UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Belsito Communications, Inc. d/b/a 1st Responder Newspaper and Brian K. Blackden, Plaintiffs

v. Case No. 10-cv-450-SM Opinion No.

New Hampshire State Trooper James Decker, Defendant

O R D E R

Since approximately 2007, Brian Blackden has been a part-

time freelance photographer. During that period of time, he has

submitted photographs to a number of regional media outlets,

including Belsito Communications, publisher of a website and

newspaper called “1st Responder News.” Together, Blackden and

Belsito Communications bring this action against New Hampshire

State Trooper James Decker, claiming that Trooper Decker violated

their constitutionally protected rights. See generally

.

Trooper Decker moves for summary judgment, asserting that

there are no genuinely disputed material facts and saying he is

entitled to judgment as a matter of law. Plaintiffs object. For

the reasons discussed, Trooper Decker’s motion is granted. Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in

that party’s favor.” Griggs-Ryan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists and

Aerospace Workers v. Winship Green Nursing Ctr.,

(1st Cir. 1996) (citations omitted).

Background

Several years ago, Blackden briefly worked as a

firefighter/EMT for the towns of Kingston and Newton, New

Hampshire. He has not, however, ever been licensed or certified

as a firefighter by the State of New Hampshire, nor has he ever

taken any firefighting training at the state fire academy.

Blackden Deposition (document no. 44-27) at 36. Beginning in

about 2007, Blackden became a part-time freelance photographer.

Over the years, he has submitted photographs to a number of

2 regional news outlets, including Belsito Communications, a

publisher of both online and print media including “1st Responder

News.” Joseph Belsito, president and sole owner of Belsito

Communications, described “1st Responder News” as a “niche

publication that is delivered to the emergency services community

. . . . that reports on local news and incidents within the

states that it serves.” Belsito Deposition (document no. 44-32)

at 9.

In 2009 or 2010, Blackden purchased a vehicle formerly used

as an ambulance by the Town of Derry. Blackden Deposition at

137-38. He modified the vehicle only slightly (to accommodate

some of his equipment), but he did remove the red lenses from the

front of the vehicle, and replaced them with yellow or amber

lenses. Id. at 138. He did not, however, remove the red lenses

from the four lights at the rear of the ambulance. So, other

than a sign above the license plate that read “Fire Department

Photographer,” the rear of the vehicle appeared as it had when it

was in use as an ambulance. Id. at 141-42. Blackden also

maintained a portable radio that was tuned to “all the fire

department radio bands for basically the lower half of the state

and one was a business band radio that certain people in this

area use to communicate.” Id. at 142.

3 Blackden testified that in the early morning of August 25,

2010, he was awakened by an alert tone on his radio, indicating

that there had been an automobile accident on Route 93. Id. at

148. Blackden got up and drove his re-purposed ambulance to the

scene. When he arrived, he parked on the right side of the

highway, at the edge of the pavement. The vehicle that had been

involved in the accident was to Blackden’s left, in the median

strip. At that point, “different rescue vehicles started showing

up and [he] put on [his] gear, walked across the street, stood in

front of the Penacook Rescue vehicle, and just started taking

pictures of the scene.” Id. at 151. Blackden’s “gear” included

a black firefighter’s “turnout coat” with yellow and white

reflective bands, and a black firefighter’s helmet, on which

Blackden had affixed the word “Photographer.” See Id. at 111-12,

116, 151, and 172. Blackden’s attire plainly created some

confusion on the part of emergency responders at the scene. For

example, the Canterbury Fire Chief testified that Blackden

“blended in so well with our rescue crew that I didn’t know who

he was at first. He looked like he was one of Penacook Rescue’s

crew.” Affidavit of Chief Peter Angwin (document no. 44-17) at

para. 7. See also Id. at para. 10 (“He stated that he was with

Penacook or something about Penacook Rescue. I thought he said

he was with Penacook Rescue.”).

4 At some point, Chief Angwin approached Blackden and asked if

he owned the vehicle parked on the right side of the highway.

