Belsito Communications, Inc. v. Decker , 845 F.3d 13 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 16-1130
BELSITO COMMUNICATIONS, INC., d/b/a 1st Responder Newspaper;
BRIAN K. BLACKDEN,
Plaintiffs, Appellants,
v.
JAMES DECKER, New Hampshire State Trooper; COLONEL ROBERT L.
QUINN, Director of the Division of State Police, New Hampshire
Department of Safety,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Thompson and Barron, Circuit Judges,
and McConnell, District Judge.*
Robert N. Isseks for appellant.
Matthew T. Broadhead, Assistant Attorney General, with whom
Joseph A. Foster, New Hampshire Attorney General, was on brief,
for appellees.
___________________
December 23, 2016
___________________
* Of the District of Rhode Island, sitting by designation.
THOMPSON, Circuit Judge.
LEAD-IN
Brian Blackden is a part-time freelance photographer who
for years has sent photos to a bunch of regional-media outlets,
including Belsito Communications, Inc. (just "Belsito" from now
on). Belsito and Blackden filed this suit alleging that New
Hampshire State Trooper James Decker violated their constitutional
rights when he seized Blackden's camera at the scene of a vehicle
crash in August 2010. Belsito and Blackden lost on summary
judgment. And they fare no better on appeal: having studied the
record and considered the parties' arguments in light of applicable
law, we conclude, first, that Belsito lacks standing to pursue its
constitutional claim; and, second, that even if Trooper Decker did
violate Blackden's constitutional rights (a point we need not
decide), Blackden failed to identify clearly-established law in
August 2010 placing the illegality of the Trooper's conduct beyond
debate.
HOW THE CASE GOT HERE1
Back in the early 1980s, Blackden briefly worked as a
firefighter-EMT for the New Hampshire towns of Kingston and Newton
1
We summarize the facts in the light most agreeable to
Blackden and Belsito, the summary-judgment losers. See, e.g.,
Rivera-Corraliza v. Morales, 794 F.3d 208, 210 (1st Cir. 2015).
Trooper Decker's brief points out that the parties (and the judge)
relied on his statement of undisputed facts sketched in his
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— though he has never been licensed or certified as a firefighter
by the state.2 Jump forward a few years. In the early to mid-
1990s, Blackden worked as an in-house photographer for the town of
Milton's fire department, a job that involved taking videos and
pictures of fires and accidents for the department. And since the
mid-2000s, he has worked as a freelance photographer, in addition
to owning a company that sells camping-survival equipment (he gets
most of his income from selling that gear).
As a freelance photog, Blackden submits photos to a
number of regional news outlets, including Belsito, a publisher of
a website and newspaper called "1st Responder News" — a "niche
publication . . . delivered to the emergency services community
. . . that reports on local news and incidents within the states
that it serves."3 Turns out, anyone can send in photos or stories
to the website. All a person has to do is first create a username
and password to access the website and then submit the material
using an online form. Editors typically review stories submitted
summary-judgment memo — plaintiffs' memo opposing summary judgment
"did not contest the facts described" in his summary-judgment
papers, he adds. And plaintiffs' reply brief does not contradict
that point. So we "deem[]" Trooper Decker's fact statement
"admitted." See D. N.H. R. 56.1.
2 All towns mentioned in this opinion are in New Hampshire.
3Blackden has also sent photos to various television stations
and newspapers, like New England Cable News and the Concord
Monitor.
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by newer "correspondents" — with "correspondent" defined as anyone
who submits content to the website. But correspondents who have
submitted content "for a while" can skip the review process. Most
of the material Belsito publishes in its print newspaper comes
from items it chooses to take from the website postings. And
Belsito only pays correspondents if it publishes their content in
its newspaper.
Blackden began sending photos to Belsito in 2009. He
has submitted over 400. He does not remember how many made it
into Belsito's newspaper. But he does recall that one photo made
the paper's front page. Belsito has never paid him a dime for any
photos. Blackden says that "instead of money" the company will
give him "a trade-off for advertising." But Belsito denies having
that kind of relationship with him.
In 2009 or 2010, Blackden bought an ambulance once used
by the town of Derry. He modified the vehicle only slightly,
swapping out the red lenses from the vehicle's front for yellow
lenses (he did not touch the rear red lenses) and adding a sign
above the rear license plate that read "Fire Department
Photographer." Blackden kept a portable radio in the ambulance
tuned to all the fire department radio bands for essentially the
whole southern half of the Granite State. And he usually kept
lots of different gear in the ambulance, like a black firefighter
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helmet with the word "photographer" on it, a black turnout coat,
and a blue vest with the word "photographer" on the back. The
vest also had an ID badge with Blackden's photo and the words "1st
Responder News, Brian K. Blackden, New Hampshire Region
Contributing Correspondent" on it.
