homes to witness the
execution of a warrant. By contrast, the Court's opposing view
finds support in the following sources: its bare assertion that the
constitutional question "is by no means open and shut,"
ante, at 615; three judicial opinions that did not directly
address the constitutional question,
ante, at 616; and a
public relations booklet prepared by someone in the United States
Marshals Service that never mentions allowing representatives of
the media to enter private property without the owner's consent,
ante, at 617.
I
In its decision today the Court has not announced a new rule of
constitutional law. Rather, it has refused to recognize an entirely
unprecedented request for an exception to a well-established
principle. Police action in the execution of a warrant must be
strictly limited to the objectives of the authorized intrusion.
That principle, like the broader protection provided by the Fourth
Amendment itself, represents the confluence of two important
sources: our English forefathers' traditional respect for the
sanctity of the private
1 It is important to emphasize that there is no split in Circuit
authority on the merits of the constitutional issue. Nor, as I
explain
infra, at 622-624, do I believe that any District
Court had reached a conclusion at odds with the Court's Fourth
Amendment holding. Any conflict was limited to the qualified
immunity issue. Three Circuits rejected the defense whereas the
Fourth and the Eighth accepted it. See
Ayeni v.
Mottola, 35 F.3d
680, 686
(CA2 1994);
Bills v.
Aseltine,
958 F.2d
697 (CA6 1992); Berger v.
Hanlon, 129 F.3d
505 (CA9 1997);
141 F.3d
111 (CA4 1998) (en bane);
Parker v.
Boyer,
93 F.3d
445 (CA8 1996).
620
Opinion of STEVENS, J.
home and the American colonists' hatred of the general
warrant.
The contours of the rule are fairly described by the Court,
ante, at 609-611 of its opinion, and in the cases that it
cites on those pages. All of those cases were decided before 1992.
None of those cases-nor, indeed, any other of which I am
aware-identified any exception to the rule of law that the Court
repeats today. In fact, the Court's opinion fails to identify a
colorable rationale for any such exception. Respondents' position
on the merits consisted entirely of their unpersuasive factual
submission that the presence of representatives of the news media
served various legitimatealbeit nebulous-law enforcement purposes.
The Court's cogent rejection of those
post hoc
rationalizations cannot be characterized as the announcement of a
new rule of law.
During my service on the Court, I have heard lawyers argue
scores of cases raising Fourth Amendment issues. Generally
speaking, the Members of the Court have been sensitive to the needs
of the law enforcement community. In virtually all of them at least
one Justice thought that the police conduct was reasonable. In
fact, in only a handful did the Court unanimously find a Fourth
Amendment violation. That the Court today speaks with a single
voice on the merits of the constitutional question is unusual and
certainly lends support to the notion that the question is indeed
"open and shut."
Ante, at 615.
But the more important basis for my opinion is that it should
have been perfectly obvious to the officers that their "invitation
to the media exceeded the scope of the search authorized by the
warrant."
Ibid. Despite reaffirming that clear rule, the
Court nonetheless finds that the mere presence of a warrant
rendered the officers' conduct reasonable. The Court fails to cite
a single case that even arguably supports the proposition that
using official power to enable news photographers and reporters to
enter a private home for purposes unrelated to the execution of a
warrant could
621
be regarded as a "reasonable" invasion of either property or
privacy.
II
The absence of judicial opinions expressly holding that police
violate the Fourth Amendment if they bring media representatives
into private homes provides scant support for the conclusion that
in 1992 a competent officer could reasonably believe that it would
be lawful to do so. Prior to our decision in
United States
v.
Lanier, 520
U. S. 259 (1997), no judicial opinion specifically held that it
was unconstitutional for a state judge to use his official power to
extort sexual favors from a potential litigant. Yet, we unanimously
concluded that the defendant had fair warning that he was violating
his victim's constitutional rights.
I d., at 271 ("The
easiest cases don't even arise" (citations and internal quotation
marks omitted)).
