FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Steven J. McAuliffe, U.S. District
N. Isseks for appellant.
Matthew T. Broadhead, Assistant Attorney General, with whom
Joseph A. Foster, New Hampshire Attorney General, was on
brief, for appellees.
Thompson and Barron, Circuit Judges, and McConnell, District
THOMPSON, Circuit Judge.
Blackden is a part-time freelance photographer who for years
has sent photos to a bunch of regional-media outlets,
including Belsito Communications, Inc. (just
"Belsito" from now on). Belsito and Blackden filed
this suit alleging that New Hampshire State Trooper James
Decker violated their constitutional rights when he seized
Blackden's camera at the scene of a vehicle crash in
August 2010. Belsito and Blackden lost on summary judgment.
And they fare no better on appeal: having studied the record
and considered the parties' arguments in light of
applicable law, we conclude, first, that Belsito lacks
standing to pursue its constitutional claim; and, second,
that even if Trooper Decker did violate Blackden's
constitutional rights (a point we need not decide), Blackden
failed to identify clearly-established law in August 2010
placing the illegality of the Trooper's conduct beyond
THE CASE GOT HERE
the early 1980s, Blackden briefly worked as a firefighter-EMT
for the New Hampshire towns of Kingston and Newton - though
he has never been licensed or certified as a firefighter by
the state. Jump forward a few years. In the early to
mid-1990s, Blackden worked as an in-house photographer for
the town of Milton's fire department, a job that involved
taking videos and pictures of fires and accidents for the
department. And since the mid-2000s, he has worked as a
freelance photographer, in addition to owning a company that
sells camping-survival equipment (he gets most of his income
from selling that gear).
freelance photog, Blackden submits photos to a number of
regional news outlets, including Belsito, a publisher of a
website and newspaper called "1st Responder News" -
a "niche publication . . . delivered to the emergency
services community . . . that reports on local news and
incidents within the states that it
serves." Turns out, anyone can send in photos or
stories to the website. All a person has to do is first
create a username and password to access the website and then
submit the material using an online form. Editors typically
review stories submitted by newer "correspondents"
- with "correspondent" defined as anyone who
submits content to the website. But correspondents who have
submitted content "for a while" can skip the review
process. Most of the material Belsito publishes in its print
newspaper comes from items it chooses to take from the
website postings. And Belsito only pays correspondents if it
publishes their content in its newspaper.
began sending photos to Belsito in 2009. He has submitted
over 400. He does not remember how many made it into
Belsito's newspaper. But he does recall that one photo
made the paper's front page. Belsito has never paid him a
dime for any photos. Blackden says that "instead of
money" the company will give him "a trade-off for
advertising." But Belsito denies having that kind of
relationship with him.
or 2010, Blackden bought an ambulance once used by the town
of Derry. He modified the vehicle only slightly, swapping out
the red lenses from the vehicle's front for yellow lenses
(he did not touch the rear red lenses) and adding a sign
above the rear license plate that read "Fire Department
Photographer." Blackden kept a portable radio in the
ambulance tuned to all the fire department radio bands for
essentially the whole southern half of the Granite State. And
he usually kept lots of different gear in the ambulance, like
a black firefighter helmet with the word
"photographer" on it, a black turnout coat, and a
blue vest with the word "photographer" on the back.
The vest also had an ID badge with Blackden's photo and
the words "1st Responder News, Brian K. Blackden, New
Hampshire Region Contributing Correspondent" on it.
on the morning of August 25, 2010, Blackden was awakened by
an alert on his radio indicating that an auto accident had
occurred on Interstate 93. The car had hit a tree in the
median on the left side of the highway. And the Penacook
rescue squad and the Canterbury fire department hurried to
the scene. Dragging himself out of bed, Blackden hopped into
his repurposed ambulance and drove to the scene. When he got
there, he parked on the right side of the highway, at the
edge of the pavement. He put on his "gear, " walked
across the interstate, stood in front of a Penacook fire
department's rescue vehicle, and started taking pictures
of the scene. His "gear" included a
firefighter's helmet with the word
"photographer" on it and a firefighter's
turnout coat. Blackden knew that protocol required that he
get the commanding firefighter's permission before
accessing the accident scene - he could tell where the scene
was based on how the emergency vehicles parked. Anyway, he
did not ask for permission here.
