Wednesday, November 23, 2011

The Traffic Stop, Reality Television and Constitutional Rights

This post examines an opinion a federal district court judge recently issued in a civil case: Best v. Beard, 2011 WL 5554021 (U.S. District Court for the Northern District of Illinois 2011).

As the judge notes at the beginning of his opinion,

Eran Best has sued the City of Naperville, two Naperville police officers, and several television production companies on claims arising from her arrest and resulting involuntary appearance on the television show Female Forces.

Best claims that her arrest and the show's depiction of her personal information violated her federal constitutional rights to privacy and against unreasonable search and seizure. She also claims that defendants disclosed information about her in violation of the Driver's Privacy Protection Act (DPPA), 18 U.S. Code § 2772(a).

Best v. Beard, supra.

Before we get to the legal issues, I need to note how the case arose. We’ll state with how the Female Forces show got involved with the Naperville police:

A Day With, Inc. (ADW) produced a television show called Female Forces that aired on the Biography Channel. The Biography Channel is owned by defendant A & E Television Networks, LLC (A & E). . . .

Female Forces was an unscripted `reality’ television series that followed female police officers as they performed their duties and interacted with . . . the public. The City of Naperville participated in the Female Forces program pursuant to a city resolution authorizing it to enter into a contract with ADW. Naperville's police chief, David Dial, instructed officers not to let filming interfere with their work in any way.

The city's contract also gave the Naperville Police Department the right to review a rough cut of each episode of the show and to insist on removal of material from the episode. Dial, an A & E programming director, and a Female Forces clearance supervisor’ reviewed a rough cut of the pertinent episode before it aired, and the programming director and clearance supervisor also reviewed a final cut.

Best v. Berard, supra.

On February 24, 2008, Best was driving in Naperville when Timothy Boogerd, a

On February 24, 2008, Best was driving in Naperville. Timothy Boogerd, a Naperville officer, saw from his squad car that Best's license plate had an expired sticker. He ran her license plate through the Illinois Secretary of State's database and saw that the car's registration had been suspended. He pulled Best's car over at 11:08 p.m.

After pulling Best over, Boogerd approached her car. . . . He . . . smelled alcohol. . . ., [asked Best if] she had had anything to drink, and she [said] she had consumed one beer earlier in the evening. Boogerd requested [her] driver's license. She handed him her Illinois state identification card, which he took to his vehicle. He checked Best's driver record information and learned her driver's license had been suspended. . . .

Naperville police procedures require the presence of two officers during a sobriety test and encourage the presence of two officers during an arrest. . . . Defendants [claim] a police dispatcher contacted Boogerd at 11:13 p.m. for a status check and [he] requested a back-up officer. . . .

Best [says] there is no record of any such request by Boogerd and [claims] he contacted Stacy Berard, a female Naperville officer who was being accompanied by a Female Forces camera crew, by some other means. . . . [I]t is undisputed that Berard and a camera crew arrived on the scene at 11:17 p.m.

After Berard and the camera crew arrived, Boogerd again asked Best if she had had anything to drink, and she [said] she had one beer. Either before or after asking this question, Boogerd and Berard approached Best's car and directed her to get out. Boogerd performed two field sobriety tests on Best. The first was a `horizontal gaze nystagmus’ test. He then asked her to recite a portion of the alphabet.He determined after administering these tests that she did not exhibit any signs of impairment.

Boogerd and Berard informed Best that she was driving on a suspended driver's license and placed her under arrest at 11:27 p.m. Berard handcuffed Best, patted her down, and placed her in the back of Boogerd's squad car. Boogerd and Berard then . . . search[ed] Best's car. After they completed the search, Boogerd began driving Best to the Naperville police station at 11:34 p.m.

Footage of . . . Best's arrest was broadcast during an episode of Female Forces. The segment depicts the sobriety tests and Best's arrest, including the moment when she is placed in handcuffs. Best's face is visible, and her voice is audible throughout the scene. . . . At one point . . . the camera focuses on a dashboard computer [that] displays the name `Erin Best,’ as well as Best's date of birth, height, weight, and driver's license number, a phone number, and brief descriptions of previous arrests and traffic stops.

Best v. Berard, supra. The episode was broadcast “on the Biography Channel on December 7, 2008”; Best filed this suit on December 14, 2009. Best v. Berard, supra.

The judge issued this opinion to rule on the defendants’ motion for summary judgment. Best v. Berard, supra. As Wikipedia notes, summary judgment is a process by which a court can dispose of civil claims without having a trial. As Wikipedia also notes, summary judgment can only be granted if the judge finds there are (i) “no issues of ‘material’ fact requiring a trial for their resolution” and (ii) “in applying the law to the undisputed facts, one party is clearly entitled to judgment”. (If you'd like to read a little more about summary judgment, check out the post you can find here.)

The judge began with Bests’ constitutional claims, i.e., that what the officers did violated her “constitutional right to privacy” and her right to be free from unreasonable searches and seizures. Best v. Berard, supra. As to the first issue, he noted that Best claimed the

defendants violated her constitutional right to privacy by broadcasting the information contained on the computer screen in Berard's squad car. She cites the 7th Circuit's recognition of a `constitutional right to the privacy of medical, sexual, financial, and perhaps other categories of highly personal information-information that most people are reluctant to disclose to strangers,’ which the court has noted is `defeasible only upon proof of a strong public interest in access to or dissemination of the information.’ Wolfe v. Schaefer, 619 F.3d 782 (U.S. Court of Appeals for the 7th Circuit 2010).

