Bernhard v. City of Ontario
Bernhard v. City of Ontario
Opinion of the Court
MEMORANDUM
Plaintiffs are several officers in the Ontario Police Department. They brought this action under 42 U.S.C. § 1983 against various Defendants, including former Ontario Police Detective Brad Schneider (“Schneider”), alleging that Schneider violated their Fourth Amendment rights by arranging for the warrantless, covert video surveillance of their employee locker room while investigating a reported flashlight theft. On partial summary judgment, the district court held that Schneider had violated the Fourth Amendment and that he was not entitled to qualified immunity. Schneider filed this interlocutory appeal.
The parties are familiar with the facts of this case, and we do not repeat them here. We review de novo the district court’s qualified immunity determination on summary judgment. See Boyd v. Benton County, 374 F.3d 773, 778 (9th Cir. 2004). We have jurisdiction under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511, 580, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), and we affirm.
“The determination of whether a law enforcement officer is entitled to qualified immunity involves a two-step analysis.” Moreno v. Baca, 431 F.3d 633, 638 (9th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). First, we must determine whether the officer’s conduct violated a constitutional right. See id. If we find that the officer violated a constitutional right, we next consider whether that right was clearly established at the time the alleged violation occurred. See id.
We also find that Plaintiffs’ expectation was “one that society is prepared to recognize as reasonable.” Bond, 529 U.S. at 338, 120 S.Ct. 1462 (internal quotation marks omitted). Although there is no “talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable,” O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion), here, the totality of the circumstances weighs in Plaintiffs’ favor. First, Schneider’s intrusion, installing a covert video surveillance camera in the locker room, was severe. See Nerber, 222 F.3d at 603 (finding that the nature of the governmental intrusion is a factor courts should consider, and “[hjidden video surveillance is one of the most intrusive investigative mechanisms available to law enforcement”). Second, the place searched — an employee locker room — was not open to the public and was used for private behavior. See Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (“[T]he extent to which the Fourth Amendment protects people may depend upon where those people are.” (internal quotation marks omitted)). Finally, common sense dictates that reasonable persons, including police officers, do not expect to be secretly videotaped by other police officers while changing clothes in their workplace locker rooms. See O’Connor, 480 U.S. at 715, 107 S.Ct. 1492 (explaining that “our societal understanding that certain areas deserve the most scrupulous protection from government invasion” is a relevant Fourth Amendment factor). Accordingly, we conclude that Plaintiffs’ expectation of privacy was reasonable, and that Schneider’s search was not.
First, several courts, from this Circuit and elsewhere, had recognized prior to 1996 that secret video surveillance is especially intrusive on the privacy interests protected by the Fourth Amendment. See, e.g., United States v. Koyomejian, 970 F.2d 536, 551 (9th Cir. 1992) (Kozinski, J., concurring) (“As every court considering the issue has noted, video surveillance can result in extraordinarily serious intrusions into personal privacy.”); United States v. Taketa, 923 F.2d 665, 677 (9th Cir. 1991) (finding that warrantless video surveillance of an office violated the Fourth Amendment rights of those who were recorded, including a person recorded in an office that was not his); United States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994) (“It is clear that silent video surveillance results ... in a very serious, some say Orwellian, invasion of privacy.”); United States v. Mesa-Rincon, 911 F.2d 1433, 1443 (10th Cir. 1990) (“Because of the invasive nature of video surveillance, the government’s showing of necessity must be very high to justify its use.”); United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (“[Ijndiscriminate video surveillance raises the spectre of the Orwellian state.”). The basic principle articulated in these cases— that covert video surveillance is highly intrusive and justifiable only in rare circumstances — was sufficient to put Schneider on notice that warrantless covert video surveillance of a locker room would violate the Fourth Amendment.
Moreover, in 1991, this Circuit held that the covert video surveillance of an employee in his co-tvorker’s office violated the Fourth Amendment. See Taketa, 923 F.2d at 677. For obvious reasons, the privacy expectation against video surveillance in one’s own locker room is greater than in another’s office. Unlike most offices, employee locker rooms are usually same-sex. They do not have windows and are typically inaccessible to the public. Furthermore, people do not regularly engage in the private behavior of changing clothes, using the bathroom, or showering within their offices. Accordingly, if an office is a place where people have a privacy interest against covert video surveillance, a locker room is also such a place. Thus, our decision in Taketa provided Schneider with fair warning that his actions would violate the Fourth Amendment. See Hope v. Pel-zer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (“[Officials can still be on notice that their conduct violates established law even in novel factual circumstances .... [T]he salient question ... is whether the state of the law ... gave [the defendant] fair warning that [his] alleged treatment ... was unconstitutional.”).
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Schneider argues that the presence of other officers in the locker room belies Plaintiffs’ subjective expectation of privacy. However, as we have previously noted, “[pjrivacy does not require solitude." United States v. Taketa, 923 F.2d 665, 673 (9th Cir. 1991). That Plaintiffs expected to undress in front of their colleagues does not mean that they expected to undress for the camera.
. Schneider argues that his use of video surveillance constituted a "public employer search,” subject to the relaxed "reasonableness” standard articulated by a plurality of the Supreme Court in O’Connor v. Ortega.
Reference
- Full Case Name
- Robert BERNHARD Scott Anderson Criag Pefferle Craig Ansman Will River Jeff Quon Steven Trujillo, Plaintiffs—Appellees v. CITY OF ONTARIO, a Municipal corporation, and City of Ontario Police Department, a Department thereof Lloyd Scharf, individually and as Chief of Ontario Police Department Tony Del Rio, individually and as Captain of Ontario Police Department Brad Schneider, individually and as Sergeant of Ontario Police Department Michael Thompson, Defendants—Appellants
- Cited By
- 9 cases
- Status
- Published