NBC Sued After Sting Target Commits Suicide

staging (or overly dramatizing) certain events, by paying negligence claim under texas law because "torts which are most difficult to define, outrageousness is determined as a practical distress is "a 'gap-filler' tort never intended to supplant or ! "distinguish between advocacy and news reporting." conducted a news investigation into a subject actor," the amended complaint alleges that the actions of the where the invasion was directed primarily at the deceased, a or enhance a danger that deprives the plaintiff of his or her motion. gavish v. revlon, inc., no. 00 civ. 7291 (shs), 2004 wl sunday, november 5, 2006, shortly after midnight, hansen informed police and that the police (and nbc) created or increased the group acting as judge, jury, and executioner, that was encouraged in 2004, dateline began producing and broadcasting a kaufman county. (id. � 27). he resigned that post in 2002 when purportedly instigated and then placed itself squarely in the a. the facts s.w.3d 66, 73 (tex. app. 2006) (citation omitted), rev'd on other restatement (second) of torts � 46 cmt. d (1965) (hereafter ninth causes of action), under 42 u.s.c. � 1983 for violations of holding that "liability may attach where the state acts to create caldarola, the media merely served in its traditional role as -37- amendment rights were not violated because their privacy -7- -13- curiam); bell atl. corp. v. twombly, 127 s. ct. 1955, 1965 ! the decision to pursue conradt at all, given that whether school counselor and principal created or increased risk (see http://www.spj.org/aboutspj.asp (last visited feb. 22, (id. �� 18-19). over the course of four days, twenty-four men for the reasons set forth more fully below, nbc's rights or privileges. knight v. city of new york, 303 f. supp. plaintiff will ultimately prevail but whether the claimant is arguments. first, it notes that "'a plaintiff may not assert a relative of the deceased has no claim for invasion of privacy. officers conferred with nbc personnel; near the end of the video, that conradt, as he was about to be arrested for soliciting sex on february 20, 2007, nbc aired the episode of "to purpose of bivens action because they collaborated with ordinance, regulation, custom, or usage, of intensity to any arrests, so as to enhance the camera effect." district attorney, and the murphy police chief described conradt local law enforcement with video equipment and cameras. (id. �� request, and warrant did not permit, television camera crew or -15- the suspects first, before the police interviewed them. and in that dateline representatives entered the house, it does questions and allows himself to be interviewed by hansen, who is facts" language from conley v. gibson, 355 u.s. 41, 45-47 (1957), similarly, in hanlon v. berger, the ninth circuit held recovery in those rare instances in which a defendant dramatization[s]" that served no legitimate law enforcement of action), intentional disclosure of private facts (sixth cause warrant for conradt's arrest and then a warrant to search 2006)). second, nbc argues that the alleged conduct was not practiced law for 30 years. (id. � 46). "[f]rom the earliest team arrived, with at least seven more officers, carrying large the end); dvd). third, the amended complaint also asserts a plausible benefit that the defendant, in equity and good conscience, ought visited feb. 22, 2008).9 71). amendment is violated if the media overly intrudes into a law behalf of the individuals who are actually the subject of the of suicide when they suspended special education student who had 2006 wl 3725543, at *4 (e.d.n.y. dec. 18, 2006) (footnote the issue is for the jury to decide. hoffmann-la roche, 144 the assertions that conradt had a "special relationship" with the such as his office or even a courthouse; motion only, i assume the first element is met.4 susceptible to emotional distress, by reason of some physical or "detailed factual allegations." 127 s. ct. at 1964-65. asserting this claim as a means to circumvent impediments to if the facts alleged in the amended complaint are true, ! reporting significant developments to dateline, on fort myers, florida; petaluma, california; long beach, here, although the amended complaint does not allege words. (id. � 44). it filmed the house and property and the deprived of life, liberty, and property without due process of directed at" the plaintiff. doe v. mobile video tapes, inc., 43 ! "be wary of sources offering information for in the fall of 2006, dateline decided to do a segment enforcement for the apprehension and prosecution of individuals answers, http://www.spj.org/ethicsdearspj1.asp (last visited feb. was involved even before any effort was made to arrest conradt. see berger v. hanlon, 129 f.3d 505, 514 (9th cir. 1997)4 mental anguish or sustained an impairment of their social because plaintiff lacks standing to assert these claims in her allegations before the filing of charges, by advocating a cause the county released the videotape to the media after the otherwise injured. (d), (h). dateline has produced "predator" segments in, among long-time prosecutor not suspected of being the face of such knowledge, where it would not be so if he did execution of [the warrants] into television entertainment." allegedly had a much more active role, as it was purportedly police departments. (id. �� 15, 16(c)). in return, local law "active participants in planned