setting forth general principles regarding access to information under the First Amendment
How later courts described this case
- setting forth general principles regarding access to information under the First Amendment
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0339p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiffs-Appellants, -
S.H.A.R.K.; STEPHEN HINDI,
-
-
-
No. 06-4009
v.
,
>
METRO PARKS SERVING SUMMIT COUNTY; DAVE -
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RANKIN; JUSTIN SIMON; WHITE BUFFALO, INC.;
Defendants-Appellees. -
ANTHONY DENICOLA; JOHN DOE,
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N
Appeal from the United States District Court
for the Northern District of Ohio at Akron.
No. 04-02329—John R. Adams, District Judge.
Argued: June 1, 2007
Decided and Filed: August 24, 2007
Before: MOORE and GRIFFIN, Circuit Judges; McKINLEY, District Judge.*
_________________
COUNSEL
ARGUED: Kenneth D. Myers, Cleveland, Ohio, for Appellants. Nick Tomino, TOMINO &
LATCHNEY, Medina, Ohio, Mark J. Scarpitti, OLDHAM & DOWLING, Akron, Ohio, John T.
McLandrich, MAZANEC, RASKIN & RYDER, Cleveland, Ohio, for Appellees. ON BRIEF:
Kenneth D. Myers, Cleveland, Ohio, for Appellants. Nick Tomino, TOMINO & LATCHNEY,
Medina, Ohio, Mark J. Scarpitti, William D. Dowling, OLDHAM & DOWLING, Akron, Ohio, John
T. McLandrich, Frank H. Scialdone, MAZANEC, RASKIN & RYDER, Cleveland, Ohio, John L.
Reyes, BUCKINGHAM, DOOLITTLE & BURROUGHS, Akron, Ohio, for Appellees.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiffs-Appellants S.H.A.R.K. (Showing
Animals Respect and Kindness) and Stephen Hindi (“Hindi”) (collectively “the plaintiffs”) appeal
the district court’s order granting summary judgment to the Defendants-Appellees Metro Parks
Serving Summit County (“Metro Parks”); Dave Rankin (“Rankin”); Justin Simon (“Simon”); White
*
The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western District of Kentucky,
sitting by designation.
1
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Buffalo, Inc. (“White Buffalo”); Anthony DeNicola (“DeNicola”); and John Doe (collectively “the
defendants”). The plaintiffs sued under 42 U.S.C. § 1983, the Privacy Protection Act, 42 U.S.C.
§ 2000aa et seq., and state-law tort, alleging that the defendants violated their First Amendment
rights. Although we disagree with the district court’s analysis, its decision to grant summary
judgment to the defendants was correct; accordingly, we AFFIRM.
I. BACKGROUND
S.H.A.R.K. is an Illinois not-for-profit corporation created to expose inhumane treatment of
animals. Hindi is S.H.A.R.K.’s founder and president. Metro Parks is a governmental entity
operating public parklands. Rankin and Simon are park rangers employed by Metro Parks.
DeNicola is the president of White Buffalo, Inc., a wildlife research and management organization
that provides deer-culling services. DeNicola provides sharpshooting training to those who hire
White Buffalo.
In November 2003, Metro Parks contracted with White Buffalo and DeNicola to assist in a
planned deer-culling operation. The goal was to kill approximately two-hundred deer in four
separate parks within Metro Parks’s system over a ten-day period. DeNicola trained the
participating park rangers so that they would be qualified by the following year to kill deer without
DeNicola. A park was closed during the times when the culling was scheduled due to public-safety
concerns.
DeNicola was in charge of the rangers for training purposes. Simon testified that, during the
times he was detailed to DeNicola, he was to follow DeNicola’s directions. Rankin also stated that,
during deer culling, DeNicola was in charge of him and the other park rangers. However, Metro
Parks official Mike Johnson (“Johnson”) was responsible for coordinating the entire operation. On
the culling nights, DeNicola answered to Johnson.