Early on the morning of August 25, 2010, Blackden was
awakened by an alert on his radio indicating that an auto accident
had occurred on Interstate 93. The car had hit a tree in the
median on the left side of the highway. And the Penacook rescue
squad and the Canterbury fire department hurried to the scene.
Dragging himself out of bed, Blackden hopped into his repurposed
ambulance and drove to the scene. When he got there, he parked on
the right side of the highway, at the edge of the pavement. He
put on his "gear," walked across the interstate, stood in front of
a Penacook fire department's rescue vehicle, and started taking
pictures of the scene. His "gear" included a firefighter's helmet
with the word "photographer" on it and a firefighter's turnout
coat. Blackden knew that protocol required that he get the
commanding firefighter's permission before accessing the accident
scene — he could tell where the scene was based on how the emergency
vehicles parked. Anyway, he did not ask for permission here.
It is fair to say that Blackden's getup confused some of
the emergency responders at the crash site. For example, the scene
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commander, Canterbury Fire Chief Peter Angwin, assumed that
Blackden was with the Penacook rescue team. At some point, Chief
Angwin asked Blackden if that was his vehicle parked on the right
side of the highway. Blackden said "yes." Convinced that the
vehicle's location posed a potential safety hazard, Chief Angwin
asked him to move it to the same side of the interstate as the
rescue vehicles. Blackden did just that, driving his repurposed
ambulance to the left side of the highway and pulling up behind a
fire truck. As he got out of the ambulance, Blackden activated
the red "wig-wag" lights on the top rear of his vehicle, the yellow
"arrow" lights, and the emergency (brake light) flashers.
Hearing that the driver of the vehicle involved in the
accident had died, Blackden told Chief Angwin that "Penacook Rescue
is leaving[;] I take photographs at a lot of their scenes" and
asked if he would "like extraction photos," to which the Chief
replied "no." Chief Angwin later said that Blackden had "stated
that he was with Penacook or something about Penacook Rescue,"
adding that had Blackden been "dressed in a shirt and a tie, I
would have had him removed from the scene" and stressing that
"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"
about being "with Penacook." Anyhow, after Chief Angwin said "no"
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to his photo-extraction offer, Blackden started walking back to
his ambulance. And that is when he ran into Trooper Decker.
When Trooper Decker got to the crash site, he saw an
"ambulance-like" vehicle parked at the rear of the scene, with its
red lights activated in a "wig-wag" fashion. Spotting Blackden in
the "active scene" wearing a firefighter's getup, the Trooper
questioned him. According to Trooper Decker, Blackden identified
himself as being "with Penacook Rescue" and said he was there to
photograph the scene on behalf of Penacook Rescue. After
determining that Blackden was not a rescue-team member of any of
the responding fire departments, Trooper Decker asked him for his
firefighter credentials. "You claimed you're here with Penacook
Rescue," Trooper Decker recalled saying to Blackden, so "[y]ou
must have something that says you're with Penacook Rescue" —
"[n]obody over there knows you." To this Trooper Decker recalled
Blackden saying that he had "left them at home."
Based on what had gone down, Trooper Decker believed
Blackden had committed a slew of state-law crimes, including
unlawfully impersonating an emergency rescue provider, unlawfully
entering an emergency scene, and unlawfully using emergency
lights. Trooper Decker also believed Blackden knew he was under
investigation for possible state-law violations. And because he
believed the camera contained evidence of criminal activity —
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evidence that easily could be destroyed quickly — Trooper Decker
thought exigent circumstances justified taking the camera without
a warrant.4 Still, he took the precaution of running this by a
local prosecutor.
Whenever there is a fatal auto accident, the responding
trooper must contact the county attorney's office and say whether
"there is a criminal aspect to the crash." So Trooper Decker
grabbed his cellphone, called the county attorney's office, and
spoke with Assistant County Attorney ("ACA") Susan Venus. Trooper
Decker told her about the auto-crash fatality, saying he thought
the driver had probably fallen asleep at the wheel. But then he
told her about
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.
"[N]obody" there "knew who this person was," the Trooper added,
and "he was not a member of any . . . of the responding agencies."
The Trooper also told ACA Venus that he was considering seizing
Blackden's digital camera as evidence of criminal conduct. And
after filling her in on the particulars of the situation, Trooper
4 "Exigent circumstances" is a fancy way of saying "there is
an emergency or other urgent need." United States v. Allman, 336
F.3d 555, 557 (7th Cir. 2003) (Posner, J., for the court).