activity that transformed the a. rule 12(b)(6) motions (see def. mem. at 7 & n.3). accordingly, for purposes of this plaintiff's contention that this is one of "those rare instances" murphy town council a few days after the death of her brother. curiosity." required for a rico claim. see, e.g., riverwoods chappaqua corp. attached to the dog, causing b severe emotional distress, which remanded on other grounds, 526 u.s. 808 (1999), on remand 188 videotaped the officers as they were being escorted from the doc at this early stage of the litigation, i conclude that warrant into television entertainment." id. at 512. nbc so desires, i will revisit this issue at the summary judgment subjected, any citizen of the united states gravamen of . . . plaintiff's complaint is really another tort" it should be noted that "to catch a predator" has also10 entitled to offer evidence to support the claims.'" id. at 1969 b. application texas follows the restatement (second) of torts in the episode includes an interview by hansen of the the house as well as the arrival of the swat team and its enforcement agrees to participate in the show, permits dateline a finding of outrageousness are arguably present here: nbc was rules of civil procedure, to dismiss the amended complaint for pregnant, shoots a dog in b's presence, knowing b is greatly (2) intentional infliction of emotional distress, (3) negligence, decoy, the conversation with hansen, the arrest outside, the compensatory and punitive damages. and reckless intrusion into law enforcement. rather than merely ! the discussion of strategy and execution of the feb. 23, 2008) ("dateline hasn't so much covered a story as quasi-contract or restitution.'" best buy co. v. barrera, 214 2. intentional infliction of emotional distress plausible." bell atlantic, 127 s. ct. at 1974. and telephone conversations; in one shot, hansen is standing in accuses a student of immoral conduct and threatens public house; although there are legitimate reasons for publicizing arrests, protect him from suicide and that neither it nor the police responded that he did not believe so. (dvd). at times, the (id. � 47). that afternoon, at home, he likely looked out the alleges "'enough facts to state a claim for relief that is 2002); williams v. n.y. city hous. auth., 2007 wl 4215876, at *6. police officers, including the murphy police chief, conferring courts have also recognized a "state-created danger" exception, although many of plaintiff's claims will be dismissed, in dallas. he died within an hour. (id.). upon exiting the house, the men are arrested by the prudent law enforcement practice. in the operations at the sting still requires only a "short and plain statement of the claim defendant acted for 'the very purpose of causing harm or with v. marine midland bank, n.a., 30 f.3d 339, 344 (2d cir. 1994) police. several police officers display guns, force the men to and refers to dateline as a "news program." (def. mem. at 1). this prong of nbc's motion to dismiss is denied. nbc is incorporated in delaware and has its principal memory of a deceased person . . . does not give [his relatives] perverted justice and providing equipment and other consideration forensic examination of conradt's computers might show. employees for grand larceny -- enhancing the transparency of the eventually, however, all of the charges were dropped, in her second cause of action, plaintiff sues on behalf made to re-enter the police station just so that a televison crew allegations are true. amendment (and state law) claims against the media defendants. render plausible plaintiff's claims that (1) the suicide was -19- officers' (and nbc's) actions in this case. based on the is reasonableness, and the reasonableness of professional conduct, http://www.rtnda.org/pages/media_items/ thereof to the deprivation of any rights, predicated on the absence of an express contract"). the restatement also suggests that outrageousness "may footage. (see compl. � 72 (nbc "did push law enforcement promote a legitimate governmental interest is debatable. first, while intentional infliction of emotional previously served for five terms as the district attorney in injuries as well, including, for example, the invasion of news trucks, camera men and television cameras -- all waiting for alleges, in substance, that the warrants should not have been the following facts are drawn principally from the sufficiently "outrageous and extreme" to meet the requirements of plaintiff, a citizen of texas, is the administratrix of plaintiff asserts four claims on her own behalf: the show has "increased public awareness of internet dangers by and negligence (fifth, sixth, seventh, and eighth causes of ! "avoid . . . staged news events." motion. certain facts are drawn from the episode of "to catch a of private facts, intentional infliction of emotional distress, n.6 (d. conn. 1997), aff'd, 133 f.3d 907 (2d cir. 1997)). see news nor law enforcement, but a blurring of the two with a tragic & n.3 (5th cir. 1996) (collecting cases involving claims for 2d 485, 501 (s.d.n.y. 2000) (citing eagleston v. guido, 41 f.3d rather than independently examining a problem, and by rifles, some wearing visored helmets. (dvd). in total, more of the consequences here, an "average member of the community" s.w.3d 40, 49 (tex. app. 2001); see also mineer v. williams, 82 enforcement," that is, to obtain "material for . . . commercial the segment closes with footage of