Meanwhile, the plaintiffs had plans of their own. On or about February 22, 2004, the
plaintiffs entered the parks during daytime hours (while the parks were open to the public) and
placed cameras in various areas that they believed to be bait sites. The plaintiffs placed the cameras
on the ground in bags. Each bag was covered by leaves, and a wire ran from the bag up the side of
a tree. A small camera lens was attached to the bark of the tree with a small, screw-type mount or
bracket. The cameras were pre-programmed to record during set hours. The plaintiffs intended to
record the entire ten-day deer cull, then select video to share with the news. Each day, Hindi went
back to the camera locations to change out the cameras’ digital imaging and to obtain the images
from the previous night.
On February 29, 2004, during the course of the deer-culling operation, Simon discovered one
of the cameras on a tree located several feet from a public road. Simon contacted Eric Fitch
(“Fitch”), a Metro Parks supervisor, who came to the site and removed the camera. The rangers
were instructed to stop culling for the night; along with DeNicola, they searched for other cameras.
In all, six cameras were found that night.1 None of the cameras and equipment bore information
identifying the owners. The rangers took the cameras and equipment to the ranger station where
they were treated as “found property.” Joint Appendix (“J.A.”) at144, 845 (Dickson Aff. at ¶ 4;
Simon Dep. at 55).
The next day, March 1, Rankin and Simon continued to look for, but did not find any,
cameras. In accord with Fitch’s instruction, Rankin and Simon returned to the ranger station to
1
After the cameras and equipment were discovered, the plaintiffs released to the media the footage they had
earlier acquired. The footage was broadcast on the local television news.
No. 06-4009 S.H.A.R.K. et al. v. Metro Parks Page 3
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inventory the cameras and equipment found the previous night. According to DeNicola, Rankin
called DeNicola and told him that he was concerned that the cameras may have captured images of
Rankin’s personal vehicle which Rankin had used to search for cameras. Rankin asked DeNicola
to come to the ranger station to see if he could operate the camera. In contrast, Simon and Rankin
both testified that neither of them asked DeNicola to come to the ranger station.
According to DeNicola, Rankin was concerned about the video images because Rankin’s
license plate was visible and neither Rankin nor Metro Parks would be able to control the release
of these images, because the cameras were “found property.” J.A. at 563 (DeNicola Dep. at 81).
DeNicola testified that Rankin asked if DeNicola could erase the images and that DeNicola
responded by deleting the images on the camera. When asked if Rankin knew what DeNicola was
doing when the latter deleted the images, DeNicola replied, “It was apparent at the time that it was
addressing his concerns.” J.A. at 564 (DeNicola Dep. at 82).
Rankin denied telling DeNicola to erase the images; Rankin instead stated that DeNicola
deleted the images completely of his own accord. However, Rankin and Simon both admitted that
they did not try to stop DeNicola from deleting the images. Simon acknowledged that the camera
equipment was in the custody and control of both Rankin and Simon himself. Moreover, Simon
admitted that DeNicola would not have had access to the cameras without Rankin and Simon
allowing him into the area where the cameras were located. No supervisors or officials at Metro
Parks approved or authorized the erasure of the images on the video cameras. That same day of the
erasures, Hindi contacted Metro Parks and claimed ownership of the cameras and equipment.
On March 2, 2004, Metro Parks contacted local prosecutors in Cuyahoga Falls and Akron
about the possibility of filing criminal charges against the plaintiffs. Metro Parks disciplined Simon
and Rankin for “serious misconduct,” for allowing DeNicola to delete the images, J.A. at 359, 370
(Ranger Simon Report; Ranger Rankin Report), and contacted the prosecutors’ offices in Cuyahoga
Falls and Akron to determine whether to bring criminal charges against Simon, Rankin, and
DeNicola. The prosecutors’ offices decided not to bring any criminal charges against any of the
plaintiffs or defendants. Metro Parks returned the cameras and equipment to Hindi on March 30,
2004.
The plaintiffs sued the defendants in U.S. district court under 42 U.S.C. § 1983, 42 U.S.C.
§ 2000aa et seq., and state law. The defendants filed motions for summary judgment. The district
court granted the defendants summary judgment on the federal claims and, declining to exercise
supplemental jurisdiction, dismissed the state-law claims without prejudice. This appeal follows;
we have jurisdiction pursuant to 28 U.S.C. § 1291.
