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From the hotline

From the Summer 2003 issue of The News Media & The Law, page 30.

From the Summer 2003 issue of The News Media & The Law, page 30.

The Reporters Committee operates a toll-free hotline (800-336-4243) for journalists with questions about free press and freedom of information issues. In this column, attorneys who answer our phones, as well as media lawyers from around the country, discuss questions we often get from journalists.

What follows is not meant to be relied upon as legal advice specific to any reader’s situation. It is rather here for informational purposes, to help journalists understand how the law affects their work. You should consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding a lawyer.

Q: I’ve heard that ride-alongs with police are now severely limited, but what exactly can I do or not do when police officers enter an emergency scene in a private residence, or when they’re executing an arrest or search warrant?

A: We asked three attorneys who handle these issues for clients how they would address this question.

Hugh Stevens, Everett Gaskins Hancock & Stevens, Raleigh, N.C. “Ride-alongs” are inherently problematic situations for reporters and photographers, not only because they can engender claims for trespass or intrusion, but also because the police usually have self-aggrandizing motives in inviting journalists to accompany them on “raids” or searches. Even before 1999, when the Supreme Court issued two decisions holding that “ride-alongs” may invalidate searches and expose both police and journalists to liability for Fourth Amendment violations, we counseled reporters and photographers to avoid accompanying police, fire or emergency workers onto private property. The Supreme Court’s decisions merely reinforced that advice.

We also recommend that when reporters and photographers covering crimes, fires, arrests, raids, accidents, natural disasters and the like observe the following principles:

1. Make it easy for anyone at the scene to know that you are a journalist. Give your name, your position and the name of your news organization to anyone you talk to. If you can display a badge, hand out business cards, and/or wear a jacket or hat with your organization’s logo on it, so much the better.

2. You may photograph and report on any activity that can be observed from a public place such as a street or sidewalk, even if the activity occurs on private property.

3. Remember that when you are in a public place, the police cannot lawfully order you to “stop taking pictures” or “put your pad and pen away,” but they can arrest you for interfering with law enforcement or emergency workers. Be respectful and keep a reasonable distance.

4. If you are not certain whether a particular place is public or private property, assume it is private.

5. If you are seeking permission to enter a residence or other private place, ask the police or emergency workers to direct you to the owner, tenant or manager.

6. If you obtain permission to enter from someone who claims to be in charge of private premises, make a note of the person’s name and his or her asserted relationship to the property. If the permission is limited (i.e., “you can go onto the porch, but don’t go inside”) observe the prescribed limits.

7. Likewise, if someone who claims to be in authority asks you to leave private property, make a note of his or her name and then withdraw from the premises (even if someone else has given you permission) while you determine who is in charge.

8. At the scene of a crime or disaster, common sense and courtesy will get you further than the First Amendment or a degree in journalism.

9. Be careful out there. Fires and madmen don’t care who gets hurt.

Bruce Johnson, Davis Wright Tremain, Seattle. The short answer is that you can (and should) do very little. As you have heard, media “ride-alongs” with police officers have been greatly curtailed. Not only are members of the media subject to possible suits under state laws (such as trespass and various privacy laws), there is the possibility that members of the media could held liable for “unreasonable searches and seizures” under the Fourth Amendment.

The watershed event was a 1999 Supreme Court decision in which the Court held that police officers can violate the Fourth Amendment when executing an arrest or search warrant by bringing members of the media into a private residence — at least when the presence of the media had nothing to do with the execution of the warrant. In another 1999 case, the Court ruled that CNN and one of its reporters could be liable to a Montana rancher for Fourth Amendment violations — even though the government agents responsible for the allegedly unlawful search escaped liability by pleading good-faith immunity.

In addition, several other recent court decisions also suggest that the media itself can violate the Fourth Amendment by active participation in these “ride-alongs.” However, such liability probably requires that the media’s actions be “inexorably intertwined” with police actions, such that the media becomes a “state actor.”

For example, in Brunette v. Humane Society of Ventura County, a federal appeals court in California held that a reporter/photographer for a semiweekly newspaper was not liable for merely gathering information (including taking pictures) during a Humane Society search of a cat-breeding business. While the authorities invited the reporter to the private residence, the court found it crucial that he “rendered no assistance … and in no way facilitated its ability to search the premises.” However, the result would likely have been different had the media been more involved in the search, such as helping to plan the execution of the warrant, facilitating its execution, or receiving confidential information from the authorities.

It is also conceivable that Fourth Amendment liability could extend past the boundaries of the home. For instance, in Lauro v. Charles, a federal appeals court in New York held that a staged “perp walk,” without any legitimate law enforcement purpose and solely for the benefit of the press, violated an arrestee’s Fourth Amendment rights. While media liability was not an issue in the case, it seems possible that a court could find members of the media liable if they were deeply involved with police in arranging such walks.

In addition to Fourth Amendment liability, courts have continued to hold members of the media liable for state law civil claims for observation of police activities in private residences. Some courts have provided immunity to media accompanying authorities, particularly when the occupants of the home are not present. These decisions often depend on whether the media presence was “common custom, usage, and practice” — and their viability may be questionable in light of more recent decisions.

Thus, many courts have refused to provide such immunity to members of the media. In Miller v. National Broadcasting Co., a California state appellate court held that a news crew invited into an apartment by fire department paramedics, but without the consent of the apartment’s occupants, could be held liable for both trespass and invasion of privacy by intrusion. Likewise, an Ohio federal court ruled in Barrett v. Outlet Broadcasting, Inc. that a television film crew entering a residence to film a suicide victim could be held liable for trespass and intentional infliction of emotional distress, even though the film crew had police consent for their actions. Similarly, in an unreported companion case to Brunette, a federal appeals court in California ruled that the media could be held liable for trespass and invasion of privacy under California law, even though the media had consent from the Humane Society to enter the property.