Nor am I persuaded that the absence of rulings on the precise
Fourth Amendment issue presented in this case can plausibly be
explained by the assumption that the police practice was common. I
assume that the practice of allowing media personnel to "ride
along" with police officers was common, but that does not mean that
the officers routinely allowed the media to enter homes without the
consent of the owners. As the Florida Supreme Court noted in
Florida Publishing Co. v.
Fletcher, 340 So. 2d 914,
918 (1976), there has long been a widespread practice for
firefighters to allow photographers to enter disaster areas to take
pictures, for example, of the interior of buildings severely
damaged by fire. But its conclusion that such media personnel were
not trespassers rested on a doctrine of implied consent 2_a
the-
2 The Florida Supreme Court held:
"The trial court properly determined from the record before it
that there was no genuine issue of material fact insofar as the
entry into respondent's home by petitioner's employees became
lawful and non-actionable pursu-
622
Opinion of STEVENS, J.
ory wholly inapplicable to forcible entries in connection with
the execution of a warrant. 3
In addition to this case, the Court points to three lower court
opinions-none of which addresses the Fourth Amendment-as the
ostensible basis for a reasonable officer's belief that the rule in
Semayne's Case4 was ripe for reevaluation.5 See
ante,
at 616. Two of the cases were decided in 1980 and the third in
1984. In view of the clear restatement of the rule in the later
opinions of this Court, cited
ante, at 611, those three
earlier decisions could not possibly provide a
ant to the doctrine of common custom, usage, and practice and
since it had been shown that it was common usage, custom and
practice for news media to enter private premises and homes
under the circumstances present here.
"'The fire was a disaster of great public interest .... [I]t has
been a longstanding custom and practice throughout the country for
representatives of the news media to enter upon private property
where disaster of great public interest has occurred.''' 340 So.
2d, at 917-918.
The Court's reference to this case,
ante, at 616, n. 3,
misleadingly suggests that the "widespread practice" referred to in
the Florida court's opinion was police practice; it was not.
3 Indeed, the Wisconsin state-court decision, cited by the Court
as contrary authority, took pains to distinguish this case:
"We will not imply a consent as a matter of law. It is of course
well known that news representatives want to enter a private
building after or even during a newsworthy event within the
building. That knowledge is no basis for an implied consent by the
possessor of the building to the entry .... We conclude that custom
and usage have not been shown in fact or law to confer an implied
consent upon news representatives to enter a building under the
circumstances presented by this case."
Prahl v.
Brosamle, 98 Wis. 2d 130, 149-150,295 N. W. 2d 768, 780
(App. 1980).
45 Co. Rep. 91a, 77 Eng. Rep. 194 (K. B. 1604).
5 As the Court notes, the only Federal Court of Appeals
authority on the subject,
Bills v.
Aseltine,
958 F.2d
697 (CA6 1992), "anticipate[d] today's holding that
police may not bring along third parties during an entry into a
private home pursuant to a warrant for purposes unrelated to those
justifying the warrant."
Ante, at 616-617.
623
basis for a claim by the police that they reasonably relied on
judicial recognition of an exception to the basic rule that the
purposes of the police intrusion strictly limit its scope.
That the two federal decisions were not officially reported
makes such theoretical reliance especially anomalous.6 Moreover, as
the Court acknowledges, the claim rejected in each of those cases
was predicated on the media's alleged violation of the plaintiffs'
"unorthodox non-Fourth Amendment right to privacy theories,"
ante, at 616, rather than a claim that the officers violated
the Fourth Amendment by allowing the press to observe the execution
of the warrant.
Moncriefv. Hanton, 10 Media L. Rptr. 1620
(ND Ohio 1984);
Higbee v.
Times-Advocate, 5 Media L.
Rptr. 2372 (SD Cal. 1980). As for the other case,
Prahl v.