fair to say that Blackden's getup confused some of the
emergency responders at the crash site. For example, the
scene commander, Canterbury Fire Chief Peter Angwin, assumed
that Blackden was with the Penacook rescue team. At some
point, Chief Angwin asked Blackden if that was his vehicle
parked on the right side of the highway. Blackden said
"yes." Convinced that the vehicle's location
posed a potential safety hazard, Chief Angwin asked him to
move it to the same side of the interstate as the rescue
vehicles. Blackden did just that, driving his repurposed
ambulance to the left side of the highway and pulling up
behind a fire truck. As he got out of the ambulance, Blackden
activated the red "wig-wag" lights on the top rear
of his vehicle, the yellow "arrow" lights, and the
emergency (brake light) flashers.
that the driver of the vehicle involved in the accident had
died, Blackden told Chief Angwin that "Penacook Rescue
is leaving[;] I take photographs at a lot of their
scenes" and asked if he would "like extraction
photos, " to which the Chief replied "no."
Chief Angwin later said that Blackden had "stated that
he was with Penacook or something about Penacook Rescue,
" adding that had Blackden been "dressed in a shirt
and a tie, I would have had him removed from the scene"
and stressing that "Blackden was able to get that close
to the vehicle because of the gear that he had on and because
of what he had previously said" about being "with
Penacook." Anyhow, after Chief Angwin said
"no" to his photo-extraction offer, Blackden
started walking back to his ambulance. And that is when he
ran into Trooper Decker.
Trooper Decker got to the crash site, he saw an
"ambulance-like" vehicle parked at the rear of the
scene, with its red lights activated in a "wig-wag"
fashion. Spotting Blackden in the "active scene"
wearing a firefighter's getup, the Trooper questioned
him. According to Trooper Decker, Blackden identified himself
as being "with Penacook Rescue" and said he was
there to photograph the scene on behalf of Penacook Rescue.
After determining that Blackden was not a rescue-team member
of any of the responding fire departments, Trooper Decker
asked him for his firefighter credentials. "You claimed
you're here with Penacook Rescue, " Trooper Decker
recalled saying to Blackden, so "[y]ou must have
something that says you're with Penacook Rescue" -
"[n]obody over there knows you." To this Trooper
Decker recalled Blackden saying that he had "left them
on what had gone down, Trooper Decker believed Blackden had
committed a slew of state-law crimes, including unlawfully
impersonating an emergency rescue provider, unlawfully
entering an emergency scene, and unlawfully using emergency
lights. Trooper Decker also believed Blackden knew he was
under investigation for possible state-law violations. And
because he believed the camera contained evidence of criminal
activity - evidence that easily could be destroyed quickly -
Trooper Decker thought exigent circumstances justified taking
the camera without a warrant. Still, he took the precaution of
running this by a local prosecutor.
there is a fatal auto accident, the responding trooper must
contact the county attorney's office and say whether
"there is a criminal aspect to the crash." So
Trooper Decker grabbed his cellphone, called the county
attorney's office, and spoke with Assistant County
Attorney ("ACA") Susan Venus. Trooper Decker told
her about the auto-crash fatality, saying he thought the
driver had probably fallen asleep at the wheel. But then he
told her about
a subject on scene who was dressed in emergency turnout gear
who had driven a surplus ambulance with active emergency
lights to this scene and parked that vehicle on a restricted
access highway in and amongst the other emergency vehicles
and had gotten out and was in the scene taking photographs.
there "knew who this person was, " the Trooper
added, and "he was not a member of any . . . of the
responding agencies." The Trooper also told ACA Venus
that he was considering seizing Blackden's digital camera
as evidence of criminal conduct. And after filling her in on
the particulars of the situation, Trooper Decker asked ACA
Venus what she thought of his camera-seizure idea. She gave
him the go-ahead.
Trooper Decker took the camera. But he did not take anything
else, like the turnout coat, helmet, or ambulance. Asked why
he had not seized these other things, the Trooper explained
at his deposition that he "was most concerned" with
the camera because it contained easily destroyable evidence
of potential criminal actions. The photos, he added, placed
in the scene. Impersonation is going to be contextual.
