Anderson v. Blake

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

November 14, 2006

UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker

Clerk of Court

TENTH CIRCUIT

AUNDRA ANDERSO N, an

individual,

Plaintiff - Appellee, No. 05-6329

v.

DON BLAKE, individually and as a

state actor police officer for the City

of Norman, Oklahoma, a municipal

corporation,

Defendant - Appellant

and

KIM BERLY LO HM AN SUITER S,

also known as Kimberly Lohman,

individually and as employee of

KOCO-TV; OHIO/OKLAHOM A

H EA RST-A RG Y LE TELEV ISION,

IN C., doing business as KOCO TV, a

N evada corporation; TH E C ITY OF

NORM AN, a M unicipal corporation,

for purposes of injunctive and

equitable relief only; JOH N D OE;

JANE DOE, other unknown persons or

person having responsibility or

involvement in the circumstances of

the violation of the federal civil rights

and/or private rights of the plaintiff,

including other state actors, and/or

private persons acting in concert,

Defendants.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT

FO R TH E W ESTERN DISTRICT O F O K LAH O M A

(D.C. No. 05-CV-729-HE)

Rickey J. Knighton II, (Jeff H arley Bryant and Susan D. Rogers, on the briefs),

Norman, Oklahoma, for Defendant - Appellant.

M ichael C. Salem, Norman, Oklahoma, for Plaintiff - Appellee.

Before KELLY, HOL LOW A Y, and M cCO NNELL, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant Don Blake appeals the district court’s denial of his

Fed. R. Civ. P. 12(b)(6) motion to dismiss based on qualified immunity. Officer

Blake contends that the district court erred by (1) holding that Plaintiff-Appellee

Aundra Anderson possessed a constitutionally protected privacy interest in the

contents of a video depicting her alleged rape, (2) holding that M s. Anderson’s

constitutional privacy interest w as clearly established, and (3) consequently

rejecting Officer Blake’s contention that he is entitled to qualified immunity from

suit. O ur jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

Background

M s. Anderson’s claims arise out of the publication of a videotape depicting

-2-

her alleged rape, which was disclosed to a television reporter and aired on a local

news broadcast in Oklahoma City. Aplt. Br. at 2-3. She alleges she was the

victim of a rape that occurred while she was unconscious, and that she later

discovered a video documenting the rape. Id. After discovering the video, she

reported the rape to Officer Blake, a detective with the City of Norman Police

Department and turned the video over to him. Id. at 3. M s. Anderson alleged that

Officer Blake promised her that the video would remain confidential and would

be used only for law enforcement purposes. Aplt. A pp. at 18 (Compl. ¶ 22).

Sometime thereafter, Officer Blake disclosed the contents of the video to a

reporter named K imberly Lohman and her cameraman, both of whom work for

KOCO-TV, a television station based in Oklahoma City. Aplt. Br. at 3; Aplee.

Br. at 11. M s. Anderson alleges that the officer contacted her by phone and

handed the line to Lohman who attempted to interview her about the details of her

rape. Aplee. Br. at 11. Later, the television station aired portions of the video in

a manner that obscured M s. Anderson’s identity during a news broadcast. Aplt.

Br. at 3. M s. Anderson alleges that there was no law enforcement purpose in

defendant’s release of the video. Aplee. Br. at 3.

The district court denied Officer Blake’s motion to dismiss. Anderson v.

Blake, No. Civ-05-0729-HE, 2005 W L 2210222 (W .D. Okla. Sept. 12, 2005). It

concluded that the video of M s. Anderson’s alleged rape “possesses the requisite

personal nature to give rise to Plaintiff’s legitimate expectation of privacy.” Id.

-3-

at *2. It rejected Officer Blake’s argument that the criminal activity allegedly

depicted on the video rendered it beyond constitutional protection, holding that

the alleged criminal activity depicted was not that of M s. Anderson, but rather the

rapist. Finally, it also rejected Officer Blake’s argument that the video was

destined to be made public, concluding that such public disclosure was not

inevitable.

Relying on Sheets v. Salt Lake County, 45 F.3d 1383 (10th Cir. 1995), the

district court also concluded that M s. Anderson’s privacy interest w as clearly

established under existing law. It concluded that the video depiction of the

alleged rape was of a substantially more personal nature than a diary held to be

protected in Sheets. Accordingly, the district court concluded that M s. Anderson

had met her burden in overcoming the qualified immunity defense.