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Decker asked ACA Venus what she thought of his camera-seizure idea.
She gave him the go-ahead.
So Trooper Decker took the camera. But he did not take
anything else, like the turnout coat, helmet, or ambulance. Asked
why he had not seized these other things, the Trooper explained at
his deposition that he "was most concerned" with the camera because
it contained easily destroyable evidence of potential criminal
actions. The photos, he added, placed Blackden
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.
But, the Trooper noted, if 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 — "and then says" several
times that "he's with Penacook Rescue, contextually that's
impersonation." Sounding a consistent theme, the Trooper stressed
that the camera mattered the most because he believed its metadata
— which Blackden could erase with just a push of a button — could
help "recreate Blackden's exact location within the scene relative
to the location of the crash" and so provide evidence of Blackden's
unauthorized accident-scene presence.
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Trooper Decker did not arrest Blackden on the spot,
though the parties concede that he had probable cause to do so.
After letting him go, the Trooper confirmed with the lead emergency
responders that Blackden was not a member of their squads and had
not gotten permission to be there. Running a records check, the
Trooper also learned that Blackden had never been a licensed
firefighter and that his EMT license had expired in the late 1980s.
The next day, August 26, Trooper Decker sought and
received a warrant authorizing him to search the digital images on
Blackden's camera. Blackden got his camera back the following
day. But consistent with state law, the police kept the memory
card as evidence of Blackden's alleged unlawful conduct. See
generally N.H. Rev. Stat. Ann. § 595-A:6. Blackden later got
charged under state law with: unlawfully displaying red emergency
lights on his repurposed ambulance; unlawfully entering a
controlled emergency scene; purposely impersonating emergency
medical personnel; and obstructing government administration.
Skipping over details not relevant to the issues on appeal, we see
that after his criminal case wended its way through state court,
Blackden stands convicted of the red-light violation.5
5
Belsito and Blackden's lawyer told the district judge in
this case that his client's red-light-violation conviction is "a
valid conviction and it's the only conviction of his" — at least
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Invoking 42 U.S.C. § 1983 — a statute that (broadly
speaking) imposes liability on a person acting under state law who
infringes the federally-guaranteed rights of another — Belsito and
Blackden eventually filed this civil suit against Trooper Decker
in New Hampshire federal court.6 Their operative complaint alleged
that Trooper Decker's warrantless seizure of Blackden's digital
camera and memory card violated Blackden's Fourth Amendment
rights. They also alleged that Trooper Decker's actions kept
Blackden from exercising his First Amendment right to publish the
accident-scene photos. And they further alleged that the Trooper's
actions violated Belsito's own constitutionally-protected right to
publish Blackden's accident-scene pics as well.
After some discovery, Trooper Decker asked for summary
judgment. Granting the motion, the judge's ruling ran essentially
as follows (we only hit the highlights). Belsito, the judge said,
had no standing to bring any constitutional claim because (among
other things) Belsito did not show that Trooper Decker took "any
of its property" and did not "show[] any cognizable interest in
that is what the judge said in his decision, and Belsito and
Blackden's briefs do not contradict that point.
6 Belsito and Blackden also sued Robert Quinn, in his official
capacity as the Director of the Division of State Police, New
Hampshire Department of Public Safety. But the judge granted
Quinn's motion to dismiss. And Belsito and Blackden do not
challenge that ruling. So we say no more about Quinn.
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the contents of Blackden's memory card (other than the 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)." Convinced the Trooper
had probable cause to believe Blackden had violated the law, the
judge found "exigent circumstances" — specifically the threat of
evidence destruction — justified the warrantless seizure of
Blackden's camera. The judge also saw no First Amendment
violation, given that Blackden had no constitutional "right to
unlawfully enter a controlled emergency scene — even if he intended
to engage in conduct otherwise typically protected by the First
Amendment." Wrapping up, the judge stressed that Trooper Decker
was qualifiedly immune from suit, even if his actions resulted in
a constitutional violation under current law, because
constitutional standards (as applied to a situation like this)
were unclear at the time of the disputed conduct.
STANDARD OF REVIEW
We review the judge's grant of summary judgment de novo,
asking whether, taking the facts in the light most agreeable to
Blackden and Belsito, there is no genuine dispute as to any
material fact and Trooper Decker is entitled to judgment as a
matter of law. See, e.g., Rivera-Corraliza, 794 F.3d at 214;
Collazo–Rosado v. Univ. of P.R., 765 F.3d 86, 89, 92 (1st Cir.