Blackden told him he did. Because he was concerned that the

location of Blackden’s vehicle posed a potential safety hazard,

the Chief asked him to move it to the same side of the highway as

the rescue vehicles. Blackden complied and drove his re-purposed

ambulance to the left side of the highway, and pulled up behind a

Concord fire truck. Blackden Deposition at 160. As he left the

vehicle, Blackden activated the red “wig-wag” lights on the top

rear of the vehicle. He also activated yellow “arrow” lights, as

well as the vehicle’s emergency (brake light) flashers. Id. at

162.

As a freelance photographer, Blackden had been on the scene

of several automobile accidents and fire emergencies. He was,

therefore, aware of the fact that he should not interfere with

the emergency responders or intrude into the “working scene.”

Id. at 158. So, he typically tried to remain “outside the

perimeter” of any accident scene he was photographing, and

testified that it’s “pretty easy to tell from the way the

[emergency] vehicles are parked” where that perimeter has been

defined. “As long as you’re on the far side of [the emergency

vehicles], that’s the outside of the scene.” Id. at 159. See

also Affidavit of Peter Angwin at para. 15 (“It is common for an

5 incident scene to be delineated by the presence of fire and

emergency vehicles. These vehicles are often used as

obstructions to prevent unauthorized access to an incident scene.

When responding to incidents on the highways, it is our protocol

to set up a safety zone by placing a fire engine or other

apparatus approximately one hundred and fifty (150) feet away

from the incident on the same side of the highway.”).

So, while he may have parked his vehicle “outside the

scene,” (i.e., immediately behind the Concord fire truck),

Blackden plainly entered (and remained inside) that perimeter

while he was taking photographs. See, e.g. Blackden Deposition

at 151 (“I put on my gear, walked across the street, stood in

front of the Penacook Rescue vehicle and just started taking

pictures.”); 156 (same). Chief Angwin testified as follows:

I saw Blackden take a couple of pictures. He was approximately thirty-five feet from the vehicle. Ordinarily, I would not have allowed a member of the press or media to get that close to the vehicle. On the day of the incident, if Blackden was dressed in a shirt and a tie, I would have had him removed from the scene. 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 to me [that is, something about being “with Penacook”].

Blackden did not have authority to be on the scene.

Affidavit of Peter Angwin at paras. 11 and 12.

6 Shortly after he moved his vehicle, Blackden learned that

the driver of the automobile involved in the accident had died.

He approached Chief Angwin and asked whether he wanted Blackden

to take “extraction photos.” Blackden Deposition at 161. After

the Chief responded “no,” Blackden turned around, began walking

back to his vehicle, and was confronted by Trooper Decker.

Trooper Decker had arrived at the accident scene at

approximately 6:00 am, at which point he saw an “ambulance-like”

vehicle parked at the rear of the scene, with its red lights

activated in a “wig-wag” or alternating fashion. See Affidavit

in Support of Search Warrant, Exhibit 1 to Decker Affidavit,

(document no. 44-22) at para. 4. Trooper Decker further

testified as follows:

Mr. Blackden was observed on scene as well [as personnel from Canterbury and Penacook Fire and Rescue]. He was attired in “turn out” gear: A protective firefighting coat and firefighter’s helmet. Additionally, he had a radio/scanner slung across his chest. He was also holding a full-sized digital camera. At the time he was first observed, Blackden was walking away from the crash scene, but still within the active scene.

* * *

Upon being questioned, Blackden identified himself as being “with Penacook Rescue.” He further stated that he was “toned out to the scene by Penacook Rescue.” Blackden asserted that he was there to photograph the scene on behalf of Penacook Rescue, and that he was trying to get “extraction photos.”

7 Id. at paras. 9, 10. After determining that Blackden was not a

member of the rescue team from either Canterbury or Penacook,

Trooper Decker questioned Blackden about his presence at the

scene. And, having been told by Blackden that he was “with

Penacook Rescue,” Trooper Decker asked Blackden for his

credentials. See, e.g., Decker Deposition at 33. According to

Decker, Blackden said that he “left them at home.” Id.