Discussion

An order denying qualified immunity that raises purely legal issues is

immediately appealable. See Johnson v. Fankell, 520 U.S. 911, 915 (1997). Our

review is de novo. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197,

1199 (10th Cir. 2003). W e accept all well-pleaded allegations of a plaintiff’s

complaint as true and consider them in the light most favorable to the non-moving

party. Id. Accordingly, we w ill not reverse the district court unless “it appears

beyond doubt that the plaintiff can prove no set of facts in support of [her] claim

-4-

which would entitle [her] to relief.” Id. 1

“The doctrine of qualified immunity shields public officials . . . from

damage actions unless their conduct was unreasonable in light of clearly

established law.” Elder v. Holloway, 510 U.S. 510, 512 (1994). Once a

defendant pleads qualified immunity as a defense, the plaintiff must show: (1)

that the defendant’s actions violated a constitutional or statutory right, and (2)

that the rights alleged to be violated were clearly established at the time of the

conduct at issue. Saucier v. Katz, 533 U.S. 194, 201 (2001).

To be clearly established, the contours of a right must be “sufficiently clear

that a reasonable official would understand that what he is doing violates that

right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation and citation

omitted). This means that there need not be precise factual correspondence

between earlier cases and the case at hand, because “general statements of the law

are not inherently incapable of giving fair and clear warning. . . . ” Id. at 741

(citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). In other w ords, a

general constitutional rule that has already been established can “apply with

obvious clarity to the specific conduct in question, even though the very action in

1

Officer Blake’s brief relies on some facts that were not alleged in his

motion to dismiss. Because our review is confined to the pleadings, we do not

consider those facts. If a defendant wishes to raise a qualified immunity

argument based on facts outside the pleadings, he may do so in a motion for

summary judgment. See W alker v. City of Orem, 451 F.3d 1139, 1146 n.5 (10th

Cir. 2006); Langley v. Adams County, 987 F.2d 1473, 1481 n.3 (10th Cir. 1993).

-5-

question has [not] previously been held unlaw ful. Id. A plaintiff can demonstrate

that a constitutional right is clearly established by reference to cases from the

Supreme Court, the Tenth Circuit, or the weight of authority from other circuits.

Smith v. Cochran, 339 F.3d 1205, 1215 (10th Cir. 2003).

I. Privacy Interest in the Contents of the Video

The district court held that M s. Anderson had a constitutionally protected

privacy interest in the contents of the video because of its “personal nature.”

Anderson, 2005 W L 2210222, at *2. This conclusion is well supported by

precedent from the Supreme Court and this circuit. In W halen v. Roe, 429 U.S.

589, 599 (1977), the Supreme Court held that the constitutional right to privacy

includes an “individual interest in avoiding disclosure of personal matters. . . . ”

Relying on W halen, we held in M angels v. Pena, 789 F.2d 836, 839 (10th Cir.

1986), that “[d]ue process thus implies an assurance of confidentiality with

respect to certain forms of personal information possessed by the state.”

Information is protected by the right to privacy when a person has “a legitimate

expectation . . . that it will remain confidential while in the state’s possession.”

Id. W e have held, without listing other factors, that this legitimate expectation of

privacy depends “‘at least in part, upon the intimate or otherw ise personal nature

of the material which the state possesses.’” Sheets, 45 F.3d at 1387 (quoting

M angels, 789 F.2d at 839). Even if personal information is protected by the right

to privacy, the state may still justify its disclosure. Disclosure of such protected

-6-

information must “advance a compelling state interest which, in addition, must be

accomplished in the least intrusive manner.” M angels, 789 F.2d at 839 (internal

citation omitted). In Sheets, we formally articulated the inquiry as a two-part

test. W hen the state discloses information that is alleged to be protected by the

right to privacy, we determine first whether the information is protected by the

right to privacy, and second, whether the state can demonstrate that it had a

compelling interest for disclosure and that it used the least intrusive means of

disclosing the information. Sheets, 45 F.3d at 1387.