Brosamle, 98 Wis. 2d 130, 295 N. W. 2d 768 (App. 1980)-cited
by the Court,
ante, at 616, for the proposition that the
officer's conduct was "not unreasonable"-it actually held that the
defendants' motion to dismiss should have been denied because the
allegations supported the conclusion that the officer committed a
trespass when he allowed a third party to enter the plaintiff's
property. 7 Since that conclusion was fully consistent with a
6 In the Fourth Circuit, unreported opinions may not be
considered in the course of determining qualified immunity.
Hogan v.
Carter, 85 F.3d
1113, 1118 (1996).
7
Prahl v.
Brosamle, 98 Wis. 2d, at 154-155, 295
N. W. 2d, at 782 ("A new trial must be had with respect to the
plaintiffs' claims for trespass against Lieutenant Kuenning and
Dane Country .... Lieutenant Kuenning had no authority to extend a
consent to [the press] to enter the land of another. Although entry
by Lieutenant Kuenning was privileged, he committed a trespass by
participating in the trespass by [the press]").
The Court is correct that the Wisconsin Court of Appeals upheld
dismissal of the plaintiff's 42 U. S. C. § 1983 claim
against
the newscaster because he was not acting under color of state
law. As the basis for rejecting the § 1983 action "for invasion of
privacy based on disclosure of the incident," the court further
held that "[w]e are unwilling to accept the proposition that the
filming and television broadcast of a reasonable search and
seizure, without more, result in unreasonableness." 98 Wis. 2d,
at
624
Opinion of STEVENS, J.
number of common-law cases holding that similar conduct
constituted a trespass,8 it surely does not provide any support for
an officer's assumption that a similar trespass would be
lawful.
Far better evidence of an officer's reasonable understanding of
the relevant law is provided by the testimony of the Sheriff of
Montgomery County, the commanding officer of three of the
respondents: " 'We would never let a civilian into a home ....
That's just not allowed.'" Brief for Petitioners 41.
III
The most disturbing aspect of the Court's ruling on the
qualified immunity issue is its reliance on a document discussing
"ride-alongs" apparently prepared by an employee in the public
relations office of the United States Marshals Service. The text of
the document, portions of which are set out in an appendix, makes
it quite clear that its author was not a lawyer, but rather a
person concerned with developing the proper public image of the
Service, with a special interest in creating a favorable impression
with the Congress. Although the document occupies 14 pages in the
joint
138,295 N. W. 2d, at 774. Important to its conclusion was its
observation that, unlike the unnecessary male participation in body
searches of schoolgirls in
Doe v.
Duter, 407 F. Supp.
922 (WD Wis. 1976), "[n]either the search of Dr. Prahl and his
premises nor the film or its broadcast has been shown to include
intimate, offensive or vulgar aspects." 98 Wis. 2d, at 138,295 N.
W. 2d, at 774. The reporter in question was stationed in the
entryway of the building and was able to film into the plaintiff's
office during the police interview.
8See,
e. g., Daingerfield v.
Thompson, 74 Va. 136,
151 (1880) ("There seems, indeed, to be no principle of law better
settled, and for which numerous authorities may be cited if
necessary, than this: that all persons who wrongfully contribute in
any manner to the commission of a trespass, are responsible as
principals, and each one is liable to the extent of the injury
done"); see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts § 13, p. 72 (5th ed. 1984).
625
appendix and suggests handing out free Marshals Service T-shirts
and caps to "grease the skids," it contains no discussion of the
conditions which must be satisfied before a newsperson may be
authorized to enter private property during the execution of a
warrant. App. 12. There are guidelines about how officers should
act and speak in front of the camera, and the document does
indicate that "the camera" should not enter a private home until a
"signal" is given.
Id., at 7. It does not, however, purport
to give any guidance to the marshals regarding when such a signal
should be given, whether it should ever be given without the
consent of the homeowner, or indeed on how to carry out any part of
their law enforcement mission. The notion that any member of that
well-trained cadre of professionals would rely on such a document
for guidance in the performance of dangerous law enforcement
assignments is too farfetched to merit serious consideration.