Trooper Decker testified that whenever there is a fatal

automobile accident, a responding State Police Trooper must

contact both the Medical Examiner’s Office and the County

Attorney’s Office (to notify the County Attorney whether there

may be a criminal aspect to the incident). Because someone at

State Police Dispatch had already contacted the Medical

Examiner’s Office, Trooper Decker called the County Attorney’s

Office. He spoke with an Assistant County Attorney, advised her

of the automobile crash and single fatality, and expressed his

opinion that, given the circumstances, the driver had probably

fallen asleep at the wheel. He then informed her that:

[T]here was 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.

Decker Deposition at 37.

8 Trooper Decker informed the Assistant County Attorney that

he was contemplating seizing Blackden’s camera as evidence of

criminal conduct, and sought her opinion. According to Trooper

Decker, he had “reason to believe that Blackden had committed a

number of crimes including impersonation of emergency rescue

personnel, reckless conduct, unlawful stopping/standing/parking

on a restricted access highway, unlawful entry into an emergency

scene, and unauthorized use of emergency lights.” Decker

Affidavit (document no. 44-21) at paras. 4-5. He also testified

that the Assistant County Attorney approved of the seizure of

Blackden’s camera. Id. at 37. Shortly thereafter, Trooper

Decker seized Blackden’s digital camera, believing it contained

evidence of potential criminal conduct which could easily be

destroyed. Id. at 44. He did not, however, seize Blackden’s

turnout gear, scanner/radio, or the re-purposed ambulance. Nor

did he arrest Blackden at that time.

At his deposition, Trooper Decker testified about why he

decided to seize Blackden’s camera as evidence of, among other

things, impersonating an emergency service provider.

[The photos] put him 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.

9 If Mr. 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], okay, and then says on three different occasions he’s “with Penacook Rescue,” contextually that’s impersonation.

Decker Deposition at 45. He explained that he was most concerned

about the photographs on Blackden’s camera because they, unlike

Blackden’s turnout gear, radio, and ambulance, could easily be

destroyed or erased. Id. at 44. See also Decker Affidavit at

para. 6. And, those photos (as well as the metadata recorded

with them) could provide evidence of Blackden’s unauthorized

presence within the accident scene.

As part of his investigation, Trooper Decker contacted Chief

Angwin of Canterbury Fire and Rescue, Chief Oberman of Penacook

Rescue, and Assistant Chief Brechtel of Penacook Rescue, all of

whom confirmed that Blackden was not a member of their squads and

had not received permission to be on the scene of the accident.

See Affidavit of James C. Decker (document no. 44-23) at paras.

18-22. Decker also performed a record check and determined that

Blackden had never been licensed as a firefighter and, although

he once held an EMT license, it had expired in 1987. Decker

Affidavit, Exhibit 1, at para. 17.

10 The following day, Trooper Decker sought and obtained a

search warrant from a Concord District Court Judge authorizing

him to search the digital images on Blackden’s camera.

Blackden’s camera was returned to him the next day. Pursuant to

state law, however, the memory card was retained as evidence of

Blackden’s alleged unlawful conduct. See generally N.H. Rev.

Stat. Ann. (“RSA”) 595-A:6 (“If an officer in the execution of a

search warrant, or by some other authorized method, finds

property or articles he is empowered to take, he shall seize and

safely keep them under the direction of the court or justice so

long as necessary to permit them to be produced or used as

evidence in any trial.”). Parenthetically, the court notes that

Blackden’s memory card was eventually released to his attorney,

with the understanding that she would retain it (in an unaltered

state) until the charges against her client had been resolved.