M s. Anderson possesses a constitutionally protected privacy interest in the

video because it depicts the most private of matters: namely her body being

forcibly violated. As the Sixth Circuit noted, “[p]ublically revealing information

regarding [sexuality and choices about sex] exposes an aspect of our lives that w e

regard as highly personal and private.” Bloch v. Ribar, 156 F.3d 673, 685 (6th

C ir. 1998). Such a conclusion is also fully justified by precedent in our own

circuit. In Cumbey v. M eachum, 684 F.2d 712, 714 (10th Cir. 1982) (per

curiam), we held that the constitutional right of privacy may be violated when

guards w atch inmates of the opposite sex undressing or showering. Later, in

Eastw ood v. D epartment of C orrections, 846 F.2d 627, 631 (10th Cir. 1988), we

stated more explicitly that the right to privacy is triggered when “an individual is

forced to disclose information regarding personal sexual matters.” There, we

concluded that a person may have a constitutional privacy interest in refusing to

-7-

answer questions concerning sexual history posed by an employer. In Sheets, the

case primarily relied upon by the district court, we held that a husband may have

a legitimate expectation of privacy in his w ife’s diary–which was turned over to

the police as part of a criminal investigation–because it contained reflections

about the couple’s personal relationship. 45 F.3d at 1388.

W hile there is no case in this circuit addressing whether a video depicting a

rape may be within the right to privacy, it is not surprising, given our precedent,

that we should reach such a conclusion. If a person has a legitimate expectation

of privacy in a diary, in undressing before a guard, or in answering questions

concerning sexual history, certainly a person has a reasonable expectation that a

video of his or her rape will not be aired to thousands in a public news broadcast.

In Bloch, the Sixth Circuit held that oral disclosure to the press of the intimate

details of a rape violates the constitutional right to privacy absent a compelling

government justification for disclosure. 156 F.3d at 686. Notably, the Bloch

court relied on Eastwood and M angels from this circuit. Other circuits have also

held that unwelcome disclosure of private sexual information is protected by the

right to privacy. See, e.g., Sterling v. Borough of M inersville, 232 F.3d 190, 196

n.4 (3d Cir. 2000) (“[W]e agree with other courts concluding that [forced

disclosure of one’s sexual orientation] is intrinsically private.”); Pow ell v.

Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (“The excruciatingly private and

intimate nature of transsexualism, for persons who wish to preserve privacy in the

-8-

matter, is really beyond debate.”).

Despite this authority, Officer Blake argues that the video is not protected

by the right to privacy because it contains evidence of a crime. He relies on

Cawood v. Haggard, 327 F. Supp. 2d 863 (E.D. Tenn. 2004), aff’d without

opinion, Caw ood v. Booth, 125 F.App’x. 700 (6th Cir. 2005), for support. In

Cawood, the district court concluded that the airing of a video documenting the

plaintiff’s private sexual conduct was not protected by the right to privacy. Id. at

880. The court rested its decision on three key points: (1) the video in question

depicted the plaintiff’s ow n suspected criminal activity (trading sex for a

reduction in legal fees), (2) the video was destined to become public as it was to

be used as evidence in a trial against the plaintiff, and (3) the plaintiff waived any

privacy interest he might have in the video by describing its contents in a press

conference. Id.

Officer Blake argues that Cawood should be read as excluding from privacy

protection any otherwise personal information that contains evidence of criminal

conduct, regardless of whether the party asserting the right to privacy is the one

alleged to have committed a crime. Aplt. Br. at 10. He also argues that, like

Cawood, the video here was bound to be made public at a trial of the perpetrator

in this case, or in other cases in which the perpetrator might be charged. Id. at 8.

This is too broad a reading of Cawood. Cases must be read against their

facts, and an obvious and critical difference between Cawood and this case is that

-9-

M s. Anderson is the victim of the crime depicted, not the perpetrator. W hile

validly enacted laws place people on notice that engaging in certain conduct is not

within the right to privacy, see M angels, 789 F.2d at 839, we have never held that

a victim cannot assert a right to privacy merely because a crime has been

perpetrated against him or her.

To be sure, private information that otherwise would be protected by the

right to privacy may nevertheless be disclosed if the government can demonstrate

a compelling interest and if it uses the least intrusive means of disclosure.

Sheets, 45 F.3d at 1387. But Sheets requires a fact specific inquiry into the

disclosure of private information that forms the basis of the plaintiff’s complaint.