It's a contextual offense. If Mr. Blackden chooses to
dress as a firefighter for Halloween and goes to a costume
party, nobody's going to charge him with impersonation.
the Trooper noted, if Blackden "dresses as a firefighter
and drives a surplus ambulance to a fatal crash scene, gets
out, takes photos which can only be taken from certain points
of view" - i.e., within the confines of the
accident scene - "and then says" several times that
"he's with Penacook Rescue, contextually that's
impersonation." Sounding a consistent theme, the Trooper
stressed that the camera mattered the most because he
believed its metadata - which Blackden could erase with just
a push of a button - could help "recreate Blackden's
exact location within the scene relative to the location of
the crash" and so provide evidence of Blackden's
unauthorized accident-scene presence.
Trooper Decker did not arrest Blackden on the spot, though
the parties concede that he had probable cause to do so.
After letting him go, the Trooper confirmed with the lead
emergency responders that Blackden was not a member of their
squads and had not gotten permission to be there. Running a
records check, the Trooper also learned that Blackden had
never been a licensed firefighter and that his EMT license
had expired in the late 1980s.
next day, August 26, Trooper Decker sought and received a
warrant authorizing him to search the digital images on
Blackden's camera. Blackden got his camera back the
following day. But consistent with state law, the police kept
the memory card as evidence of Blackden's alleged
unlawful conduct. See generally N.H. Rev. Stat. Ann.
§ 595-A:6. Blackden later got charged under state law
with: unlawfully displaying red emergency lights on his
repurposed ambulance; unlawfully entering a controlled
emergency scene; purposely impersonating emergency medical
personnel; and obstructing government administration.
Skipping over details not relevant to the issues on appeal,
we see that after his criminal case wended its way through
state court, Blackden stands convicted of the red-light
Invoking 42 U.S.C. § 1983 - a statute that (broadly
speaking) imposes liability on a person acting under state
law who infringes the federally-guaranteed rights of another
- Belsito and Blackden eventually filed this civil suit
against Trooper Decker in New Hampshire federal
court. Their operative complaint alleged that
Trooper Decker's warrantless seizure of Blackden's
digital camera and memory card violated Blackden's Fourth
Amendment rights. They also alleged that Trooper Decker's
actions kept Blackden from exercising his First Amendment
right to publish the accident-scene photos. And they further
alleged that the Trooper's actions violated Belsito's
own constitutionally-protected right to publish
Blackden's accident-scene pics as well.
some discovery, Trooper Decker asked for summary judgment.
Granting the motion, the judge's ruling ran essentially
as follows (we only hit the highlights). Belsito, the judge
said, had no standing to bring any constitutional claim
because (among other things) Belsito did not show that
Trooper Decker took "any of its property" and did
not "show any cognizable interest in the contents of
Blackden's memory card (other than the entirely
speculative claim that if it had been given a timely
opportunity to review Blackden's photographs, it may - or
may not - have exercised its discretion to publish
them)." Convinced the Trooper had probable cause to
believe Blackden had violated the law, the judge found
"exigent circumstances" - specifically the threat
of evidence destruction - justified the warrantless seizure
of Blackden's camera. The judge also saw no First
Amendment violation, given that Blackden had no
constitutional "right to unlawfully enter a controlled
emergency scene - even if he intended to engage in conduct
otherwise typically protected by the First Amendment."
Wrapping up, the judge stressed that Trooper Decker was
qualifiedly immune from suit, even if his actions resulted in
a constitutional violation under current law, because
constitutional standards (as applied to a situation like
this) were unclear at the time of the disputed conduct.
review the judge's grant of summary judgment de
novo, asking whether, taking the facts in the light most
agreeable to Blackden and Belsito, there is no genuine
dispute as to any material fact and Trooper Decker is
entitled to judgment as a matter of law. See, e.g.,
Rivera-Corraliza, 794 F.3d at 214;
Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 89, 92
(1st Cir. 2014); see also Santiago-Ramos v. Autoridad de
Energía Eléctrica de P.R., AEE, a/k/a P.R.
Power Co., 834 F.3d 103, 105-06 (1st Cir. 2016). And we