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2014); see also Santiago-Ramos v. Autoridad de Energía Eléctrica
de P.R., AEE, a/k/a P.R. Power Co., 834 F.3d 103, 105-06 (1st Cir.
2016). And we can affirm summary judgment on any ground supported
by the record. See, e.g., Houlton Citizens' Coal. v. Town of
Houlton, 175 F.3d 178, 184 (1st Cir. 1999).
ISSUES INVOLVING BELSITO
As they did in the district court, the parties duke it
out over whether Belsito has standing to litigate a First-Amendment
claim against Trooper Decker.7 Belsito comes out swinging,
insisting that Trooper Decker's warrantless seizure of the camera
"prevent[ed]" it from publishing "Blackden's photos" and so gave
rise to an injury in fact fairly traceable to the Trooper's conduct
and redressable by judicial relief. Au contraire, counters Trooper
Decker: the summary-judgment record contains no evidentiary
support for "the claim that Blacken was taking photos on behalf of
Belsito" or that Belsito "had any contractual relationship" with
"or legal interest in Blackden's personal property or photographs"
7
We must address a party's standing to push constitutional
claims even if the claims are easier to resolve than the standing
issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,
99, 101 (1998) (rejecting as "precedent-shattering" the idea that
an "an 'easy' merits question may be decided on the assumption of
jurisdiction," and noting that "[h]ypothetical jurisdiction
produces nothing more than a hypothetical judgment — which comes
to the same thing as an advisory opinion, disapproved by this Court
from the beginning").
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and so Belsito's "claim is far too attenuated to vest it with
standing in this matter." We score this round for Trooper Decker.
Standing Rules
It goes without saying — but we say it anyway — that
federal courts are courts of limited jurisdiction, limited to
deciding certain cases and controversies, for example. See U.S.
Const. art. III, § 2. A key component of the case-or-controversy
requirement is that a suing party demonstrate standing to sue.
And to show standing in this sense, "[t]he party invoking federal
jurisdiction" — here, Belsito — must show the following: (a) "an
injury in fact" that is "concrete and particularized" and "actual
or imminent, not conjectural or hypothetical"; (b) "a causal
connection" — what the high Court occasionally calls
"traceability" — between the injury and the challenged conduct;
and (c) redressability — that the injury will "likely . . . be
redressed by a favorable decision." Lujan v. Defs. of Wildlife,
504 U.S. 555, 560–61 (1992) (quotation marks omitted).
Importantly, the suing party at the summary-judgment stage must
point to specific evidence in the record, not simply rely on "mere
allegations." See id. at 561 (quotations omitted); accord Osediacz
v. City of Cranston, 414 F.3d 136, 139 (1st Cir. 2005) (emphasizing
that "[t]he party seeking to invoke the federal court's
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jurisdiction — normally, the plaintiff — bears the burden of
pleading and proof on each step of the standing pavane").
Applying the Rules
Belsito spends a lot of time talking about how news
gathering enjoys some First-Amendment protection, which is an
uncontroversial statement of the obvious. See Branzburg v. Hayes,
408 U.S. 665, 681 (1972) (noting that "without some protection for
seeking out the news, freedom of the press could be eviscerated").
But as for its injury-in-fact claim, Belsito says (emphasis ours)
that it is this, and this alone: "the 'injury in fact' is the
loss of the opportunity to publish" the August 25 pics Blackden
had snapped "on Belsito's behalf while [he] was acting as [its]
correspondent." The insurmountable problem for Belsito is that it
cites no evidence to back up its theory that Blackden took the
photos on its behalf. And we will not become archeologists,
devoting scarce judge-time to dig through the record in the hopes
of finding something Belsito should have found. See Rodríguez-
Machado v. Shinseki, 700 F.3d 48, 50 (1st Cir. 2012) (per curiam)
(reminding lawyers and litigants — using a colorful quote from a
Seventh-Circuit opinion — that "[j]udges are not like pigs, hunting
for truffles" buried in the record (alteration in original)
(quotation marks omitted)). What Belsito does do — helpfully and
commendably — is concede that
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 Belsito has no contractual relationship with Blackden;
 "the photos on" Blackden's camera's "memory card were not
technically Belsito's";
 "Blackden could have taken the photos for anyone"; and
 Belsito "'may — or may not — have'" published the pics had
Blackden offered them to it (here, Belsito is quoting the
district judge).
True, as Belsito notes, Blackden has submitted hundreds of photos
to Belsito's 1st Responder website since 2009. But Belsito's reply
brief does not dispute Trooper Decker's point that "as a freelance
photographer, Blackden may have sent the [August 25] photographs
to any number of other media outlets without any obligation to
Belsito."
