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Belsito Communications, Inc. v. Decker

United States Court of Appeals, First Circuit

December 23, 2016

BELSITO COMMUNICATIONS, INC., d/b/a 1st Responder Newspaper;
JAMES DECKER, New Hampshire State Trooper; COLONEL ROBERT L. QUINN, Director of the Division of State Police, New Hampshire Department of Safety, Defendants, Appellees. BRIAN K. BLACKDEN, Plaintiffs, Appellants,


          Robert N. Isseks for appellant.

          Matthew T. Broadhead, Assistant Attorney General, with whom Joseph A. Foster, New Hampshire Attorney General, was on brief, for appellees.

          Before Thompson and Barron, Circuit Judges, and McConnell, District Judge. [*]

          THOMPSON, Circuit Judge.


         Brian 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 debate.


         Back in 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.[2] 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).

         As a 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."[3] 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.

         Blackden 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.

         In 2009 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.

         Early 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.

         It is 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.

         Hearing 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.

         When 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 at home."

         Based 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.[4] Still, he took the precaution of running this by a local prosecutor.

         Whenever 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.

         "[N]obody" 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.

         So 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 Blackden

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.

         But, 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.

         The 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 violation.[5]

          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.[6] 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.

         After 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.


         We 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 can ...

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