II. ANALYSIS
A. Standard of Review
We review de novo a district court’s order granting summary judgment. DiCarlo v. Potter,
358 F.3d 408, 414 (6th Cir. 2004). Summary judgment is proper if the evidence, taken in the light
most favorable to the nonmoving party, shows that there are no genuine issues of material fact and
that the moving party is entitled to a judgment as a matter of law. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); FED. R. CIV. P. 56(c).
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B. First Amendment Claims Under 42 U.S.C. § 1983
1. Applicable Test
The parties make all of their First Amendment arguments under the analytical construct set
forth in Parks v. City of Columbus, 395 F.3d 643, 647 (6th Cir. 2005). The district court also
analyzed this case under Parks, presumably because the parties agreed that it was the applicable test.
However, we believe that the Parks test is inapplicable to the case at bar.
In Parks, a freedom of expression case, we set forth a three-part test for determining whether
the government has violated one’s free-speech rights: (1) we ask whether the speech is protected
under the First Amendment; (2) if so, using the public-forum doctrine, we ascertain whether the
applicable forum is public or nonpublic; and (3) applying the appropriate standard for the forum, we
ask whether the government’s prohibition on speech passes muster under the First Amendment. Id.
The case before us is about access to information as opposed to the right to expression.
Although access cases are rooted in First Amendment principles, they have developed along
distinctly different lines than have freedom of expression cases. See, e.g., Houchins v. KQED, Inc.,
438 U.S. 1, 9-10 (1978) (setting forth general principles regarding access to information under the
First Amendment); Pell v. Procunier, 417 U.S. 817, 834-35 (1974) (same); Branzburg v. Hayes, 408
U.S. 665, 684 (1972) (same). See also D’Amario v. Providence Civic Ctr. Auth., 639 F. Supp. 1538,
1543 n.4 (D. R.I. 1986), aff’d without opinion, 815 F.2d 692 (1st Cir. 1987) (recognizing that access
cases require a different analytical approach than do expression cases). “It has generally been held
that the First Amendment does not guarantee the press a constitutional right of special access to
information not available to the public generally.” Branzburg, 408 U.S. at 684. Further, “[n]either
the First Amendment nor the Fourteenth Amendment mandates a right of access to government
information or sources of information within the government’s control.” Houchins, 438 U.S. at 15.
Importantly, however, “[t]here is an undoubted right to gather news ‘from any source by means
within the law. . . .’” Id. at 11 (quoting Branzburg, 408 U.S. at 681-82).
Although the Supreme Court has established general principles with respect to access claims,
what is missing from these cases is a clearly defined framework in which to analyze these claims.2
We find D’Amario, 639 F. Supp. 1538, instructive. In D’Amario, the plaintiff-photographer
challenged the defendant’s no-photography rule. The D’Amario court synthesized the Supreme
Court case law into the following test:
The rule which emerges from this caselaw is reasonably clear. Although the
press cannot command access wherever, whenever, and however it pleases, neither
can government arbitrarily shroud genuinely newsworthy events in secrecy.
Members of the press, to their own behoof and as representatives of the public, have
some (limited) claim to access when government attempts selectively to delimit the
audience (or when government cooperates in enforcing such restrictions). In such
circumstances, the state’s rulemaking power is not absolute: if the first amendment
is to retain a reasonable degree of vitality, the limitations upon access must serve a
legitimate governmental purpose, must be rationally related to the accomplishment
2
While the Supreme Court has developed a framework for analyzing access cases dealing with the special issue
of access to judicial proceedings, see United States v. Miami Univ., 294 F.3d 797, 821 (6th Cir. 2002) (explaining the
framework), such a framework is missing in access cases outside of the judicial-proceeding context. Because the case
law discussing access to judicial proceedings is based on the unique issues that arise in that context, see id. at 820-21,
this framework is inapplicable to the case at bar.
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of that purpose, and must outweigh the systemic benefits inherent in unrestricted (or
lesser-restricted) access.
Id. at 1543 (footnote omitted). The foregoing test recognizes that the government cannot use the fact
that it has made a rule as an absolute shield against access.
With D’Amario as our background, we analyze access cases in the following manner: The
overarching question is whether the plaintiffs’ news-gathering efforts were “within the law.”