Practically speaking, these cases illustrate that it is often insufficient for the media to obtain the consent of the authorities before entering a private residence, particularly when the residence’s occupants are present. This is particularly true when the underlying warrant is invalid, as was the case in Brunette. Instead, it is imperative that consent to enter private property be obtained from both the authorities and the occupants themselves.

Furthermore, as a result of the recent Fourth Amendment jurisprudence, members of the media should refrain from any concerted actions with authorities in the execution of arrest or search warrants. The mere acceptance of an invitation to view law enforcement activities will probably be insufficient to impose Fourth Amendment liability on members of the media. However, there is always the danger that greater cooperation and coordination with authorities could result in liability by the reporter and his or her employer.

Given these complex rules, reporters should work closely with legal counsel before participating in any police search or seizure, or anything that remotely smacks of a trespass. Any misstep could lead to potential criminal liability and insurance coverage is uncertain. Finally, the importance of getting good legal advice early on cannot be ignored — and don’t assume that even a good First Amendment lawyer understands all the Fourth Amendment risks involved.

Eve Burton, Hearst Corporation, New York. There have been significant changes in the laws that limit our newsgathering activities, including ride-a-longs with police. These changes require us to be more creative in how we proceed but do not signal the end of ride-a-longs or reporting on the execution of search warrants.

Let’s take a basic set of facts that repeat themselves for both print and broadcast journalists. Crime is up or down. The newsroom wants to do a story. How about an evening ride with the local police department? Can you go? Yes, with some care.

There is no problem in riding in the cop car along public streets as long as the police department has given permission. During your ride, all general reporting standards and practices apply. Once you arrive at the crime scene, the rules change. You may follow cops up and until they enter private property (which includes “public housing” buildings) but you may not follow them inside. You may, however, use your camera and zoom lense and audio technology to take pictures and sound of what is happening as long as you are standing on public property. If the suspect is led out, arrested or not, you may approach him or her to talk and to take photos and sound. In sum, you are free to do virtually anything from a public street.

To add to this basic set of rights, let’s add a little journalistic ingenuity. If a neighbor invites you into the building where the crime occurs you are free to proceed. Again, the scope of the permission is only as good as the underlying right the person giving it has. For example, a neighbor can give you a right to enter the building common areas but not the perpetrator’s apartment (unless he lives there too). If you can see the arrest from the neighbor’s doorway or property there is no legal problem in your being there and recording what you see. Be sure the “neighbor” really does live there and has a right to be there.

Microphones, other audio and cameras should always stay with you. Do not put your hidden camera on the belt of the police officer who enters the crime scene to execute an arrest warrant or arrest, even with his permission. If your camera “walks” into private property with a cop, you are liable for trespass, Fourth Amendment violations and other liabilities. If a cop has his own audio or video, which is routinely used in a cop car or during arrest and you request a copy of the tape, you are fully protected legally as long as you do not steal it.

Finally, a note of caution. If your ride-a-long takes you to a hospital or roadside accident, unfortunately the law is less

protective and any audio or picture taking should be discussed with local counsel (state laws vary on this). Workplaces are also somewhat more complicated to navigate legally, but to a lesser degree than hospitals.

Proceed ahead. Carefully. And without simplifying too much, ask yourselves in the heat of the moment “Does the person giving me permission have the right to be giving me permission?” As a rule of thumb, if that person has the right to give you permission there is a good likelihood that your ride-a-long will be legally defensible.

If in doubt, call your local counsel and ask them for five minutes of free advice. No upstanding First Amendment news lawyer will turn you down.

Q: I am writing a story on an individual and I want to know his credit history. Can I obtain his credit report from a consumer reporting agency?

A: Under the Fair Credit Reporting Act, only those who have a “permissible purpose” may access an individual’s credit report. Lenders, credit card companies, landlords, insurers and employers generally are considered to have “permissible purposes” for accessing reports on persons with whom they transact business. Newsgathering is not listed in the statute as a “permissible purpose.” Violators of the Act may be subject to criminal and civil penalties.

Reporters should not attempt to obtain credit information through fraudulent means. The act provides that “[a]ny person who knowingly and willfully obtains information on a consumer from a consumer reporting agency under false pretenses shall be fined under title 18, United States Code, imprisoned for not more than 2 years, or both.” In 1998, the publisher of a business magazine was found liable for fraud after one of its reporters falsely represented to a credit agency that his purpose in requesting credit reports was to research prospective employees of the publisher. (WDIA v. McGraw-Hill, Inc.)

Q: May a court issue a gag order on people who could be called to testify in a trial but have yet to receive subpoenas?

A: In determining the validity of a gag order, it appears that courts make no distinction between subpoenaed witnesses and those who may be called to testify. However, notice of the possibility that one may testify may be required to bind a party under a gag order.

In the U.S. Court of Appeals in Richmond (4th Cir.), the court upheld a gag order issued by a district court judge prohibiting potential witnesses in a high-profile trial involving alleged members of the Ku Klux Klan and Nazi Party from speaking about the case. Of particular interest was the lower court’s definition of a potential witness. This appears to be the only federal or state case that defines the term. According to the gag order, this definition encompasses people “notified by the government or by defendants that [they] may be called to testify in this case, or any person has actually testified in this case.” The definition does not require written or “official” notice; once a person merely knows he or she may be called to testify, the witness is subject to the gag order.