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The risk of getting too close to the cops.

Generations of American journalists have tried, with varying success, to satisfy the public's seemingly limitless fascination with the work that law enforcement officials do. The appeal years ago of magazines like Police Gazette was based on their vivid (sometimes brutal) true-to-life stories. These days, the police beat on television draw mass audiences with dramatic you-are-there portrayals on shows like "Street Stories" and "Cops."

In the television age, the legal problems that surround "reality-based," tag-along coverage of the police may be getting worse.

There always has been, and remains, an ethical dilemma posed by journalists riding with cops and looking very much like part of the police team. That dilemma deepens as media-savvy law enforcement agencies see a potential to enhance their image with the public by cooperating with an interested--and perhaps sympathetic--press. But potential legal problems are there, too, because reporters can become witnesses and face subpoenas to testify. The legal trouble can get deeper when a camera crew goes along, and gathers revealing pictorial evidence that may have to be turned over in legal proceedings.

Camera crews are going along on police operations increasingly now as television producers realize the bonanza that reality-based police programs represent: They are a low-budget, high-audience phenomenon, routinely a winner on the air and at the bank.

The troubles that can accompany these shows are illustrated by what has happened in recent months to CBS. Moreover, the network's legal difficulties may have just begun.

Under orders from a federal judge, the network had to surrender a videotape of footage a crew took when it accompanied Secret Service agents last year as they searched a Brooklyn apartment for evidence of credit card fraud. That tape, made for "Street Stories," could have become critical evidence at a criminal trial if the apartment occupant had not made a plea bargain with prosecutors. The bargaining power of the accused man, Babatunde Ayeni, was enhanced--and the Secret Service agents' reputation for good police work was diminished--because CBS' cameras showed the agents finding no criminal evidence in the home even after a thorough search.

Next, CBS could face a sizeable claim for damages based on a legal argument that it illegally entered the apartment and invaded the family's privacy.

What is troubling not just to CBS, but to all media organizations that want to accompany police, is that the court has treated CBS as merely an extension of the federal law enforcement team. The court's stance has profound implications, because the press not only might be sued for damages under state laws covering illegal trespass and invasion of privacy; it also may be hit with a claim that it shared the government's liability for damages if a search goes awry and violates the constitutional rights of a family.

U.S. District Judge Jack B. Weinstein, who ordered CBS to turn over the tape, called the network "a participant in the execution of a search warrant"--a distinctly governmental act--and said it got into the home under the imprimatur of an official warrant. Thus, in Weinstein's view, the camera crew was not just a news-gathering bystander, but was intertwined with the Secret Service. That puts the network on the wrong side of a line that a news organization is not supposed to cross.

Weinstein had little difficulty rejecting the network's claim that it has a constitutional right, as a newsgatherer, not to hand over its editorial work-product. That claim of a "newsgatherer's privilege," the judge said, "operates weakly, if at all, in this case." The judge summed up: "CBS must give defendant [Ayeni] the tape which records the images and sounds taken from his home without his permission while illegally within his home." CBS did not appeal and surrendered the tape.

Ayeni's lawyers got the tape for use in defending him on the criminal charges, but they apparently could hang on to it to support future damage claims. The tape shows that CBS got into the home either by a ruse (the camera crew did not say it was from CBS) or entered the home without permission.

The judge's decision has been hailed by one of Ayeni's defenders, Los Angeles attorney Henry H. Rossbacher, as "the significant opinion in the area dealing with the relationship between any government and the press, when the government is using its ability to enter the privacy of the home. It has an enormous effect" on press liability.

Rossbacher has declined to discuss his next move, but there is no indication that Ayeni's lawyers will pass up Judge Weinstein's broad hint that the network may be liable for damages for illegally entering his client's home. A damage suit against the Secret Service also might implicate CBS as a partner in the intrusive adventure. The image of neither the network nor the Secret Service would benefit from that.
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Author:Denniston, Lyle
Publication:American Journalism Review
Article Type:Column
Date:Jun 1, 1993
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