Houchins, 438 U.S. at 11 (quoting Branzburg, 408 U.S. at 681). Stated differently, the question is
whether the plaintiffs had a lawful right of access to the information. If the plaintiffs did have a
lawful right of access, then the government violates the First Amendment when it blockades access.
The lawful-right-of-access inquiry would be a circular endeavor if we merely determined that there
was a rule prohibiting access and then stopped there. Instead, we must determine whether the rule
blocking access is, itself, constitutional.
First, we ask what rule the government is invoking that prohibits the plaintiffs from access
to information, and whether that rule “selectively [] delimit[s] the audience.” D’Amario, 639 F.
Supp. at 1543. Cf. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 641 (1994) (Content-based
restrictions create “the inherent risk that the Government seeks not to advance a legitimate
regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate
through coercion rather than persuasion. These restrictions ‘rais[e] the specter that the Government
may effectively drive certain ideas or viewpoints from the marketplace.’” (alteration in original)
(quoting Simon & Schuster, Inc. v. Members of State Crime Victims Bd., 502 U.S. 105, 116 (1991))).
Second, we inquire into the government’s stated interest for invoking the rule. Third, we
apply the applicable test to determine whether the government’s stated interest is sufficiently related
to the means of accomplishing that interest: if the rule does not selectively delimit the audience, we
uphold the restriction if it is reasonably related to the government’s interest; if the rule does
selectively delimit the audience, a stricter level of scrutiny will apply.3
In the case at bar, the plaintiffs argue that the defendants violated the First Amendment by
committing two distinct acts: removing the cameras and deleting the images on the cameras. As
each act involves different facts and different justifications, we examine each separately.
2. Removing the Cameras
The plaintiffs argue that they did not violate any laws by placing the cameras in the parks
to record the deer-culling activity, and that, by removing the cameras, the defendants violated their
First Amendment right to access the information. Metro Parks invoked four different rules which
could arguably justify removing the plaintiffs’ cameras. Each justification is analyzed below.
a. Park Closed to Public During Deer Culling
Metro Parks argues that the plaintiffs had no lawful right of access to video record the deer
culling because the parks were closed to the public during the deer-culling operation. Metro Parks
Br. at 14. Under § 13 of Metro Parks’s Rules and Regulations, “[n]o person shall enter or remain
3
Our decision in Neinast v. Bd. of Trs. of Columbus Metro. Library, 346 F.3d 585 (6th Cir. 2003), is consistent
with this framework. Neinast involved a shoeless patron’s challenge to a mandatory-shoe rule of a city public library.
We held that the regulation was content-neutral, did not directly impact the right to receive information, and satisfied
rational-basis review because it protected public health and safety and also protected the library’s economic well-being.
No. 06-4009 S.H.A.R.K. et al. v. Metro Parks Page 6
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on the land or premises of the Park District at any time when the parks are not designated as open
for use . . . .” J.A. at 152 (Rules and Regs.). This rule does not selectively delimit the audience.
We next ask why Metro Parks closed the parks to the public during the deer-culling
operation. Metro Parks asserts that the rule was4 enacted out of safety concerns, because the
operation involved the use of high-powered rifles.
The next question is whether the government’s interest reasonably relates to the rule. None
of the plaintiffs were physically in the park during the deer culling, and the presence of video
cameras did not reasonably relate to the safety concerns behind the parks’ closure. There is no
dispute that the plaintiffs placed the cameras in the parks while the parks were open to the public.
Accordingly, there is no nexus between why the parks were closed and why the defendants removed
the cameras. Metro Parks argues that when the defendants first found the cameras they did not know
if people were in the parks, and therefore, they had to stop culling operations for the night. But,
even assuming the truth of this claim, it still fails to explain why the defendants would need to
remove the cameras.5
Because the reason for the park-closure rule was completely unrelated to the type of access
sought by the plaintiffs when they sought to video record the deer-culling operation, the park-closure
rule cannot form the basis for blocking access to the information sought by the plaintiffs. The
district court relied on the park-closure rule in granting summary judgment to the defendants with
respect to removing the cameras. Although we ultimately affirm the district court’s judgment, we
do so on grounds different from the district court.