The net result: by failing to provide record support
for its injury-in-fact theory — namely, that Balckden took the
pics on its behalf — Belsito has not carried its burden of
establishing standing. See Osediacz, 414 F.3d at 143.
Enough said about standing.
ISSUES INVOLVING BLACKDEN
On the qualified-immunity front, our combatants battle
over whether Trooper Decker violated clearly-established Fourth-
and First-Amendment law. This round goes to the Trooper too,
however.
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Qualified-Immunity Rules
Qualified immunity protects an officer from suit when a
reasonable decision in the line of duty ends up being a bad guess
— in other words, it shields from liability "all but the plainly
incompetent or those who knowingly violate the law." See Taylor
v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. al–
Kidd, 563 U.S. 731, 743 (2011)); see also Rivera-Corraliza, 794
F.3d at 215. "[R]easonable mistakes," the Supreme Court tells us,
"can be made as to the legal constraints" on officers, and when
that happens, the officer is qualifiedly immune from damages.
Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009); see also
Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009) (stressing
that "qualified immunity, when raised on summary judgment, demands
deference to the reasonable, if mistaken, actions of the" officer).
To avoid a qualified-immunity defense, Blackden must show (1) that
Trooper Decker infracted his federal rights and (2) that these
rights were so clearly established that a reasonable officer should
have known how they applied to the situation at hand. See, e.g.,
City & Cnty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1774 (2015);
Pearson, 555 U.S. at 232; Cortés-Reyes v. Salas-Quintana, 608 F.3d
41, 51-52 (1st Cir. 2010).
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We of course may deal with these qualified-immunity
steps in any order we please. See, e.g., Pearson, 555 U.S. at
236. And today we begin — and end — with the clearly-established
step, which requires Blackden to spotlight "controlling authority"
or "a robust consensus of cases of persuasive authority" (if there
is one) that forbade Trooper Decker from acting as he did.8 See,
e.g., Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quotation
marks omitted). Public officials, our judicial superiors tell us,
need not be legal savants to win a qualified-immunity case. See
Crawford–El v. Britton, 523 U.S. 574, 590 (1998); cf. generally
Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010) (noting that
qualified immunity's aim is to "avoid the chilling effect of
second-guessing where the officers, acting in the heat of events,
made a defensible (albeit imperfect) judgment"). And, they also
tell us, judges must
not . . . define clearly established law at a high level
of generality. The general proposition, for example,
that an unreasonable search or seizure violates the
Fourth Amendment is of little help in determining
8 Please note: because we resolve this case on the clearly-
established ground, we express no view on the constitutionality of
Trooper Decker's conduct, see Barton v. Clancy, 632 F.3d 9, 12, 30
n.20 (1st Cir. 2011) (taking a similar tack in a qualified-immunity
case) — a point so important that we will repeat it again and again
throughout this opinion.
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whether the violative nature of particular conduct is
clearly established.
al–Kidd, 563 U.S. at 742 (citations omitted). Rather, a "more
particularized" inquiry is required. See, e.g., Anderson v.
Creighton, 483 U.S. 635, 640 (1987). That makes sense. Because
"[c]ourts penalize officers for violating bright lines, not" — as
we just said — "for making bad guesses in gray areas," Rivera-
Corraliza, 794 F.3d at 215 (quotation marks omitted), if the
pertinent "legal principles are clearly established only at a level
of generality so high that officials cannot fairly anticipate the
legal consequences of specific actions, then the requisite notice
is lacking," Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir.
2003) (en banc) (opinion of Selya, J.). So "the relevant legal
rights and obligations must be particularized enough that a
reasonable official can be expected to extrapolate from them and
conclude that a certain course of conduct will violate the law."
Id. (citing Saucier, 533 U.S. at 201-02).9
The bottom line, then, is that while Blackden need not
show that the complained-about conduct is the spitting image of
9 A sibling circuit nicely explained why it is critically
important to define the rights in question at the correct level of
generality:
If a court does not carefully define the right, it risks
collapsing the two qualified-immunity inquiries into
one, permitting the constitutional-violation inquiry
always to answer the clearly established inquiry.