conradt's sister -- ! "avoid conflicts of interest, real or perceived." hansen concludes by stating that there was no the fourth amendment guarantees "[t]he right of the certain national journalism organizations, including7 any state . . . subjects or causes to be 519, 523 (tex. 1975); shell oil co. v. humphrey, 880 s.w.2d 170, similar crimes. id. at 576. results in a miscarriage; a is liable for b's emotional distress the episode is included in the descriptions above. pedophiles to hide under 18 u.s.c. � 2422(b), 72 mo. l. rev. 909, 75,000-acre ranch in montana in connection with an investigation and recorded conversations with the plaintiffs. id. at 509-10. role, as observers," but that they were involved in the planning, a soundstage for law enforcement theatricals."). is an independent basis for a claim of intentional infliction of twyman v. twyman, 855 s.w.2d 619, 621 (tex. 1993) (quoting 4. unjust enrichment outrageous manner. rev. 789, 803 (2007) ("in general, four categories of conduct moore v. charles b. pierce film enters., inc., 589 s.w.2d 489, the search is determined by 'assessing, on the amended complaint, however, alleges far more -- it assuming the suicide were deemed an intervening cause in the question and diversity of citizenship of the parties. 28 u.s.c. enforcement interests in publicizing the arrest of public for arraignment, and the media filmed them as well. id. at 572. in deciding a motion to dismiss, a court may consider held that the plaintiffs could proceed with their fourth under the circumstances, a "special relationship" between conradt murphy police chief in his office after conradt's death. the violations of the racketeer influenced and corrupt organizations video or sound recording), abrogated on other grounds, wilson v. 491 (tex. app. 1979) (privacy is personal right and action for tactics that were unnecessary and unwise, solely to generate more 46(1) cmt. e. examples illustrating this comment include a6 broadcast about plaintiff's son did not give rise to claim for agencies to do what they otherwise would not do.")). for she possessed a liberty or property interest protected by law and creditwatch, inc. v. jackson, 157 s.w.3d 814, 816 (tex. 2005), it nbc's motion is denied to the extent it seeks dismissal under texas law, unjust enrichment is not "an independent cause photographer accompanied law enforcement agents as they attempted -6- nbc was able to obtain photographs of the body, the that plaintiff here is seeking to do just that. (def. mem. at 12 with members of the media. (dvd). he likely saw a swat team, to conradt's rights and the risk of suicide, and that they acted negligence; but a plaintiff is not required to show that the who does not identify himself at first -- is a police officer or the society of professional journalists (the "spj") and the (def. mem. at 17). bridget m. boggess, attempted enticement of a minor: no place for behalf of the estate: (1) violation of conradt's civil rights, door at the rear of the house and entered. (compl. � 38). the3 filming; there is equipment to monitor and record on-line chats than letting him surrender to the police or and search warrants that authorized them to enter the house, the detainee might commit suicide and violated the detainee's an illustration of this comment the example where a, knowing b is -14- 16(b), (f), (g); dvd). the men are taken to the police station power."). including the risk that conradt or someone else would be shot or in the amended complaint, a reasonable jury could find that nbc (1) the defendant acted intentionally or mound pub. schs., 159 f.3d 1253, 1264 (10th cir. 1998) (holding and nbc from liability. the warrants may very well be void with the other, which gives him actual or apparent authority over abiding man was shamed into committing suicide, before he had dramatic footage for a television show. on the facts alleged in actors, police officers, and nbc cast and crew. (dvd). 1942) ("[t]he law does not contemplate . . . defamation of the 510-12. cnn had entered into a written contract with the u.s. foreseeable, (2) the police officers had a duty to take steps to suicide." kelsey v. city of new york, no. 03 civ. 5978 (jfb), emotional distress. -2- "invaded the residential property of the plaintiffs." id. at and filmed emergency medical personnel wheeling conradt out of with television cameras rolling, and his career and life in approximately the first two-thirds of the episode focused on the knowledge that harm will result.'") (quoting hernandez v. keane, permitted to plead "in the alternative," under rule 8(a) of the 37). the murphy police chief and a lieutenant had been watching second, i conclude that reasonable minds could differ potential harm to conradt, by pandering to lurid curiosity, by 42, 68 (1982) (tort is "less concerned with whether people get in november 2006, during the murphy operation, conradt in a position of power, both with its ability to disseminate (2d cir. 2007) (quoting bell atl. corp., 127 s. ct. at 1974). allege state action that created, or substantially contributes to -30- fourteenth amendment claim second. that the police obtain search and arrest warrants for conradt. nbc's arguments are rejected. as an initial matter, liability under [� 1983] if he or she willfully collaborated with -12- (dvd). hansen asked the police for a "favor," saying, "if he (last visited feb. 22, 2008)). at 510-12 (noting that law enforcement obtained warrant without 508, 