b. Areas Restricted for Public Use
The next rule invoked by the defendants as a justification for removing the cameras is § 8.8
of Metro Parks’s Rules and Regulations: “No portion of the Park shall be used for purpose of way,
except drives, roadways, paths, walks and trails established for such purpose; . . . .” J.A. at 152
(Rules and Regs.). According to Metro Parks, the cameras were installed on trees outside of areas
designated for Metro Parks public use. This rule does not selectively delimit the audience. Because
the parties crafted their arguments under the Parks analysis, Metro Parks did not articulate a
justification for invoking this rule. Accordingly, we cannot ascertain whether the rule is reasonably
related to Metro Parks’s interest.
c. Prohibition on Disturbing Trees
The third rule invoked by Metro Parks as a justification for removing and confiscating the
cameras is § 1 of Metro Parks’s Rules and Regulations: “No person shall injure, deface or disturb
any part of the Park nor any building, sign, equipment or other property found therein; nor shall any
tree, flower, shrub, rock or other mineral be removed, injured or destroyed.” J.A. at 151 (Rules and
Regs.). This rule does not selectively delimit the audience.
4
Rankin asserts that another reason for the rule was to protect the identities of the shooters. However, as Metro
Parks is the party that enacted the rule and it does not allege protection of identities as a reason for the rule, we do not
credit Rankin’s assertion and need only address the safety rationale.
5
White Buffalo and DeNicola also argue that if the plaintiffs had no right to be physically present, they did
“not have a greater right to secretly record the images.” White Buffalo and DeNicola Br. at 33. White Buffalo and
DeNicola fail to explain why the right to record the images is somehow greater than the right to be physically present.
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Metro Parks argues that it was justified in removing the cameras under this rule in order to
protect the well-being of the trees to which the cameras were affixed. There is a reasonable
relationship between Metro Parks’s decision to take down the cameras and its concern that the
cameras could harm the trees. The plaintiffs argue that the defendants have not alleged that any
trees were, in fact, damaged, only that trees could have been damaged. But Metro Parks need not
show that there was actual damage before taking down the cameras pursuant to § 1 of the Rules and
Regulations—taking down the cameras was a reasonable step in light of Metro Parks’s concern
about protecting trees. Accordingly, the defendants did not violate the First Amendment when they
removed the cameras because they were acting pursuant to a rule that did not selectively delimit the
audience and was reasonably related to the legitimate concern of protecting trees.
d. Found-Property Policy
Finally, Metro Parks asserts that removing the cameras was justified pursuant to Metro
Parks’s policy with respect to found property. According to the Found-Property policy, “[a]ll
articles found by or turned in to a Metro Park employee by a park patron will be turned in to the
Area Manager or designated supervisor immediately for safekeeping.” J.A. at 146 (Found-Property
Policy).
This policy does not selectively delimit the audience. Further, the policy serves the
legitimate purpose “to provide a uniform method of receiving, safeguarding, and disposing of found
property.” Id. After finding the cameras, the defendants acted in accordance with Metro Parks’s
policy by removing and inventorying the cameras as found property. The defendants’ actions were
reasonably related to the policy’s purpose of maintaining a uniform method addressing found
property. The defendants did not violate the First Amendment when they removed the cameras
because they were acting pursuant to a policy that did not selectively delimit the audience and that
was reasonably related to Metro Parks’s stated interest.
e. Conclusion
Metro Parks’s prohibition on disturbing trees and its policy for handling found property each
provide a basis justifying its removing the plaintiffs’ cameras. Because the defendants did not
violate the plaintiffs’ First Amendment rights by removing the cameras, the district court did not err
in granting the defendants summary judgment on this part of the plaintiffs’ § 1983 claim. We turn
now to examine the plaintiffs’ § 1983 claim insofar as it pertains to the erasure of the video-recorded
images.
3. Erasure of Tapes
The issue of whether erasing the video images violated the plaintiffs’ First Amendment right
requires analysis of three separate questions. First, we analyze whether Metro Parks may be liable
for the actions of Rankin, Simon, and DeNicola. Second, we inquire whether Rankin and Simon
may be held liable when they were sued in their official capacities only. Third, we ask whether
DeNicola and White Buffalo were liable as state actors. Because we answer each of these questions
in the negative, the plaintiffs cannot prevail on this part of their § 1983 claim, and the district court
was correct in granting summary judgment in favor of the defendants.
a. As a Matter of Law, Metro Parks Cannot Be Held Liable for the
Erasure of the Tapes.