***
The defense of qualified immunity exists to protect reasonable
officers from personal liability for official actions later found
to be in violation of constitutional rights that were not clearly
established. The conduct in this case, as the Court itself reminds
us, contravened the Fourth Amendment's core protection of the home.
In shielding this conduct as if it implicated only the unsettled
margins of our jurisprudence, the Court today authorizes one free
violation of the wellestablished rule it reaffirms.
I respectfully dissent.
APPENDIX TO OPINION OF STEVENS, J.
"MEDIA RIDE-ALONGS
"The U. S. Marshals Service, like all federal agencies,
ultimately serves the needs and interests of the American
public
626
Appendix to opinion of STEVENS, J.
when it accomplishes its designated duties. Keeping the public
adequately informed of what the Service does can be viewed as a
duty in its own right, and we depend on the news media to
accomplish that.
"Media 'ride-alongs' are one effective method to promote an
accurate picture of Deputy Marshals at work. Ride-alongs, as the
name implies, are simply opportunities for reporters and camera
crews to go along with Deputies on operational missions so they can
see, and record, what actually happens. The result is usually a
very graphic and dynamic look at the operational activities of the
Marshals Service, which is subsequently aired on TV or printed in a
newspaper, magazine, or book.
"However, successful ride-alongs don't just 'happen' in a
spontaneous fashion. They require careful planning and attention to
detail to ensure that all goes smoothly and that the media receive
an accurate picture of how the Marshals Service operates. This
booklet describes considerations that are important in nearly every
ride-along." App. 4.
"Establish Ground Rules
"Another good idea-actually, it's an essential one-is to
establish ground rules at the start and convey them to the reporter
and camera person. Address such things as what can be covered with
cameras and when, any privacy restrictions that may be encountered,
and interview guidelines. "Emphasize the need for safety
considerations and explain any dangers that might be involved. Make
the ground rules realistic but balanced-remember, the media will
want good action footage, not just a mop-up scene. If the arrest is
planned to take place inside a house or building, agree ahead of
time on when the camera can enter and who will give the signal."
Id., at 7.
"The very best planning won't result in a good ride-along if the
Marshals Service personnel involved do not do their part. It's a
case of actions speaking as loudly as words, and both
627
are important in getting the best media exposure possible."
Id., at 9.
" 'Waving the Flag'
"One action of special consequence is 'waving the flag' of the
Marshals Service. This is accomplished when Deputies can easily be
recognized as USMS Deputies because they are wearing raid jackets,
prominently displaying their badges, or exhibiting other easily
identifiable marks of the Service. We want the public to know who
you are and what kind of job you do. That is one of the goals of
the ride-along. So having Deputy Marshals easily identified as such
on camera is not just a whim-it's important to the overall success
of the ride-along.
"Of course, how the Deputies act and what they say is also
crucial. During the ride-along virtually any statement made by
Deputies just might end up as a quote, attributed to the person who
made it. Sometimes that could prove embarrassing. A Deputy must try
to visualize what his or her words will look like in a newspaper or
sound like on TV. Being pleasant and professional at all times is
key, and that includes not being drawn into statements of personal
opinion or inappropriate comments. U sing common sense is the
rule."
Id., at 9-10.
"You also need to find out when the coverage will air or end up
in print. Ask the reporter if he or she can keep you informed on
that matter. You might 'grease the skids' for this by offering the
reporter, camera person, or other media representatives involved a
memento of the Marshals Service. Marshals Service caps, mugs,
T-shirts, and the like can help establish a rapport with a reporter
that can benefit you in the future."
Id., at 12.
"Getting to the Final Product
"N aturally, it's important to see the final product of the
ridealong when it airs on TV or appears in the newspaper. You
628
Appendix to opinion of STEVENS, J.
should arrange to videotape any TV news coverage or clip the
resulting newspaper stories and send a copy of the videotape or
news clipping to the Office of Congressional and Public Affairs."
Id., at 13.
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