Blackden was subsequently charged with the following:

unlawfully displaying red emergency lights on his re-purposed

ambulance, in violation of RSA 266:78-c; unlawfully entering a

controlled emergency scene, in violation of the Uniform Fire

Code, § 1.8.5; purposely impersonating emergency medical

personnel, in violation of RSA 153-A:21; and obstruction of

government administration, in violation of RSA 642:1. See

11 Complaint, Exhibit 3 to Decker Affidavit (document no. 44-24).

In November of 2010, a warrant was issued for Blackden’s arrest.

Although the procedural history of the criminal case against

Blackden, as well as the charges actually pursued against him,

are convoluted, it appears that he was convicted in the state

district court of both impersonating emergency medical personnel

and unlawful display of red lights. See Affidavit of Penny Dean,

Esq. (document no. 34-1) at para. 7. It seems that Blackden

appealed only the more serious of those convictions (i.e.,

impersonating emergency personnel) to the state superior court

where, pursuant to New Hampshire law, he sought a trial de novo.1

Although Blackden requested a jury trial, the superior court

denied that request and Blackden was, again, convicted of

impersonating an emergency service provider. He appealed that

conviction to the New Hampshire Supreme Court, which concluded he

was improperly denied his right to a jury trial. Accordingly,

the court vacated Blackden’s impersonation conviction and

remanded the matter for re-trial. See State v. Blackden

(document no. 35-1). On remand, the State nolle prossed the

1 At oral argument, Attorney Dean, counsel for Blackden, clarified this point, noting that Blackden did not appeal his conviction for the red light violation and telling the court, “No, that’s a valid conviction and it’s the only conviction of his.”

12 complaint against Blackden and filed an information charging him

with violating the then recently-revised version of RSA 153-A:21,

which now prohibits unauthorized operation of an emergency

services vehicle. He was acquitted of that charge. As noted

above, however, it appears that his conviction for unlawfully

displaying red emergency lights on his vehicle remained

unaffected.

In their two-count amended complaint, plaintiffs allege

that: (1) Trooper Decker’s warrantless seizure of Blackden’s

digital camera and memory card violated Blackden’s Fourth

Amendment rights; and (2) Trooper Decker’s unlawful conduct

prevented Blackden from exercising his First Amendment right to

publish photographs of the accident scene and amounted to an

unconstitutional “prior restraint” on Blackden’s speech. The

claims advanced by Belsito Communications are entirely derivative

of Blackden’s: Belsito asserts that, by unlawfully seizing

Blackden’s memory card, Trooper Decker infringed upon its own

constitutionally protected right to publish the accident scene

photographs that Blackden had taken.

13 Discussion

I. Belsito Communications Lacks Standing.

Largely for the reasons set forth in defendant’s memoranda,

Belsito Communications lacks standing to pursue First and Fourth

Amendment claims against Trooper Decker for his conduct on the

morning of August 25, 2010. See generally Lujan v. Defenders of

Wildlife,

(1992) (discussing the three

elements of constitutional standing and noting that the party

invoking federal jurisdiction bears the burden of establishing

that it has standing). See also Donahue v. City of Boston,

(1st Cir. 2002). Among other things, Belsito

has failed to demonstrate that Trooper Decker seized any of its

property, nor has it shown any cognizable interest in the

contents of Blackden’s memory card (other than an 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). In short, Belsito

Communication’s claims are too remote to vest it with standing in

this action.

But, the standing issue does not require a detailed

discussion. As noted, even if Belsito could establish legal

standing, its claims are entirely derivative of Blackden’s.

14 And, because Blackden’s constitutional claims fall short on the

merits, so too would Belsito’s.

II. Fourth Amendment - Warrantless Seizure of Blackden’s Camera.

Plaintiffs assert that, “Decker’s seizure of Blackden’s

camera and digital photo card was without justification, probable

cause or other legal process . . . . [and such conduct] violated,

and continues to violate, Blackden’s Fourth Amendment rights

against the seizure and retention of his property without

probable cause.” Amended Complaint at paras. 34-35. The court

disagrees.