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conduct previously deemed unlawful, he must show that the conduct's
unlawfulness was "apparent," given preexisting law. See Anderson,
483 U.S. at 640. What that means is that qualified immunity
protects Trooper Decker unless Blackden can persuade us that
caselaw on the books in August 2010 put the constitutionality of
his actions "beyond debate." See al–Kidd, 563 U.S. at 741; see
also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (emphasizing
that a right is "clearly established" when it is no longer within
the "hazy" area of constitutional issues that might be "reasonably
misapprehend[ed]" by an officer at the scene (quotation marks
omitted)); see generally Morelli, 552 F.3d at 18-19 (discussing
how qualified immunity works in a summary-judgment case).
One more important qualified-immunity nugget to keep in
mind as we go forward: if an officer consulted with a prosecutor
about "the legality of an intended action" — disclosing known info
pertinent to that analysis — then his "reliance on emergent advice
Precedent demands instead that we go down the stairs of
abstraction to a concrete, particularized description of
the right. Though not too far down: just as a court
can generalize too much, it can generalize too little.
If it defeats the qualified-immunity analysis to define
the right too broadly (as the right to be free of
excessive force), it defeats the purpose of § 1983 to
define the right too narrowly (as the right to be free
of needless assaults by left-handed police officers
during Tuesday siestas).
Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 508-09
(6th Cir. 2012).
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might be relevant . . . to the reasonableness of his later conduct"
and so "may help to establish qualified immunity." Cox v. Hainey,
391 F.3d 25, 34 (1st Cir. 2004). As a policy matter, "it makes
eminently good sense, when time and circumstances permit, to
encourage officers to obtain an informed opinion before charging
ahead." Id. But we have cautioned that consultation with "a
friendly prosecutor does not automatically guarantee that
qualified immunity will follow" and that "the officer's reliance
on the prosecutor's advice" must be "objectively reasonable" —
i.e., "[r]eliance" will not forestall liability "if an objectively
reasonable officer would have cause to believe that the
prosecutor's advice was flawed, off point, or otherwise
untrustworthy." Id. at 35.
Applying the Rules
The Fourth-Amendment Claim
Blackden says that Trooper Decker violated his Fourth-
Amendment rights by warrantlessly seizing the camera and memory
card absent exigent circumstances and that the judge reversibly
erred by concluding otherwise. Trooper Decker, unsurprisingly,
takes the exact opposite position. We side with the Trooper.
Blackden is right that the Fourth Amendment guards
against "unreasonable" searches and seizures. Rivera-Corraliza,
794 F.3d at 215 (quoting U.S. Const. amend. IV). He is also right
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that a warrantless search or seizure is "per se unreasonable[]
unless the police can show that it falls within one of a carefully
defined set of exceptions based on the presence of 'exigent
circumstances.'" Coolidge v. New Hampshire, 403 U.S. 443, 474-75
(1971). And he is right that "[t]o show exigent circumstances,
the police must reasonably believe that there is such a compelling
necessity for immediate action as will not brook the delay of
obtaining a warrant," like "when delay would risk the destruction
of evidence" — with our caselaw requiring that the police have
"an objectively reasonable basis" for believing that evidence
destruction "is likely to occur." See United States v. Samboy,
433 F.3d 154, 158 (1st Cir. 2005) (quotation marks omitted); see
also id. (adding that "[p]roof of exigent circumstances should be
supported by particularized, case-specific facts, not simply
generalized suppositions about the behavior of a particular class
of criminal suspects" (quotation marks omitted)); MacDonald v.
Town of Eastham, 745 F.3d 8, 13 n.3 (1st Cir. 2014) (highlighting
some of Samboy's requirements). On this score, and by way of
example, we note Samboy concluded that exigent circumstances
permitted a warrantless entry into a suspected drug dealer's
apartment because what the officers did — "knocking and announcing
their presence" — "gave rise to a reasonable belief" that the
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dealer "probably would have realized" that the law was "closing in
and begun disposing of the evidence." 433 F.3d at 158-59.
But at step two of the qualified-immunity inquiry we
must ask whether Blackden has pinpointed clearly-established law
at the time of the seizure that would have stopped a reasonable
trooper from thinking exigent circumstances existed "in the
situation [he] encountered." See Marrero-Méndez v. Calixto-
Rodríguez, 830 F.3d 38, 46 (1st Cir. 2016). And that situation —
remember — was this:
 Trooper Decker believed Blackden had violated a number of
state laws, giving him probable cause to arrest Blackden —
though the Trooper decided not to do that then and there.
 Blackden knew Trooper Decker was investigating him for
possible criminal violations, or so the Trooper thought.
 Trooper Decker believed the camera and memory card contained
evidence that could help establish Blackden's presence at the
scene, which could help prove Blackden had committed a crime.
 Unlike the turnout coat, helmet, or ambulance, the camera and
memory could be destroyed in a flash without breaking a sweat
— at least that is what the Trooper concluded.
