Rubber Necking at Investigative Scenes

Now that I’ve ragged on the media, including the media hounds in animal rights activism, for the grossly inaccurate media stories they publish on animal seizures; it’s time to mention this.  I’ve also ragged on the media, including the media of ARA, on a number of occasions for their invasions of people’s privacy by tagging along with their cameras, taking pictures in and around personal homes and other personal and what should be private areas.  It’s probably blatantly illegal for them to take these photos, let alone publish them when they do so primarily for their own fund raising/financial gain.

Wilson v. Layne… we hold that police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home. We also hold there that because the law on this question before today’s decision was not clearly established, the police in that case were entitled to the defense of qualified immunity.”  Make note that the Court found the mere presence of the media to be the violation of Fourth Amendment rights.  They don't even get to the photos and publication of photos issue which are obviously more intrusive forms of violation.  That was in 1999 and all involved in law enforcement know or damned sure should know that this case clearly established the illegality of tag alongs thereafter; that there is no more qualified immunity.  Now there is just liability.  There’s a good reason one rarely sees the police publishing anything other than mug shots.  They understand the basic concept.

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, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 (K. B.).  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. Amd. IV (Emphasis added.) See also United States v. United States District Court 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”).”  There are indeed decent arguments that support the media tagging along so that we, the public, know what is being done in our name.  The court decides and I agree that this simply isn’t enough to overcome the problems inherent in intruding upon fundamental rights.

This is not a case in which the presence of the third parties directly aided in the execution of the warrant.”  What if it were?  If one is assisting the investigation does one have the right to keep the photos and use them for their own purposes?

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 7—8, the presence of these third parties was not.”  In addition, there’s a pretty big difference from something that happens on a public street and what happens within the home, a zone of privacy that is well established.  But it isn’t just the “home”…

Did you ever wonder why “compounds” like those in Waco and the FLDS homestead seem to have tunnels and passageways between buildings?  Do you think them nuts for that?  They aren’t nuts; they merely know the law better than most.  The “house” protected by the Fourth Amendment has a rather broad meaning.  By statutes and cases, we have well established that it includes any building one lives in and just about any structure attached to such living space; particularly if that structure is enclosed in an obvious attempt to acquire privacy for activities within.

And then there is the curtilage, the grounds and outbuildings of a private property.

United States v. Dunn, 480 U.S. 294 (1987) sets forth the standard for determining what is or isn’t entitled to privacy: “whether the area claimed to be curtilage is so intimately tied to the home itself that it should be placed under the home's "umbrella" of protection: (1) the proximity of the area to the home; (2) whether the area is within an enclosure surrounding the home; (3) the nature and uses to which the area is put; and (4) the steps taken by the resident to protect the area from observation by passersby.”  The court also addressed the issue of visibility from public areas and fencing to some extent: “observations from the surrounding open fields after crossing over respondent's ranch-style fences. The Court's prior decisions have established that the Government's intrusion upon open fields is not an unreasonable search; that the erection of fences on an open field -- at least of the type involved here -- does not create a constitutionally protected privacy interest; that warrantless naked-eye observation of an area protected” (emphasis added).  That sure argues for privacy fencing for any of us who own animals.  I wonder if those ranch style fences had barbed wire and if that would make a difference.  (Personally, I’m leaning toward 8’ wood privacy fencing topped with razor wire at property lines these days.)

With regard to non-law enforcement presence at investigations, I come back to this.  “This is not a case in which the presence of the third parties directly aided in the execution of the warrant.”  What if it were?  If one is assisting the investigation does one have the right to keep the photos and use them for their own purposes?  I’m sure all involved will want to claim qualified immunity but that will no longer work when the law is clearly established because “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’43

I intentionally chose to link a law review article rather than the case in that last link.  That law review article is well worth the read.  In Redding (page 321 Id.), Court started with a statement that acknowledged the extremity of the situation: “[t]he unconstitutionality of outrageous conduct obviously will be unconstitutional” and yet the Court allowed the government to “get off” for stripping a teen girl down to bra and panties (pun intended even if it is in poor taste).  Any analysis that would permit for that result is inherently flawed and I expect the Supremes will have the good sense to change it in the future.