“In order to prevail on a § 1983 claim, [the] [p]laintiffs must demonstrate that [the]
[d]efendant[s] deprived them of their ‘rights, privileges, or immunities secured by the Constitution’
under color of state law.” Lindsey v. Detroit Entm’t, LLC, 484 F.3d 824, 827 (6th Cir. 2007)
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(quoting 42 U.S.C. § 1983). For a governmental entity to be liable under 42 U.S. § 1983, it must
be the “moving force behind the deprivation,” such that the “entity’s policy or custom . . . played
a part in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (internal
quotation marks omitted).
Although there are conflicting accounts as to how DeNicola ended up at the ranger station
that day, all parties agree that DeNicola erased the tapes, and that Rankin and Simon did nothing to
stop him. No one in this case has asserted that Metro Parks was aware that the three men were
erasing the tapes, or that Metro Parks had a policy or custom that would condone such action.
In fact, after Metro Parks found out what had happened, it suspended Rankin and Simon for
two days without pay because they “failed to secure and protect the integrity of found property that
was collected.” J.A. at 149, 150 (Ltr. to Simon; Ltr. to Rankin). The plaintiffs have made no
argument that the tapes were erased pursuant to any of Metro Parks’s policies or customs.
Accordingly, even if the actions of Rankin, Simon, and DeNicola violated the First Amendment,
Metro Parks could not be liable, as a matter of law, for their actions under § 1983, and the district
court did not err in granting summary judgment in Metro Parks’s favor.
b. As a Matter of Law, Rankin and Simon Cannot be Held Liable
for the Erasure of the Tapes, Because They Were Sued in Their
Official Capacities Only.
The plaintiffs sued Rankin and Simon in their official capacities only. When an official is
sued in his or her official capacity under § 1983, “the [governmental] entity’s policy or custom must
have played a part in the violation of federal law.” Graham, 473 U.S. at 166 (internal quotation
marks omitted). Because the plaintiffs did not allege that Metro Parks’s policy or custom played
any part in why the tapes were erased, the plaintiffs cannot prevail, as a matter of law, in a § 1983
claim against Rankin or Simon in their official capacities. Accordingly, the district court was
correct in granting summary judgment in Rankin and Simon’s favor.
c. As a Matter of Law, DeNicola and White Buffalo Cannot be
Held Liable for the Erasure of the Tapes, Because They Are
Not State Actors.
Because DeNicola is not a government employee and White Buffalo is not a government
entity, we must determine whether they can be held liable under 42 U.S.C. § 1983. “First and
Fourteenth Amendment protections, codified in 42 U.S.C. § 1983, are triggered only in the presence
of state action and [] a private entity acting on its own cannot deprive a citizen of First Amendment
rights.” Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). On the other hand, “a
private entity can be held to constitutional standards when its actions so approximate state action
that they may be fairly attributed to the state.” Id.
Although the state-action analysis is a normative and fact-bound endeavor, see Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001), we utilize three tests
to assist us in our inquiry. Lansing, 202 F.3d at 828-30. These tests are the public-function test, the
state-compulsion test, and the nexus test. Id. The plaintiffs argue that, even though DeNicola is not
a government employee and White Buffalo is not a government entity, their actions so approximated
state action that they are subject to liability under § 1983. We conclude that neither DeNicola or
White Buffalo qualify as state actors under any of the state-action formulations.
“The public function test requires that ‘the private entity exercise powers which are
traditionally exclusively reserved to the state, such as holding elections or eminent domain.’” Id.
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at 828 (quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992)). Having neglected to
present an argument that deer-culling satisfies the requirements of the public-function test, plaintiffs
have forfeited this argument. See United States v. Reed, 167 F.3d 984, 993 (6th Cir.), cert. denied,
528 U.S. 897 (1999) (stating that a party forfeits an argument on appeal when it is mentioned in only
a cursory manner with no further development).