Defendants respond that none of the information actually aired is protected by a constitutional privacy right.

Best v. Berard, supra.

The judge did not agree. He explained that the information broadcast in the episode

consisted of the name `Erin Best,’ Best's date of birth, height, weight, and driver's license number, a phone number, and brief descriptions of Best's previous arrests and traffic stops. The depiction of information concerning Best's previous arrests and stops does not violate her constitutional right to privacy because the disclosure of a criminal record does not violate that right. . . . Best does not expressly argue otherwise. She concedes she did not use, receive bills for, or live at the residence corresponding to the phone number that aired, and does not dispute defendants' claim that the number was therefore not her private information. . . .

With respect to Best's height and weight, the 7th Circuit has recognized that `medical information may be a form of protected confidential information because of its intimate and personal nature’ Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000). . . .

Denius, however, indicates that the court considers `medical information’ to involve `medical records and communications,’ not every piece of information that might be disclosed about a person's body. . . . Best understandably may not want to disclose her height and weight to strangers, but the categories of information the 7th Circuit has deemed protected by the constitutional privacy right have been far more personal, such that their disclosure would lead to greater potential for embarrassment or abuse. . . .

The Court concludes that information disclosing one's height and weight is not protected under a constitutional privacy right.

Defendants argue further that Best has no right of privacy in her driver's license number because it is publicly available information. Best responds that U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), forecloses this argument because of its holding that a `compilation of otherwise hard-to-obtain information’ may be entitled to heightened privacy protection even though it is comprised only of `public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country.’

She [claims] the information displayed on the screen in Berard's car amounted to this sort of compilation and is therefore protected. Defendants correctly point out, however, that Reporters Committee interpreted the Freedom of Information Act and therefore `tells us only when something is private under a statute, not whether a person has an expectation of privacy under the United States Constitution.’ U.S. v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011) (Flaum, J., concurring). Best does not dispute that her driver's license number is otherwise publicly available, and she does not identify any other basis for a contention that she has a constitutionally protected privacy interest in it.

Best v. Berard, supra. The judge therefore held that Best did not have a constitutionally protected privacy interest in the information displayed in the broadcast, and so granted the defendants’ motion for summary judgment on these claims. Best v. Berard, supra.

Best’s 4th Amendment argument was based on her claim that the officers unreasonably delayed her arrest because (i) Boogerd made her wait an unreasonably long time” while he contacted Berard and the camera crew rather than calling police dispatch and/or (ii) the officers unnecessarily “`staged’” the sobriety tests “for the benefit of the cameras” and so further delayed “her detention.” Best v. Berard, supra.

The judge rejected her first argument because he found that only “nine minutes elapsed between the time Best was pulled over and Berard’s arrival at the scene”, time that included Boogerd’s approaching Best’s car, interacting with her, running her license and waiting for Berard to arrive. Best v. Berard, supra. He also noted it was “reasonable” for Boogerd to call Berard because of Naperville’s policy “strongly encourage[ing] the presence of two officers” at an arrest. Best v. Berard, supra. He concluded, therefore, that based on the facts, “no reasonable jury could find unreasonable delay” in Best’s detention. Best v. Berard, supra.

The judge rejected her argument about the “staged” sobriety tests for basically the same reason:

The tests were filmed, and on the episode as aired they took less than a minute. Even if the segment was edited down, and even if the officers took extra time to prepare to administer the tests, only a total of ten minutes elapsed between Berard's arrival at the scene and Best's arrest. Best has not introduced any evidence from which a reasonable jury could conclude that the testing lengthened her detention beyond what was constitutionally reasonable.

Best v. Berard, supra.

The judge then addressed Best’s claim under the DPPA which, as he explained, creates

a private cause of action against a `person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter.’ 18 U.S. Code § 2724(a). `Personal information’ is defined as `information that identifies an individual, including an individual's photograph, social security, driver identification number, name, address (but not the 5–digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status.’ 18 U.S. Code § 2725(3).

Best v. Berard, supra.

The judge first rejected the defendant’s argument that the information was not “displayed because it wasn’t “legible” on the screen; he found that anyone who had recorded the episode could “easily pause it and review the [legible] information” it displayed. Best v. Berard, supra. He also rejected their claims that the DPPA only applied to “departments of motor vehicles” (since it refers to “a person”) and that the information displayed was not from a “motor vehicle record”. Best v. Berard, supra.

He ruled somewhat differently on the defendants’ argument that they did not “know” they were “airing Best’s personal information”. Best v. Berard, supra. The judge found that

Boogerd and Berard cannot reasonably be held to have knowingly disclosed the information for airing during the episode because there is no evidence they were involved with the production of the episode to be broadcast. On the other hand, a reasonable jury could conclude that the other defendants, who had the opportunity to review versions of the episode before it was aired, knew that it contained a depiction of Best's personal information.

Best v. Berard, supra. The judge therefore granted summary judgment for Boogerd and Berard on on Best’s DPPA claim but denied summary judgment for the other defendants. Best v. Berard, supra.

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