The Fourth Amendment guarantees the right to be free from

unreasonable searches and seizures in the absence of a warrant

supported by probable cause. See, e.g., United States v. White,

(1st Cir. 2015). Typically, then, a police

officer may not seize personal property - like a camera - absent

a warrant. See, e.g., United States v. Place,

(1983) (“In the ordinary case, the Court has viewed a seizure of

personal property as per se unreasonable within the meaning of

the Fourth Amendment unless it is accomplished pursuant to a

judicial warrant issued upon probable cause and particularly

describing the items to be seized.”). Here, plaintiffs challenge

both Trooper Decker’s determination that there was probable cause

15 to believe that Blackden had violated the law, and his decision

to seize Blackden’s camera as evidence of that unlawful conduct,

in the absence of a warrant.

A. Probable Cause.

Probable cause exists when the facts and circumstances

within an officer’s knowledge and of which he or she had

reasonably trustworthy information were sufficient to warrant a

prudent person in believing that the suspect had committed or was

committing an offense. See Beck v. Ohio,

(1964).

Probable cause “does not require evidence to prove guilt beyond a

reasonable doubt. . . . Probability is the touchstone. The

probable cause standard does not require the officers’ conclusion

to be ironclad, or even highly probable. Their conclusion that

probable cause exists need only be reasonable.” Forest v.

Pawtucket Police Dep’t,

(1st Cir. 2004)

(citations and internal punctuation omitted).

As the record amply demonstrates, the existence of probable

cause in this case is not a close question. On the morning of

August 25, 2010, Trooper Decker unarguably had probable cause to

believe that Blackden had violated several state laws, including

those prohibiting the unlawful display of red emergency lights,

the impersonation of emergency medical personnel, and the

16 unauthorized entry into a controlled emergency scene. See RSA

153-A:21; RSA 154:7 II; and RSA 266:78-c. See also Uniform Fire

Code NFPA, § 1.8.5 (“Persons, except as authorized by the

incident commander in charge of the emergency, shall not be

permitted” to access a defined accident scene); N.H. Saf-C 6001

(adopting the NFPA Uniform Fire Code). Trooper Decker also had

probable cause to believe that Blackden’s camera contained

evidence of Blackden’s unlawful conduct - that is, the

photographs and related metadata could prove that Blackden was

within the restricted area near the accident, without

authorization. That, in turn, supported the charge that Blackden

was impersonating an emergency medical service provider.

B. Warrantless Seizure of the Camera.

There are, of course, exceptions to the Fourth Amendment’s

warrant requirement. One such exception applies in this case.

Warrantless searches and seizures can be justified by “exigent

circumstances,” which are typically exemplified by “hot pursuit

of a felon, imminent destruction or removal of evidence, the

threatened escape by a suspect, or imminent threat to the life or

safety of the public [or] police officers.” Bilida v. McCleod,

(1st Cir. 2000) (emphasis supplied). As the

Supreme Court has explained:

17 Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.

Place,

(citations omitted).

Here, Trooper Decker’s actions were entirely consistent with

the Fourth Amendment. He reasonably and supportably concluded

that there was probable cause to believe Blackden’s camera

contained evidence of Blackden’s unlawful conduct. He also had

an objectively reasonable belief that such evidence could easily

be destroyed if he did not seize it immediately. See generally

United States v. Rivera,

(7th Cir. 1987) (“The

government must show more than a subjective fear of imminent

destruction of evidence; the fear must be objectively reasonable.

In determining whether the agents reasonably feared imminent

destruction of the evidence, the appropriate inquiry is whether

the facts, as they appeared at the moment of entry, would lead a

reasonable, experienced agent to believe that evidence might be

destroyed before a warrant could be secured.”) (citations

omitted). And, after seizing the camera, Trooper Decker properly

(and promptly) sought a search warrant before examining the

contents of the memory card.

18 In short, Trooper Decker’s challenged conduct did not

violate Blackden’s Fourth Amendment rights. See generally

Illinois v. McArthur,

(2001) (“In various other

circumstances, this Court has upheld temporary restraints where

needed to preserve evidence until police could obtain a warrant.

