The Biography Channel and its parent company face two federal lawsuits that look to test the limits of media liability for alleged civil rights violations that occur during police ride-along programs.
So far, only the Ninth Circuit has held that the news media can be liable for civil rights violations when they entered private property with officials.
Both suits against A&E Televisions Networks, which is the Biography Channel’s parent company, are over footage shown in a show called "Female Forces" that follows female officers with “brains, beauty and a badge” as they patrol the suburbs of Chicago, according to the Biography Channel’s website.
In the first case, a U.S. District Court judge in Chicago has ruled the cable network may have violated a woman’s civil rights by broadcasting her likeness and identity during an episode of the reality series. A ruling on a motion to dismiss the second case could come any day, said an attorney for the defendants. Both lawsuits seek to hold the channel liable for alleged violations of the Fourth Amendment protection against unreasonable search and seizure.
The judge in the first lawsuit denied in February the defendants’ motion to dismiss a case that was filed after the show broadcast the 2008 arrest of Chelsea Frederick, then 20, on an outstanding warrant for failing to appear at a traffic court hearing. A male Naperville officer served the warrant on Frederick after she stepped outside her apartment to go to a local drive-through restaurant with her sister, according to court filings. The officer detained them until a female officer arrived to arrest Frederick. During her arrest, Frederick was handcuffed and was unable to adjust her pajama bottoms, which had begun to sag below her hips – a sight the cameras focused on, according to the filings.
The second case, which was filed in December, involved the arrest of a motorist for a drivers license violation. The motorist, Eran Best of Woodridge, Ill., also alleges her identity was broadcast without her consent.
Both lawsuits also name the television production firm, the Greif Company, and the City of Naperville as defendants. Because both cases are still in their early stages, it is unclear whether the outcome of either case will affect how the media cover police officers’ handling of suspects.
Frederick has argued that the Biography Channel was working so closely with the Naperville Police Department that the television channel should be subject to the same constitutional restrictions that protect private citizens from acts of the government. Her claim is rooted in a statute called Section 1983, which says that when the party operates “under color of” state law and in fact deprives the plaintiff of a constitutional right it can be held liable in a constitutional claim.
Senior U.S. District Judge Milton Shadur in April declined to reconsider his earlier refusal to dismiss the case. Shadur reasoned that an agreement the channel earlier had entered with the Naperville police to tape "Female Forces" created “symbiotic relationship” between the government and the private channel, requiring the channel to adhere to the Constitution. Media involvement with the Naperville police “had been artificially created for no law enforcement purpose but only to create a camera opportunity,” Shadur wrote.
Steven Mandell, a Chicago attorney representing the defendants in both cases, said the agreement “simply provides media access to activities of the police.”
Bruce Johnson, a media lawyer at Davis Wright Tremaine in Seattle, said he was concerned that if the “Female Forces” broadcasters are ultimately held liable, then the media that broadcast an arrest would risk civil liability if the photographer or camera crew had any prior agreement or understanding with the police department making the arrest, regardless of whether the arrest takes place in public view.
“Any good news media organization is going to have some kind of agreement with police departments just to make sure they don’t interfere with police activities. These are typically informal. This [case] elevates that very commonsense and I think appropriate activity into a very dangerous … problem for news organizations” said Johnson, who is not involved in the Biography Channel lawsuits.
Another potential key issue is whether the arrest in the Frederick case took place in a public area, said Hugh Stevens of Everett, Gaskins, Hancock & Stevens in Raleigh, N.C. While the motorist’s arrest occurred on a public road, Frederick and her sister were detained in the common parking lot area of a private apartment complex, Mandell said.
If the arrest was in a public place, then the plaintiffs likely would not succeed in a privacy claim because the courts have held that a person has less expectation of privacy than in a private setting.
Additionally, the defendants argue that the arrests of suspects by police are of interest to the public, so media coverage of them is protected by the First Amendment.
Typically, most civil rights claims against media outlets accompanying government officials arose from incidents on private property, according to a 2004 article in Catholic University’s communications law journal CommLaw Conspectus. In such cases, courts have found that a media outlet could be liable in a constitutional claim. In Hanlon v. Berger, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled in 1997 that CNN and its reporter could be liable under the Fourth Amendment for accompanying a U.S. Fish and Wildlife agent who wore a CNN microphone and entered a private home during a raid on a Montana ranch. The U.S. Supreme Court let that decision stand in 1999.