ACLU opposes media presence at police raid.

On Feb. 9,1994, at about 9:30 p.m., Randy Jackson, a reporter for KSDK (Channel 5), along with cameraman Jeff McCollum, entered a house on Maple Avenue in West St. Louis. They were accompanying police officers who were executing a search warrant for drugs and guns. When the two television journalists came out of the house, they not only had tape for the 10 o'clock news, they also had a lawsuit on their hands.

What seemed to be a routine TV-news story has resulted in a dispute within the American Civil Liberties Union, a lawsuit against the St. Louis police department, two different appeals in the federal courts, and a fight over the filing of an amicus brief by the Reporters Committee for Freedom of the Press and the Radio-Television News Directors Association (RTNDA).

The case has also raised profound questions about invasion of privacy versus the people's right to know.

After the raid, two residents at the Maple address, Sandra Parker and her daughter Dana, relatives of the search warrant's target, sued both the police and Channel 5. They charged that although the police had a legal right to be in the home, they had no right to bring along a TV-news crew without permission. They claimed that by bringing the reporters the police violated the Parkers' civil rights.

A lower court threw out the federal claim against Channel 5 on technical grounds, but found against the three police officers for bringing the press along.

Both rulings are being appealed.

"We're very concerned about the fallout from all of this," says Jane Kirtley, executive director of the Reporters Committee. "If the police believe their efforts are going to be undermined by inviting journalists along, they'll stop doing it. And we have anecdotal evidence that they're already doing that."

Kirtley says a similar case, Aveni vs. CBS, has already put legal precedence on a slippery slope toward the banning of television cameras from police activities.

"You can't rule out that the press won't be able to scrutinize the police the way they have in the past," she says.

But Frank Susman, the ACLU lawyer who represents the Parkers, says Kirtley's argument doesn't hold water He says the TV cameras were not there to scrutinize the police but to have sensational tape for their newscast.

"Their intent was strictly commercial," Susman says.

No guns were found, no drugs, no one was arrested, he says.

"The only person they showed on the news was a 16-year-old girl coming down the stairs," Susman says. "If she had been charged with a crime, they wouldn't have shown her. But she was simply a bystander so her picture, taken inside her own home, was all over television."

The story was broadcast Feb. 9, 10, 11 and March 6, 1994.

It may be true, Susman adds, that his lawsuit could make it more difficult for the press to keep an eye on the police, but it still "doesn't give them the right to trespass.

"Trespassing is trespassing," he says.

Unfortunately, it's not that simple. This case, Parker and Parker vs. Boyer, Dell and Risk, has directly pitted the First Amendment against the Fourth Amendment. It is filled with gray areas.

ACLU vs ACLU

After their home was searched, I the Parkers asked the ACLU to represent them in a suit against the police and Channel 5. Susman, an ACLU national board member who is well-known for his strong support of privacy rights, argued that their request should be granted. But the legal-steering committee split 50-50 on whether to take the case. It went to the full board for a decision.

There, Richard Boardman and Mark Sableman, a columnist for The St. Louis Journalism Review and then president of the local ACLU, debated Susman.

"I felt so strongly about the matter," Sableman says, "that I turned the gavel over to a vice president and joined Boardman in arguing that we should not take on any claims against Channel 5."

The emphasis of the ACLU has always been on civil liberties, which generally means the rights of citizens against the government, not against other private citizens.

"I argued that if we sued the press, we would be elevating a nonconstitutional right of privacy over a constitutional right of the press to gather news," Sableman says.

Furthermore, he says, the police had the right to invite the press along, negating their trespassing liabilities.

Susman argued that the First Amendment neither states nor implies a right to gather news and that by entering the Parkers' home without permission the press had trespassed, plain and simple.

The full board voted to accept the case.

But the wrangling didn't end there.

Amicus brief

After the federal district court upheld the claim against the police officers and dismissed the claim against Channel 5, Multimedia, Inc., then Channel 5's owner, tried to file an amicus brief in support of the police's appeal.

Susman successfully fought it, saying that the brief was filed by one of the original litigants in the lower court. The brief was drawn up by Gerald Ortbals and Mary Ann Wymore of Greensfelder, Hemker & Gale, RC., Channel 5's attorneys.

A few weeks later, almost exactly the same brief was filed by the Reporters Committee and RTNDA.

"It's a general practice of mine not to oppose amicus briefs," Susman says. "But here we have the same brief the court dismissed only with a different lawyer's name on it. It borders on fraud."

Kirtley, of the Reporters Committee, strongly disagrees.

"There was nothing nefarious about it," she says. "It would have been a waste of time to draft an entirely new brief when the existing one represented our beliefs. Those cases mentioned in the brief show that the press has a right to be there if the police have a right to be there--if the search warrant is proper."

She says the brief defines the broader issues of the case beyond what the police's lawyers would argue.

As far as the fact that no arrests were made goes, Kirtley says that doesn't mean it wasn't news.

"I think it's very newsworthy to show that the police can be wrong and what kind of tactics they use when no arrests are made," she says.

Tim Larson, Channel 5's news director, says he cannot comment because the case is still in the courts.

Others, however, think it's odd that an ACLU lawyer is arguing against an amicus brief filed in support of the First Amendment.

Constitutional issues

The Fourth Amendment states that people have a right to be secure in their homes from unreasonable searches. Many constitutional lawyers argue the amendment implies that people have a right to privacy under the constitution beyond their privacy rights in common law.

The First Amendment states that lawmakers cannot make laws that abridge the freedom of the press. Many constitutional lawyers argue that the amendment implies that the press is allowed access to government activities beyond the normal rights of the general public because the press is acting on behalf of the public's need to know.

In the Parker case, those two rights bump heads.

Although the case centers around less fundamental laws about trespassing, the essential question here is: Does the press have a right to accompany the police into a person's home and televise pictures of the home and its residents if the police are executing a legal warrant?

Susman says no.

"Exactly what purpose did the press serve filming a juvenile startled by the police coming into her home?" he asks. "Those people were held at gun point and didn't have a chance to tell those cameras to get out."

(One of the ways to nullify the idea of assumed consent when someone steps on your property is to tell the person to leave.)

When asked if it would have made any difference if the reporter was from the print media without a camera, Susman says: "It might have been less intrusive but it's still trespassing."

Kirtley sees it differently.

She is concerned that a juvenile was shown on the evening news without her consent. But to stop the press from reporting on the execution of a search warrant would be a major blow to the public's right to know, Kirtley says.

"Maybe they didn't use the best journalism techniques," she says. "That's not the point. The brief isn't arguing the details of the case, but it does point out the broader principle--the press has a right to be there."

And she adds: "Besides, I wasn't there and I don't think Susman was either. But I do know of people in similar situations who have asked the press to leave."

Kirtley says that the bottom line is that if the police have a right to be there, so do the press. In fact, she says, the press watching the police is one of the best guarantees of the people's right to be secure in their homes.

As SJR goes to press, the amicus brief has been accepted by the court.