We have found no case in which this Court has held unlawful a

temporary seizure that was supported by probable cause and was

designed to prevent the loss of evidence while the police

diligently obtained a warrant in a reasonable period of time.”)

(citations omitted). See also Cupp v. Murphy,

(1973) (upholding limited warrantless search and seizure when

officers had probable cause to arrest suspect, but did not

actually arrest him at that time); Wayne R. LaFave, 3 Search and

Seizure § 5.4(b), 195 (4th ed. 2004) (“At a minimum, Cupp should

be applied so as to permit, when there are grounds upon which a

formal arrest could have been made, a more extensive search for

any evidence reasonably believed to be in the possession of the

suspect which might be unavailable later, either because of

future conduct of the suspect or by other means.”).

III. First Amendment - Prior Restraint.

Next, plaintiffs assert that, as a result of Trooper

Decker’s seizure of Blackden’s camera, plaintiffs were “prevented

from publishing and or broadcasting his newsworthy pictures and

19 [have] thereby been prevented from exercising [their] First

Amendment rights to freedom of speech and the press.” Amended

Complaint at paras. 36-37. They go on to claim that, “Decker’s

seizure of Blackden’s camera and digital memory card constituted

a prior restraint of (1) the publication of the images that were

on the card and (2) the taking and publication of any additional

‘on the scene’ images.” Plaintiffs’ memorandum (document no. 45-

1) at 1.2

The precise contours of the First Amendment claim plaintiffs

describe are not entirely clear. Nevertheless, plaintiffs do

identify two opinions of the Court of Appeals for the First

2 Despite plaintiffs’ repeated use of the phrase “prior restraint,” this would not appear to be a case in which the facts support such a claim. See generally Alexander v. United States,

(1993) (“The term ‘prior restraint’ is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.”) (citation and internal punctuation omitted). See also

(Kennedy, J., dissenting) (“In its simple, most blatant form, a prior restraint is a law which requires submission of speech to an official who may grant or deny permission to utter or publish it based upon its contents.”) (emphasis supplied); Advocates for the Arts v. Thomson,

(1st Cir. 1976) (“The plaintiffs’ reliance on the prior restraint doctrine is, in our view, mistaken. The premise of that doctrine is that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content, at least where the expression so restricted is protected ‘speech’ within the First Amendment.”) (citation and internal punctuation omitted) (emphasis supplied). Here, there is no suggestion (or even an allegation) that Trooper Decker’s actions were in any way motivated by the content of Blackden’s speech (i.e., the subject matter of his photographs) and/or a desire to suppress that speech.

20 Circuit which they say support their assertion that Trooper

Decker violated their constitutionally protected right of free

speech: Glik v. Cunniffe,

(1st Cir. 2011) and

Iacobucci v. Boulter,

(1st Cir. 1999). Neither

supports their First Amendment claim. To be sure, the Glik court

acknowledged the breadth of protections afforded by the First

Amendment:

It is firmly established that the First Amendment’s aegis extends further than the text’s proscription on laws “abridging the freedom of speech, or of the press,” and encompasses a range of conduct related to the gathering and dissemination of information. As the Supreme Court has observed, “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

(citations omitted). The court continued by

noting that, “An important corollary to this interest in

protecting the stock of public information is that there is an

undoubted right to gather news from any source by means within

the law.”

(emphasis supplied).

The highlighted language underscores an important fact that

readily distinguishes this case from those upon which plaintiffs

rely: Blackden was not acting within the law while taking the

photographs at issue. To the contrary, Blackden was engaged in

criminal conduct. He was within a restricted area without

21 authorization, dressed in a way that falsely conveyed that he was

a member of one of the responding emergency crews, and he was

operating a vehicle with flashing red emergency lights - all in

violation of New Hampshire law. Trooper Decker unquestionably

had probable cause to believe that Blackden’s conduct was

unlawful, and Blackden unarguably could have been placed under

arrest. That was not the case in either Glik or Iacobucci.