That private information has evidentiary value in a criminal prosecution does not

give the government carte blanche to disclose the information in any manner it

wishes prior to trial. As we said in Sheets concerning the diary: “To turn a diary

over to a limited group for what one perceives to be a limited and proper purpose

is quite different than inviting publication of the material.” Id. at 1388. Thus,

whether a particular government need and a particular manner of disclosure are

sufficient to overcome the expectation of privacy is necessarily a question of

degree. Just because disclosing private information at a possible criminal trial is

justified by the evidentiary nature of that information, it does not follow that

disclosing the same information on a television news broadcast is similarly

justified.

- 10 -

Officer Blake also suggests that because the video would have been

inevitably disclosed at trial, it is beyond any legitimate expectation of privacy. 2

Again, Officer Blake asks us to ignore the fact specific nature of the Sheets test.

Because there is an “individual interest in avoiding disclosure,” id. at 1387, the

inevitable disclosure of the video at trial does not necessarily justify its release at

the time and in the manner it was disclosed. M oreover, we cannot assume

inevitable disclosure consistent with our obligation to accept all of M s.

Anderson’s well-pleaded factual allegations as true and view them in a light most

favorable to her. As it stands, Officer Blake cannot establish, based on the

pleadings alone, that disclosure was inevitable. As the district court noted,

“[g]iven the nature of what is alleged to have been depicted on the tape, it is

entirely possible that the criminal charges against plaintiff’s attacker might have

been resolved without a trial.” Anderson, 2005 W L 2210222, at *2.

2

Officer Blake asks us to follow Cawood, where the court expressly found

that the video “was destined to become public.” 327 F. Supp. 2d at 880. Yet, in a

later portion of his brief, Officer Blake argues that whether disclosure of the

video was inevitable “is not material” because at the time the disclosure was

made in Cawood, “additional public disclosure was far from inevitable.” Aplt.

Br. at 9. Thus, Officer Blake seems to suggest that even if the video could have

been inevitably disclosed, it is beyond any legitimate expectation of privacy. His

reading of Cawood differs from the clear holding of the court that the videotape

“was destined to become public.” Furthermore, because we conclude that the

right to privacy is not necessarily defeated by actual inevitable disclosure of

private information, we need not address Officer Blake’s apparent alternative

argument that possible inevitable disclosure similarly defeats the right to privacy.

- 11 -

Officer Blake may yet articulate a compelling government interest for

disclosing the video to the public and justify the manner of its disclosure. But at

this point, aside from his argument that the video would be inevitably disclosed as

part of a criminal prosecution, none appears in the district court pleadings

properly considered on a motion to dismiss. In her complaint, M s. Anderson

alleges that no legitimate government interest existed for disclosure because the

identity of the alleged perpetrator was already known by Officer Blake at the time

the video was disclosed. Aplt. App. at 24 (Compl. ¶ 38). Officer Blake argues in

his reply brief that another victim of the plaintiff’s alleged attacker came forth

after the airing of the video, and that, as a result, airing of the video “may have

caused additional victims to come forth.” Aplt. Reply Br. at 5-6. He, admits,

however, that this “law enforcement reason” was not offered in the motion to

dismiss because it is a matter outside the pleadings. Id. at 6. W hile this reason

may be considered in subsequent proceedings, we do not consider it at this

juncture.

Relying on supplemental authority submitted prior to oral argument, see

Stidham v. Peace Officer Stds. & Training, 265 F.3d 1144, 1156 (10th Cir. 2001),

Officer Blake also argues that M s. Anderson has not adequately alleged an

affirmative link between his conduct and any constitutional violation caused by

the reporter’s decision to broadcast the tape. However, M s. Anderson alleges that

Officer Blake and Lohman acted jointly and in concert, and the surrounding facts

- 12 -

of the complaint adequately support an inference of an affirmative link.

II. Privacy Interest as Clearly Established

To defeat defendant’s qualified immunity claim, M s. Anderson must also

demonstrate that her privacy interest in the video was clearly established at the

time the officer disclosed it. See M imics, Inc. v. Village of Angel Fire, 394 F.3d

836, 841 (10th Cir. 2005). The contours of the right “must be sufficiently clear

that a reasonable official would understand that what he is doing violates that

right.” Hope, 536 U.S. at 739 (internal quotations and citations omitted).

Because we do not require “precise factual correspondence” between the cases

establishing the law and the case at hand, Eastw ood, 846 F.2d at 630, “[i]t is

incumbent upon government officials to relate established law to analogous

factual settings,” id. (internal quotation and citation omitted).

