Wallpaper

This post is about what I assume is a rather unusual issue that came up in Philbrook v. Perrigo, 2009 WL 2223048 (U.S. District Court for the District of Massachusetts 2009). According to this opinion, the case arose when

the plaintiff, Melanie Philbrook filed a complaint against 1) the City [of Malden]; 2) the Police Department; 3) Douglas F. Perrigo, in his capacity as Captain of the Police Department's Patrol Division; 4) Kenneth Coye, in his capacity as Chief of the Police Department and 5) Malden police officers Scott Caroll, Richard Correale, Glen Cronin, Robert DiSalvatore, Trent Headley, Brian Killion, Joseph Walker and John Doe.

Philbrook v. Perrigo, supra. The judge who wrote the opinion says the suit involves “alleged civil rights violations and common law torts arising out of a purported pattern of harassment, intimidation and other misconduct” on the part of the various defendants. Philbrook v. Perrigo, supra. The defendants moved for summary judgment on the plaintiff’s claims. Philbrook v. Perrigo, supra.

As Wikipedia explains, a court will grant summary judgment on the part of the moving party if the judge finds that (i) there are no “material” issues of fact that need to be resolved at trial and (ii) when the law is applied to the undisputed facts, the moving party is entitled to judgment. The defendants apparently filed for summary judgment on all of Philbrook’s claims, a motion she opposed.

There were a lot of different claims at issue in the suit, but we’re only concerned with one: Philbrook’s claim that certain of the defendants violated her right to privacy under Massachusetts General Laws c. 214 § 1B. Section 1B says that “[a] person shall have a right against unreasonable, substantial or serious interference with his privacy.”

Philbrook’s claim that certain of the defendants violated this statute arose from her having been arrested on a charge that was later withdrawn. Philbrook v. Perrigo, First Amendment Complaint and Demand for Jury Trial, 2007 WL 4581459 (U.S. District Court for the District of Massachusetts). As part of this arrest, police took a photograph – a mug shot – of Philbrooke. According to her First Amended Complaint,

36. While criminal charges were pending against plaintiff Philbrook, a defendant Malden police officer or officers placed plaintiff Philbrook's booking photograph as a desktop image on computers throughout the police station.

37. Malden Police Department computers on which the defendant Malden police placed plaintiff Philbrook's booking photograph included computers in view of public parts of the police station, as well as other computers viewable by the public.

38. The defendant Malden police also circulated plaintiff Philbrook's photograph throughout the Malden Police Department as a joke.

39. When a Malden police officer spoke to and complained to defendant Perrigo about said public display of plaintiff Philbrook's booking photograph, and requested that defendant Perrigo have the picture taken down, defendant Perrigo merely laughed and walked away.

40. Another Malden police officer attempted to go up the chain of command to get plaintiff Philbrook's booking photograph removed from its public display on police computers, but was similarly unsuccessful.

41 No defendant officer received any discipline, either for placing plaintiff Philbrook's booking photograph on Malden Police Department computers, thereby exposing her to the ridicule of the Malden Police Department and the general public, or for circulating her booking photograph throughout the department as a joke.

Philbrook v. Perrigo, First Amendment Complaint and Demand for Jury Trial, supra.

The defendants moved for summary judgment on Philbrook’s claim under Massachusetts General Laws c. 214 § 1B. They argued that “using Philbrook’s mug-shot as the `wallpaper’ on police computers did not rise to the level of a violation of privacy under that statute because it depicted only her face and did not show her in a compromising position.” Philbrook v. Perrigo, supra. Philbrook argued, in respose, that “the photography was evidence that she had been arrested and depicted her in a poor light, `crying and obviously upset.’” Philbrook v. Perrigo, supra.

Philbrook lost. The federal judge to whom this case has been assigned granted summary judgment for the defendants on her right to privacy claim. The judge found that

[t]he fact of Philbrook's arrest is part of her criminal offender record, and, as such, she should not have had an expectation of privacy in connection therewith. . . . Furthermore, a mug-shot is not `highly personal,’ as it is part of the official records of the police. It is, moreover, vastly different from a `family photograph’ which is considered to be protected. Although the defendants' conduct was inappropriate, it did not constitute a violation of Philbook's privacy under [Massachusetts General Laws c. 214 § 1B and summary judgment on that issue is proper.

Philbrook v. Perrigo, supra.

I think the judge was right. I don’t really see how a mug shot can be considered “private” under the Massachusetts statute or under any interpretation of what is private. Philbrook certainly wasn’t in a private place when the photography was taken and she knew it was being taken, so we don’t have any underlying voyeur-style conduct.

There is a cause of action, at least in some jurisdictions, for misappropriating someone’s image . . . but I believe that cause of action usually requires that the misappropriation have been for commercial purposes . . . which it most certainly was not in this case.

There’s also a cause of action, at least in some jurisdictions, for intentional infliction of emotional distress that lets a plaintiff recover damages if the defendant intentionally or recklessly committed an act that cause the plaintiff to suffer emotional distress. I don’t know if Massachusetts recognizes that cause of action and, even if it does, it probably wouldn’t work here. To prevail on a claim of intentional infliction of emotional distress, the plaintiff has to show that the defendant’s conduct was, as Wikipedia notes, “heinous and beyond the standards of civilized decency”. While I don’t like what the officers did with Philbrook’s mug shot, I doubt it meets that requirement.

I really can’t think of anything else . . . which is no doubt why Philbrook’s lawyer went with the violation of privacy claim.