Indeed, in both cases the court explicitly noted that the

arresting officers lacked probable cause to arrest the

plaintiffs. See Glik,

; Iacobucci,

.

Moreover, the plaintiffs in both Iacobucci and Glik were

arrested for conduct which, under the circumstances, was

protected by the First Amendment: Glik was arrested for

publically videotaping police officers (without interfering) as

they arrested a third party, while Iacobucci was arrested for

disorderly conduct and disturbing a public assembly while

videotaping a public meeting. Here, however, Blackden was

stopped and his camera seized based upon conduct unrelated to

(or, at best, only indirectly related to) any constitutionally

protected news-gathering efforts: impersonating emergency rescue

personnel, unlawfully displaying red emergency lights on his

vehicle, and illegally gaining access to a controlled emergency

scene without proper authorization.

22 Finally, and perhaps most importantly, nothing in

plaintiffs’ complaint or their legal memoranda suggests that, by

seizing Blackden’s camera, Trooper Decker intended to suppress

Blackden’s constitutionally protected speech and/or retaliate

against Blackden for his news-gathering activities. See

generally Tatro v. Kervin,

(1st Cir. 1994) (noting

that in a case involving claims that a police officer violated

his First Amendment rights, the plaintiff must demonstrate that

“the officer’s intent or desire to curb the [plaintiff’s]

expression was the determining or motivating factor” for his

actions, “in the sense that the officer would not have [taken

those actions] ‘but for’ that determining factor.”). See also

White v. Union Leader Corp., Civ. No. 00-122-B,

at

*3,

(D.N.H. July 13, 2001) (“In order to prevail on

her claims, [plaintiff] must establish that: (1) she had a First

Amendment right; (2) defendants acted with the intent to prevent

her from exercising that right; (3) defendants did, in fact,

prevent or intimidate her from exercising that right; and (4)

defendants acted under color of state law.”). Blackden, of

course, had no right to impersonate rescue personnel or access

the scene in order to gather news.

On this record, it is plain that Trooper Decker lawfully

seized Blackden’s camera without a warrant as the exigent

23 circumstances made the seizure necessary to preserve potential

evidence of criminal conduct. The record does not support a

claim that Trooper Decker seized the camera in an effort to

suppress publication of content with which he disagreed, to

hinder Blackden’s First Amendment rights, or to retaliate against

Blackden for having engaged in constitutionally protected

conduct.

Stated simply, Blackden had no First Amendment right to

unlawfully enter a controlled emergency scene - even if he

intended to engage in conduct otherwise typically protected by

the First Amendment. And, Trooper Decker’s temporary warrantless

seizure of Blackden’s camera as evidence of Blackden’s unlawful

conduct, pending prompt issuance of a search warrant, did not

violate Blackden’s constitutionally protected rights.3

3 While Trooper Decker certainly “seized” Blackden’s camera and memory card, it is not appropriate to say, as plaintiffs allege, that he “retained” those items. See, e.g., Amended Complaint at paras. 34, 41, and 42. As noted above, Blackden’s camera was returned to him almost immediately after it was seized. While the memory card was not returned to Blackden for a longer period of time, it was not retained by Trooper Decker. Rather, it was held “under the direction of the court” pursuant to state law, as evidence of Blackden’s unlawful conduct. See RSA 595-A:6.

24 IV. Qualified Immunity.

Even if plaintiffs had evidence to support their claims that

their First and/or Fourth Amendment rights had been violated,

Trooper Decker would plainly be entitled to qualified immunity

with regard to both causes of action.

Government officials are shielded from liability for civil

damages unless their official conduct violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct. See Reichle v. Howards,

(2012). To be “clearly established,” a right “must be

sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.”

See

also Brady v. Dill,

(1st Cir. 1999) (“[T]he law

must have defined the right in a quite specific manner, and the

announcement of the rule establishing the right must have been

unambiguous and widespread, such that the unlawfulness of

particular conduct will be apparent ex ante to reasonable public

officials.”).