Instead, that balance is better struck with an abominable acts exception that draws notice from both the law and our shared perceptions of morality, which is a more accurate measure of what ‘notice’ officers are likely to have and upon which to base their actions.”  Id. at 354-5.  “Due to our common moral intuitions, conduct that truly “shocks the conscience” should be perceived similarly across wide swaths of people. By challenging the caricature of “subjectivity” that its critics have placed on the standard, we can perhaps reinvigorate what can be an important tool “to deter and punish abuses of power.”246”.  Id. at 356.  I agree wholeheartedly but it also requires us to analyze based upon the acts, not what is “seen”, the shock value and with jaded hindsight.  The media starts their stories with the results specifically to get your hackles up and you should read for the facts and put things in time order; resist the temptation to play their emotion game.  It also necessitates that we speak up when we see acts by officials which shock our conscious; that we see as abominable acts.

Those who tag along on law enforcement raids and investigations are in a much more tenuous position.  There are so many ways they could be found liable.  The animal rights activists who “assist” in these raids are there under quite questionable circumstances in my opinion.  That they take and publish photographs is beyond question to my mind.  Their purpose is clearly to increase their own income; acquire funds for their own agenda of lobbying legislatures; to inflame the public about people’s personal and unrelated activities.

I’m thinking it is VERY clearly established that media presence on private property to take and publish photos during investigations and raids is completely illegal under Wilson v. Layne and that any who are doing that more than a decade later should be quaking in their boots at the potential liability they are facing.

I’m thinking it is also clearly established that any third party “assistants” to law enforcement who take photos and use them for their own gain; publish them while a case is pending are also violating the Fourth Amendment and well established law.

I’m also thinking there’s quite a few raid victims out there who might still be PISSED at having photos of their homes splashed across the internet, their privacy already shredded, that a lawsuit isn’t so intimidating to consider.  I’m thinking they could end up with enough money to have however many animals they might want in the future and still have a personal “defense fund” in reserve after they’ve crushed and perhaps bankrupted whatever ARA NPO and governmental agent/agencies violated their rights.  It won’t bring your animals back but it might protect you in the future.  It is a bit sweet that winning such a case has zero relevance to whether or not the original case was valid or that some teeny, tiny court judge rubber stamped one as “guilty”.  It is likely to at least get them to stop continuing to use you and your animals for future fund raising.

Just FYI, in the companion case to Wilson v. Layne, CNN settled when things were clearly not going their way.  That was done rather quietly and the violations are on the rise again; from HSUS to PETA to local ARA NPOs to animal control agencies.  It seems time for victims of these abuses to start hunting for lawyers to crush the abuses again.  These are pretty easy cases with awards for legal fees as well as damages.  It shouldn’t be all that hard to find lawyers to take them on contingency.  Personally, I’d suggest individual cases rather than class action which is generally good for lawyers and bad for clients these days.

What if your raid was years ago?  What about statutes of limitation?  Hm, nothing published on the internet ever actually disappears, does it?  Likely it's still floating around out there somewhere.

What if they all start yanking their photos down tomorrow?  Hm, nothing published on the internet ever actually disappears, does it?  Likely it's still floating around out there somewhere.

Neither of those actually touches on that original violation anyway; merely goes to evidence and damages.  Make note that the Court found the mere presence of the media to be the violation of Fourth Amendment rights.  I think the same would be true when the third parties present clearly have their own motives and agendas too.  I really can't see any significant difference between the ARAs and the media reporters in this sense.

With grossly inaccurate "news" reporting on these animal seizures, blatant defamation by activists of those they target for seizures, and without pictures we really shouldn't be seeing; that doesn't leave much of a way to evaluate these cases.  I'd like to think that the media would step up but I have huge doubts that they will.  I'm left with the concept that we animal owners need to do better networking amongst ourselves and really make efforts to do "court watch" of these cases.  One thing I'm sure of is that we can't trust officials, activists, or even media to give us accurate information and that we should summarily dismiss their reports until they re-earn our trust.

OK my friends.  It is up to you to see that as many people as possible know and understand that "extra" non-law enforcement people, especially those taking photographs, raise big issues; that they shouldn't be there; that we all have a right to privacy in and near our homes.  And network, network, network!

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