“The state compulsion test requires that a state exercise such coercive power or provide such
significant encouragement, either overt or covert, that in law the choice of the private actor is
deemed to be that of the state.”6 Lansing, 202 F.3d at 829 (internal quotation marks omitted). Here
the plaintiffs point to the “encouragement” Rankin and Simon gave to DeNicola to delete the images
on the tapes. Although there is a fact dispute as to how DeNicola arrived at the ranger station, the
version most favorable to the plaintiffs was that Rankin and Simon asked him to come. At most,
Rankin and Simon asked if DeNicola knew how to erase the tapes, and they did not stop him when
he began to do so. Metro Parks had no knowledge of this activity at the time that it was occurring.
On this record, there is no coercion; DeNicola made a free-will choice to erase the images.
Likewise, to the extent that Rankin and Simon (two rogue rangers) “encouraged” him, this is not the
type of significant encouragement which would turn DeNicola’s choice to delete the tapes into that
of government action.
“Under the nexus test, ‘the action of a private party constitutes state action when there is a
sufficiently close nexus between the state and the challenged action of the regulated entity so that
the action of the latter may be fairly treated as that of the state itself.’” Id. at 830 (quoting Wolotsky,
960 F.2d at 1335). In Brentwood, the Supreme Court found state action based on the “pervasive
entwinement,” between the private actor and the state such that there was “no offsetting reason to
see the association’s acts in any other way.” Brentwood, 531 U.S. at 291. Here the relationship
between Metro Parks and White Buffalo was a one-time contractual relationship whereby White
Buffalo provided deer-culling training to Metro Parks rangers. There was no on-going relationship.
Despite the plaintiffs’ argument to the contrary, this is far from “a complete [e]ntwinement of a
private entity with a public entity.” Pls. Br. at 53. The relationship between White Buffalo and
Metro Parks is easily understood as two separate entities entering into a contractual arrangement to
provide and receive a one-time service. Accordingly, DeNicola and White Buffalo are not state
actors pursuant to the nexus test.
d. Conclusion
As a matter of law, the plaintiffs cannot prevail against any of the defendants on a First
Amendment claim stemming from the erasure of the images from the camera. The plaintiffs’ action
against Metro Parks fails because the plaintiffs have not pointed to any custom or policy which
would have played a part in the decision to erase the tapes. The plaintiffs’ action against Rankin and
Simon fails because Rankin and Simon were sued in their official capacities only; because the action
against Metro Parks fails, the action against these two men in their official capacities likewise fails.
The plaintiffs’ action against DeNicola and White Buffalo fails because the plaintiffs cannot show
that these private parties were state actors. We need not reach the underlying merits of the First
Amendment claim, because none of the defendants are liable under 42 U.S.C. § 1983. Accordingly,
we affirm the district court’s grant of summary judgment to all of the defendants with respect to this
aspect of the plaintiffs’ § 1983 claim.
6
DeNicola and White Buffalo argue that the plaintiffs have forfeited any argument under the state-compulsion
test or the nexus test. The plaintiffs sufficiently developed arguments under both tests; thus, the forfeiture argument
lacks merit.
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C. Privacy Protection Act
The district court also granted summary judgment to the defendants on the plaintiffs’ claim
under the Privacy Protection Act, 42 U.S.C. § 2000aa(b) (“PPA”). Under the PPA, “the government,
in connection with the investigation or prosecution of a criminal offense, is prohibited from
searching for or seizing any documentary . . . materials ‘possessed by a person reasonably believed
to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form
of public communication.’” United States v. Any & All Radio Station Transmission Equip., 218 F.3d
543, 551 n.4 (6th Cir. 2000) (quoting 42 U.S.C. § 2000aa(b)).
The district court determined that the statute did not apply in this case because “the rangers
did not search for or seize the cameras in connection with the investigation or prosecution of a
criminal offense.” J.A. at 44 (Opinion at 9). Because the rangers happened upon the cameras while
engaging in the deer-culling operation, the district court concluded that there was no “search.” Id.
Further, the district court determined that there was no “seizure” because the cameras were not taken
down “‘in connection with’ the investigation or prosecution of a criminal offense.” Id. Even though
the plaintiffs were investigated for trespass, the district court stated that “those charges were initiated
after the cameras were discovered, i.e.[,] the cameras were not allegedly seized in connection with
the investigation for trespass.” Id.
