Staged “perp walks” constitute unreasonable search and seizure

From the Fall 2000 issue of The News Media & The Law, page 15.

Staged “perp walks” violate the Fourth Amendment rights of criminal suspects to be free from unreasonable searches and seizures, according to a July 28 ruling by the U.S. Court of Appeals in New York City (2nd Cir.).

The court noted that claims of unreasonable searches and seizures must be judged by assessing the degree to which police actions further the legitimate law enforcement purposes behind the search or seizure. Noting that the walk in question was staged by police for the benefit of a local television cameraman long after the suspect had actually been led into the police station, the court found that there could be no legitimate purpose behind such a staged walk. The fact that the suspect was lawfully in police custody under a proper arrest was irrelevant, because Fourth Amendment protections of reasonableness will still apply to all steps taken after the arrest, the court held.

However, because the police officer who conducted the walk could not have clearly known at the time that it was a violation of a suspect’s Fourth Amendment rights, he was immune from liability under civil rights laws, the court found.

In September 1995, John Lauro, a doorman at a private residence, was caught on a security videotape opening drawers and doors to closets in the apartment that he was asked to watch by a tenant. Nothing was missing when the tenant returned. The tenant sold “Fox 5 News” an exclusive license to broadcast the videotape for $200 and filed a criminal complaint with the police. The police then arrested Lauro and agreed to a request by the Fox station to walk him before their camera. Lauro was handcuffed, walked by a detective outside to an unmarked car, driven around the block, and walked back into the precinct.

The appellate court relied upon Wilson v. Layne, a recent U.S. Supreme Court case which held that media presence during the search of a home could make the search unreasonable. The court held that Wilson did not limit itself to searches of private homes, which the officer had argued.

The court rejected the police officer’s argument that an individual’s interest in his reputation is not in itself a protectible interest for purposes of a civil rights claim, and that the circulation of photographs of an arrested person did not violate a substantive privacy right. The court found that the line of cases relied up by the officer did not concern cases involving a claim of an unreasonable search or seizure, but rather were more general claims of privacy violations.

The court noted that it specifically did not address the question of whether allowing media cameras to record the legitimate moves of a suspect in custody violated the suspect’s rights.

A number of news media organizations, including the Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief arguing that news photography of a matter of public interest cannot constitute a civil rights violation.

In February 1999, a federal District Court in New York City held that the perp walk violated Lauro’s Fourth Amendment rights. The judge found that Lauro suffered humiliation and damage to his personal dignity by being required to participate in a perp walk. The parading of Lauro violated the Constitution’s prohibition against unreasonable seizures and did not further the legitimate purpose of police officers “whose legal obligation is not to provide titillating entertainment to the public but rather to enforce the laws of the state in meaningful and prudent manner,” the court found. “Indeed, it is difficult to imagine what possible law enforcement purpose could be served by taking an individual out of police custody, driving him around the block and bringing him back into the police precinct.”

Neither court was asked to address whether “Fox 5 News” or the Fox Broadcasting Company, which broadcast the walk, also could be held liable for a constitutional violation. However, the district court judge noted that because the news crew appears to have encouraged and participated in Lauro’s walk, it is possible that a claim against the news station could be supported.

According to a New York Times report, police officials said they would halt all future perp walks and would no longer advise news media about suspects’ appearances.