With regard to Fourth Amendment seizure claims, this court

has previously observed that:

When, as here, a seizure is challenged on grounds that the officers lacked reasonable suspicion (or probable cause), the qualified immunity inquiry does not require

25 the court to decide whether probable cause actually existed, but rather, “whether a reasonable officer could have believed that it did.” Put another way, defendants are protected by qualified immunity “so long as the presence of [probable cause] is at least arguable.” Accordingly, for purposes of the qualified immunity inquiry in this case, the dispositive question is whether it was at least arguable that probable cause existed to believe Manders engaged in disorderly conduct within the meaning of [the New Hampshire Criminal Code].

Byrnes v. City of Manchester,

(D.N.H.

2012) (quoting Eldredge v. Town of Falmouth,

(1st Cir. 2011)). See also Cox v. Hainey,

(1st

Cir. 2004) (“Qualified immunity, however, requires a somewhat

lesser showing. . . . Thus, in the case of a warrantless arrest,

if the presence of probable cause is arguable or subject to

legitimate question, qualified immunity will attach.”). Here,

the existence of probable cause is not just “arguable” or

“subject to legitimate question.” Probable cause plainly existed

to believe that Blackden had violated a variety of New Hampshire

laws and, absent seizure of his camera, evidence of Blackden’s

unlawful conduct could well be destroyed.

Similarly, even if plaintiffs had plausibly alleged that

Trooper Decker acted with an intent to suppress and/or retaliate

against Blackden’s exercise of his right to free speech, and even

if one might conclude that Trooper Decker somehow violated

plaintiffs’ First Amendment rights by seizing the camera in order

26 to preserve evidence of Blackden’s unlawful conduct, still,

Trooper Decker would be entitled to the protections afforded by

qualified immunity. See generally Reichle,

(noting that the Court has never recognized a “specific right to

be free from a retaliatory arrest that is otherwise supported by

probable cause”). Plaintiffs have pointed to no precedent

suggesting that, in August of 2010, it was clearly established

that a warrantless seizure of evidence, supported by probable

cause and subject to the exigent circumstances exception to the

warrant requirement, may nevertheless give rise to a viable First

Amendment retaliation claim. Having failed to do so, their

assertion that Trooper Decker is not entitled to qualified

immunity is without merit. See, e.g., Rivera-Corraliza v.

Morales,

(1st Cir. 2015) (“The clearly-

established step requires plaintiffs to identify controlling

authority or a robust consensus of persuasive authority such that

any reasonable official in the defendant’s position would have

known that the challenged conduct is illegal in the particular

circumstances that he or she faced - then-existing precedent, in

other words, must have placed the statutory or constitutional

question beyond debate.”) (citations and internal punctuation

omitted).

27 Conclusion

For the foregoing reasons, Belsito Communications lacks

standing to pursue First and Fourth Amendment claims arising out

of Trooper Decker’s seizure of Blackden’s camera. But, even if

it did have standing, it is clear that Trooper Decker’s conduct

did not violate Belsito’s or Blackden’s constitutional rights.

His seizure of Blackden’s camera was supported by probable cause

and fell comfortably within the “exigent circumstances” exception

to the warrant requirement. And, contrary to plaintiffs’

assertion, that seizure did not constitute an unconstitutional

“prior restraint” on their ability to publish the accident scene

photographs unlawfully taken by Blackden.

Finally, even if plaintiffs could have established that

Trooper Decker actually violated their First and/or Fourth

Amendment rights, he would still be entitled to the protections

afforded by qualified immunity. Accordingly, defendant’s motion

for summary judgment (document no. 44) is granted.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

28 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 12, 2016

cc: Kevin D. Bloom, Esq. Robert N. Isseks, Esq. Penny S. Dean, Esq. Rebecca W. Ross, Esq. Matthew T. Broadhead, Esq.

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