W e think M s. Anderson’s privacy interest in the video (as challenged by

Officer Blake in his motion to dismiss) was clearly established based on Sheets,

Eastwood, M angels, and Cumbey, all decided before the events here. These cases

were sufficiently clear to the Sixth Circuit that it relied on them to form the basis

of its holding in Bloch, also decided before the events here. These cases must be

considered in the context of the Supreme Court’s holding in Hope that a general

constitutional rule that has already been established can “apply with obvious

clarity to the specific conduct in question, even though the very action in question

has [not] previously been held unlawful.” 536 U.S. at 741 (internal quotations

- 13 -

and citations omitted).

Because the district court relied primarily on Sheets, Officer Blake attempts

to draw distinctions between Sheets and this case to demonstrate that M s.

Anderson’s privacy interest was not clearly established. He distinguishes

Sheets on three grounds: (1) the information conveyed in Sheets was linked to a

spousal relationship, (2) the diary in Sheets was not evidence that could have

been used in a criminal trial, (3) the disclosure in Sheets occurred after the

criminal investigation had ended. Aplt. Br. at 13. W hile these factual

distinctions between Sheets and the instant case are correct, they do not change

the result here. Our cases do not indicate that information must be linked to a

spousal relationship to be within the right to privacy. Instead, we have repeatedly

held that whether information is within the right to privacy depends on the

“intimate or otherwise personal nature of the material which the state possesses.”

Sheets, 45 F.3d at 1387. Likewise, the usefulness of the information in a criminal

proceeding and the timing of the disclosure bear on, but are not dispositive of,

whether the government has a legitimate reason to disseminate information that is

otherw ise protected by the right to privacy.

W e recognize that a plaintiff alleging improper disclosure of private

information must also demonstrate that a defendant lacked a compelling interest

to disclose the information and did not utilize the least intrusive means of

- 14 -

disclosure. 3 But we think M s. Anderson has satisfied her burden at this stage of

the proceedings. Her complaint alleged “[t]here was no compelling law

enforcement or public interest that permitted the disclosure, release, and

broadcast of the tape at this stage of the investigation . . . in that the identity of

the Attacker was already well known to the Police Department and Defendant

Blake.” Aplt. App. at 24 (Compl. ¶ 38). The complaint also asserts that the

disclosure and broadcast of the tape “were not accomplished in the least intrusive

m anner. . . . ” Id. The motion to dismiss did not address these allegations. At

this stage of the proceedings, we w ill not require M s. Anderson to disprove every

possible compelling interest that Officer Blake might assert when he does not

move for qualified immunity on this basis. See Currier v. Doran, 242 F.3d 905,

916-17 (10th Cir. 2001) (rejecting “heightened pleading standard” for qualified

immunity).

III. Plaintiff’s Alternative Request for Leave to Amend

M s. Anderson included a request for leave to amend in her response to

defendant’s motion to dismiss. Aplt. App. at 72-73. She attempted to preserve

this request in her response brief before this court. Aplee. Br. at 6-7. She

3

W e read Sheets to hold that a plaintiff has a constitutionally protected

privacy interest in information when a plaintiff has a legitimate expectation of

privacy in the information and when the defendant fails to show a compelling

interest in disclosing the information and that it used the least intrusive means of

disclosure. 45 F.3d at 1387.

- 15 -

essentially seeks to amend her complaint to clarify allegations of procedural due

process violations that were “not well-stated” in the complaint, id. at 7, and which

became more apparent following the limited discovery that took place after

Officer Blake filed his motion to dismiss, id. at 8-10.

The attempted procedural due process claim rests on Officer Blake’s

alleged deviation from the City of Norman’s internal disclosure procedures and

the Oklahoma O pen Records Act. Id. at 9. There is no reference to either the

internal procedures or the state statute in the complaint. It appears that M s.

Anderson only considered the procedural due process claim after Officer Blake

filed his motion to dismiss. Id. at 7.

“As a general rule an appellate court does not consider an issue not passed

upon below.” Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).

The district court did not rule on the request for leave to amend. Because we

affirm the order of the district court denying qualified immunity, we need not rule

on the request for leave to amend. Instead, we consider the request to be still

pending in the district court, which can address the matter and decide whether to

grant leave to amend or to determine that an independent claim for procedural due

process was sufficiently pled in the initial complaint.

A FFIR ME D.

- 16 -