 And Trooper Decker consulted with a prosecutor before taking
the camera and memory card.
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Blackden thinks he has a case — Menotti v. City of Seattle, 409
F.3d 1113 (9th Cir. 2005) — that clearly establishes the illegality
of Trooper Decker's conduct when the underlying events occurred.
But this out-of-circuit decision does nothing of the sort.
An issue in Menotti was whether exigent circumstances
justified an officer's warrantless seizure of a protestor's sign.
Id. at 1153. The court's ruling had three components pertinent to
our case. One, the court said that despite having probable cause
to arrest the protestor for protesting in a restricted area, the
officer made no arrest and so could not seize the sign under the
search-incident-to-arrest exception to the warrant requirement —
an exception justified in part by the need to prevent an arrestee
from destroying evidence. Id. (quoting Knowles v. Iowa, 525 U.S.
113, 116-17 (1998)). Two, because the officer "faced a relatively
calm situation" when he crossed paths with the protester — the
officer was not "immediately engaged in combating violence" — the
court ruled "no exigency requir[ed] seiz[ing]" the sign without a
warrant. Id. at 1153-54 (explaining that "the relatively calm
situation" meant "the circumstances were not exigent when [the
officer] confronted [the protester] and seized the sign"). And
three, the court "did not see how" — on the facts of that case —
the officer "legitimately could be concerned about a need to
preserve evidence of a crime from being destroyed." Id. at 1153.
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Menotti does not help Blackden's cause. Yes, like the
officer there, Trooper Decker seized an item without making an
arrest. But under Menotti, that just means the Trooper cannot
rely on the search-incident-to-arrest exception — an exception he
does not invoke. And in talking about whether violence at the
scene triggered exigent circumstances, Menotti did not address the
type of exigency in our case, described two paragraphs ago — namely
(and we say this again as a matter of helpful repetition) that
Trooper Decker (a) believed Blackden had broken a bunch of state
laws; (b) suspected Blackden knew he had caught the Trooper's eye;
(c) concluded Blackden possessed evidence that could help nail him
criminally; and (d) thought the evidence could be destroyed with
ease before a search warrant could issue. Also, Menotti did not
deal with an officer who had consulted with a prosecutor and so
says nothing about how such a consultation should affect our
qualified-immunity analysis.10 And because Menotti is little like
our case, Blackden has not met his burden of showing that a
reasonable trooper — confronted with the facts here — would have
known beyond debate that he lacked exigent circumstances.
Of course, and to repeat a point made above (but with
slightly different words), "a general constitutional rule already
10Blackden does not argue that Trooper Decker should not have
relied on the prosecutor's approval.
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identified in the decisional law may apply with obvious clarity to
the specific conduct in question, even though the very action in
question has not previously been held unlawful." United States v.
Lanier, 520 U.S. 259, 271 (1997) (emphasis added) (quotation marks
and alterations omitted). But this is a narrow exception, as the
example the Court used shows: although "[t]here has never been
. . . a section 1983 case accusing welfare officials of selling
foster children into slavery," the Court noted, "it does not follow
that if such a case arose, the officials would be immune from
damages," id. (quotation marks omitted) — for simplicity, we refer
to this as the "slavery hypothetical."11 And Blackden makes no
persuasive case that the general Fourth-Amendment principles he
throws around (excerpted in the second paragraph to this section
of this opinion) clearly establish the unlawfulness of Trooper
Decker's conduct, like the general principles at play in the
slavery hypothetical would for the imagined welfare officials.12
11To eliminate any confusion, we wish to emphasize that the
slavery hypothetical discredits the notion that one must have a
case on point, but one need not have a case as easily labeled
"unconstitutional" as the slavery hypothetical to show a violation
of clearly-established law.
12 Still hoping against hope for a reversal on the Fourth-
Amendment ruling, Blackden suggests in a one-sentence footnote to
his opening brief that "[a]ny claim by Decker that the preservation
of images" amounts to exigent circumstances "is a bit suspect,"
since he "did not bother to seize" other "potentially incriminating
evidence," like "Blackden's vehicle or fire apparel." But Blackden
cites no clearly-established caselaw that would have put the
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Let us be crystal clear: Because we resolve Blackden's
Fourth-Amendment claim at the second step of the qualified-
immunity test (as we are free to do), we need not say whether
Trooper Decker's actions were legal — i.e., we do not say whether
exigent circumstances were or were not in play. Nor need we
explore what the precise parameters of the exigent-circumstances
exception are or should be. All we need say is that Blackden has
not met his burden of showing that clearly-established law in
August 2010 precluded a reasonable trooper from believing the
exigent-circumstances exception applied in this situation. And it
is on that basis alone that we affirm the judge's qualified-
immunity ruling on this claim. Cf. generally PDK Labs., Inc. v.
Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts,
J., concurring in part and concurring in judgment) (emphasizing
the raw truism that "if it is not necessary to decide more, it is
necessary not to decide more").
Trooper on notice that his not seizing these other items made the
camera seizure unlawful. Nor does he argue that this was so
obvious a violation that any reasonable officer would have known
about it. See Marrero–Méndez, 830 F.3d at 47. So Blackden's
footnote suggestion does not cut it.
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The First-Amendment Claim
The parties agree — or at least do not dispute — that
 "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," Glik v. Cunniffe, 655 F.3d 78, 82 (1st
Cir. 2011) (quotation marks omitted);
 a critical "corollary to this interest . . . is that there is
an undoubted right to gather news from any source by means
within the law," id. (emphasis added) (quotation marks and
alteration omitted) — remember that emphasized phrase;13 and
 news-gatherers "have no constitutional right of access" to a
restricted area "when the general public is excluded,"
Branzburg, 408 U.S. at 684-85.14
But this Kumbaya-like vibe changes when the parties
discuss the emphasized phrase from Glik — "by means within the
13
See also Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir.
1999) (explaining that because a journalist's "activities were
peaceful, not performed in derogation of any law, and done in the
exercise of his First Amendment rights," a police officer "lacked
the authority" to arrest him for filming officials in the hallway
outside a public meeting of a historic-district commission).
14
See also id. at 684 (adding that "the First Amendment does
not guarantee the press a constitutional right of special access
to information not available to the public generally"); Cohen v.
Cowles Media Co., 501 U.S. 663, 669 (1991) (pointing out "that
generally applicable laws do not offend the First Amendment simply
because their enforcement against the press has incidental effects
- 28 -
law." As Blackden sees it, that Trooper Decker possibly had
probable cause to arrest him hardly means that he (Blackden) acted
unlawfully when taking the pics at issue — a jury, Blackden writes,
could find that he had acted above-board, given that the state
"criminal charges against [him] were ultimately dismissed." And
because that is so, his argument continues, Trooper Decker is not
qualifiedly immune from suit on the First-Amendment claim — despite
what the judge ruled. Nonsense, says Trooper Decker: because
Blackden (among other things) "gained access to the scene by
deceptively operating" a repurposed ambulance "with red flashing
lights" — don't forget, Blackden's attorney admitted below that
his client was convicted of the red-light violation (turn back to
footnote 5) — "Blackden was not acting 'within the law'" and thus
the judge rightly resolved the qualified-immunity defense in his
favor. For our part, we see no reversible error either.
At qualified-immunity's second step, Blackden must show
that clearly-established law in August 2010 would have put Trooper
Decker on clear notice of his potential First-Amendment liability.
And regarding the "by means within the law" theory, Blackden points
us to nothing that would have put a sensible trooper on notice in
on its ability to gather and report the news"); Asociacion de
Periodistas de P.R. v. Mueller, 529 F.3d 52, 58 (1st Cir. 2008)
(emphasizing that "[t]he First Amendment does not grant the press
a special right of access to property beyond the public domain").
- 29 -
August 2010 that even if he (the trooper) had probable cause to
pursue criminal charges against a photographer unauthorizedly in
a restricted area and had talked to a prosecutor, he still could
not have rationally concluded that the photographer had acted
outside the law while shooting the photos.15 More, Blackden gives
us no convincing reason to suppose that the pertinent
constitutional principles were so particularized back then that
Trooper Decker could not have rationally thought he had the legal
wiggle room to do as he did — i.e., he presents nothing to persuade
us that Trooper Decker's actions, like the actions of the welfare
officials in the slavery hypothetical, constitute conduct so
egregious that a reasonable official must have known it was
unconstitutional.
So that there is no confusion about our holding on the
First-Amendment claim: We do not say whether Trooper Decker's
actions did or did not violate Blackden's First-Amendment rights.
Nor do we say what a complete compendium of First-Amendment rights
for news gathers is or should be. We say only that Blackden failed
to identify clearly-established law as of August 2010 showing
15 We repeat again what we said in footnote 10: Blackden
makes no argument that Trooper Decker should not have relied on
the prosecutor's approval.
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beyond debate that Trooper Decker's specific acts violated the
First Amendment. And that is that.
WRAP-UP
For the reasons recorded above, we affirm the judgment
entered below.
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