Although we disagree with the district court’s analysis, we agree that the defendants were
entitled to summary judgment in their favor on the PPA claim. Although there is a genuine issue
of fact, there is no genuine issue of material fact, and the defendants are entitled to a judgment as
a matter of law.
The plaintiffs argue that the district court erred because there is a fact dispute about when
the criminal investigation began. In the plaintiffs’ view, the criminal investigation started as soon
as the first camera was discovered. In support of this position, the plaintiffs point out that as soon
as the defendants located the first camera, the deer-culling operation was cancelled for the night, and
the defendants instead focused on locating the other cameras. This “investigation” went on for the
rest of the night and part of the next day. The plaintiffs also point out that a Metro Parks employee
filled out a “Report of Investigation,” describing the “[t]ype of [i]ncident” in part as a “[c]riminal
[t]respass,” and stating that the date of the “crime” was February 29, 2004. J.A. at 340 (Report of
Investigation at 1). This is the date on which Simon discovered the first camera and the rangers
began looking for other cameras.
We agree with the plaintiffs that a fact-finder could determine that, as soon as the defendants
discovered the first camera, the defendants commenced a criminal investigation for trespass, and that
therefore, there is a genuine issue of fact as to whether the confiscation of the cameras (except for
the first one discovered) constituted a search and seizure under the PPA. However, we do not find
this disputed fact to be material, because even if a fact-finder arrived at this conclusion, the PPA
contains an exception which would bar the plaintiffs from relief.
If the plaintiffs are correct and the defendants were investigating the plaintiffs for criminal
trespass during the period when the defendants looked for the cameras, then the defendants prevail
as a matter of law because of the “suspect exception” to the PPA. “The goal of the [PPA] is to
protect innocent third parties in possession of documents and papers from governmental intrusions
which would unnecessarily subject their files and papers to search and seizure. Consequently, it is
these persons who may avail themselves of the remedy provided by the statute.” S. Rep. 96-874,
at 15 (1980), as reprinted in 1980 U.S.C.C.A.N. 3950, 3961. In light of its statutory purpose, the
PPA generally allows the government to search for or seize documents when “there is probable
cause to believe that the person possessing such materials has committed or is committing the
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criminal offense to which the materials relate,” 42 U.S.C. § 2000aa(b)(1), and when “the offense
[does] not involve the communication of the materials.” Guest v. Leis, 255 F.3d 325, 341 (6th Cir.
2001) (footnote omitted).
In this case, accepting the plaintiffs’ version of the facts as true, if a fact-finder determined
that the defendants were investigating the plaintiffs for trespass, then the investigation would have
logically commenced as the result of the defendants finding the first camera. The defendants could
suspect trespass in this case because they found the camera installed in a location off established
paths such that plaintiffs would arguably have had to trespass in order to gain access. Thus, the
cameras “relate” to the alleged trespass offense. Further, the offense of trespass does not involve
the communication of the materials themselves. Assuming that the defendants were engaged in a
investigation, there were no “innocent third parties” whose rights were violated by a government
investigation. Both the target of the investigation and the party who was subject to the search and
seizure are one in the same. Accordingly, the “suspect exception” to the PPA would preclude the
plaintiffs from prevailing on this claim.7
With respect to the PPA claim, there is no genuine issue of material fact. If the defendants
were not conducting a criminal investigation when they found and removed the cameras, then the
plaintiffs cannot prevail, because the PPA provision of § 2000aa applies only when there is a
criminal investigation or prosecution. If the defendants were conducting a criminal investigation
when they found and removed the cameras, then the plaintiffs cannot prevail, because the plaintiffs
were the subjects of the criminal investigation for trespass, the cameras related to that investigation,
and the PPA specifically provides for a suspect exception in such circumstances. Accordingly, we
conclude that the district court was correct in granting the defendants’ motions for summary
judgment on the PPA claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order granting summary
judgment to the defendants.
7
We note that White Buffalo and DeNicola are excluded from liability under the PPA because they were not
government actors. See 42 U.S.C. § 2000aa(b).