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 AJR  Columns :    FIRST AMENDMENT WATCH    

From AJR,   June 1998  issue

Will The Ticket To Ride Be Torn Up?   

Some courts are troubled when journalists accompany the police on their rounds.


By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

The "ride-along" is a standard newsgathering technique. Journalists accompany law enforcement officials on their rounds, observing arrests, rescues and searches, providing insight into how the police and federal authorities do their jobs and often giving law enforcement a public relations boost.

But the days of the ride-along may be numbered. Since 1994, some federal appeals courts have seen reporters as interlopers. In cases involving CBS and CNN, the Second and Ninth Circuits have ruled that law enforcement officials violate an individual's Fourth Amendment protection from unreasonable search and seizure when they permit journalists to join them. The Eighth, Sixth and Fourth Circuits have ruled otherwise. The split means that the issue is ripe for review by the U.S. Supreme Court.

The issue arose after federal and state agents searching for Dominic Jerome Wilson, a fugitive considered to be armed and dangerous, burst into the wrong house on an April morning in 1992. The officers, accompanied by a Washington Post reporter and photographer, entered the home of Charles and Geraldine Wilson, Dominic's parents.

The journalists watched while Dominic's father, clad only in undergarments, confronted the authorities. Dominic's mother, wearing a sheer nightgown, came out of the bedroom to find her husband pinned to the floor by a police officer who was holding a gun to his head. The authorities left when it became clear that Dominic was not in the house.

Though the photographer took pictures of the scene, the Post didn't publish them. But the Wilsons sued the law enforcement officials anyway. In December 1995, a federal district court in Rockville, Maryland, rejected the officers' claim that they were simply following U.S. Marshals' Service policy by allowing the journalists to join them. But a three-judge panel of the Fourth Circuit reversed that decision in April 1997, and a year later a bare majority of the full appeals panel agreed.

Five judges, with a sixth concurring, ruled that when the search took place, it was not clear that allowing journalists to enter a private home violated citizens' Fourth Amendment rights. It was reasonable for the officers to conclude that the reporters served a legitimate law enforcement purpose, facilitating accurate reporting and public oversight of their activities, the majority said.

The five dissenting judges, however, said that, even in 1992, allowing third parties not listed in a warrant to accompany officers into a residence violated the Fourth Amendment. Since then, the dissenters added, two federal circuits have held that this rule applies when journalists are the third parties involved.

Echoing language from the Second and Ninth Circuits, the dissenters wrote that "facilitating news coverage" is not a legitimate law enforcement purpose and grimly predicted that "after today, any police officer entering a private home under a search or arrest warrant may bring along any observer as a bystander, even an observer there only to serve his own commercial purposes."

That's an overstatement, because while the majority ruled in favor of the officers (and by implication, the press), it did not endorse their actions. It merely found that, as of April 1992, the law had not clearly declared ride-alongs unconstitutional. Future operations may not enjoy the same protection.

And the thinly veiled contempt for journalists in the dissenting opinion is significant. It accuses the officers of turning "private property into a stage for law enforcement theatricals," solely to serve the "private interests of the media." It contemptuously dismisses the watchdog role of the press, finding the news business to be a purely "commercial" undertaking. And it concludes with the hope that, "given the prevalence of real-life police dramas on television," other federal circuits will "reach a more just conclusion" than the majority in this case.

They may not get the chance. CNN plans to ask the Supreme Court to reverse the Ninth Circuit's ruling that its news crew was so closely involved in a federal raid on a Montana ranch that not only was the search illegal, but the network itself could be sued for violating civil rights, a claim usually permitted to be brought only against the government.

That court, too, ignored any public benefit from the journalists' presence, concluding that it served only the media's "private interests" and the government officials' desire for privacy.

Unless the Supreme Court shares the view that independent media coverage of law enforcement activities is entitled to protection, the ride-along as we know it could become extinct. l