510. although cnn did not enter the home, it provided one mental condition or peculiarity. the conduct may become 202 (2d cir. 2000), where the second circuit held that a "staged" is plausible. plaintiff may very well be able to show that there the segment on conradt. the court has viewed the dvd of the reasonable jury could find that guidance counselor acted in where "officers in some way had assisted in creating or in producing "to catch a predator," dateline provides nbc) had a duty to take steps to prevent conradt from committing -29- are sufficient to justify permitting plaintiff to proceed with motion is granted in part and denied in part. 3. negligence protected by the doctrine of qualified immunity, as the law was workbook from a district attorneys' conference that he had -16- invasion of privacy "terminates upon the death of the person there, the decoy -- who is an adult actor posing as a young governmental interest. caldarola, 343 f.3d at 573, 575-76 that there was no legitimate law enforcement need for a heavily the other hand, the extent to which the search was necessary to have a little bit of a waiting period" because they were calling sound equipment, including hidden cameras, provided by nbc. ! "recognize that private people have a greater original) (affirming grant of summary judgment dismissing claims while acknowledging the "special relationship" cases where courts ! the decision to arrest conradt at his home rather (compl. � 16(g), (j). indeed, the "mainstay of the show is involved in planning the search, and cnn crew members and cameras organization, dedicated to encouraging the free practice of v. stiles, 456 f.3d 298, 304 (3d cir. 2006) (emphasis in agreed to meet at the house, but he did not appear. (compl. � of soc. servs., 489 u.s. 189, 197 (1989) ("a state's failure to (compl. �� 16(b), (g), (j); dvd). it is apparent that nbc from both the murphy and the terrell police departments were � 41). he then shot himself with a handgun. (id.). matter by community standards. see restatement � 46(1) cmt. d ridicule and loss of his good name. (compl. �� 46, 47, 68, 73, 2210269, at *10 (s.d.n.y. sept. 30, 2004) (quoting citibank, n.a. two others microphones on booms. (id.). vehicles in the street. (dvd). from time to time, the police his interview with dateline after conradt's suicide, the murphy states that it is "the nation's most broad-based journalism than a dozen police officers were on the scene. (id.). 865, 872 (2d cir. 1994)). posing as thirteen-year old boy. (see id. � 28; def. mem. at 2; -26- those circumstances: conradt was an upstanding citizen, a leader other claims, and, in fact, i have held that she may proceed with allegations of the amended complaint, i conclude that a basing subject matter jurisdiction on the existence of a federal processing and interview at the police station, and the guided by self-enforced principles and standards of practice.7 who are caught in a sting that is orchestrated by dateline, non-moving party as true and draw all reasonable inferences in ! the use of more than a dozen officers to arrest a co., 513 s.w.2d 124, 126 (tex. app. 1974) ("a libel upon the unusual that the victim has no other recognized theory of believed to have a gun, and that this was done solely "to �� 1331, 1332. intentional intrusion on the right to be left alone (fifth cause violent or having a gun; previously displayed suicidal tendencies and then took him home police officer must be imputed to nbc. (compl. �� 10, 11). nbc submitted two dvds: one of the entire episode and one with just conradt's suspected criminal activity, urged injury or wrongful death. exxon corp. v. brecheen, 526 s.w.2d concerns about the ethics of "to catch a predator." see, e.g., the tort. (def. mem. at 16-17). both arguments are rejected. predators to a "'sting house.'" (compl. �� 11, 14, 16(a)). "[t]he suicide was reasonably foreseeable." (compl. � 62). the a reasonable jury could find that dateline violated some or all engaged in on-line communications with a decoy who had been who, under color of law of any statute, pj.com and local authorities. as these individuals go to trial, distress, negligence, and unjust enrichment (first, second, and faces of tort law: liability for emotional harm, 90 marq. l. conradt's front door. (id. � 35; see dvd). there was no visited feb. 22, 2008)). failure to state a claim upon which relief may be granted. nbc -31- -34- conradt lived in the town of terrell in kaufman county, indication that conradt knew dateline was involved. upon an individual's privacy and, on the the time of his death. (id. � 26). ! "be judicious about naming criminal suspects brandishing guns, about to invade his home. (compl. �� 37, 38). issued the warrant. (id. �� 31-32). two hours after his arrest, driven around the block, and then moreover, a pleading need not set forth all the facts a pleader police officers spoke directly to the camera. (id.). arise from the actor's knowledge that the other is peculiarly in addition, the court in caldarola took pains to does not dispute this allegation for purposes of this motion. � 31). the judge who signed the search warrant was not informed the initial entry into the house, the first meeting with the the benefit of the bargain (the province of contract law) and "arouse resentment" by an "average member of the community"). in u.s. 825, 835 (1994))). does not permit a plaintiff to sue for intentional infliction of failure to protect individuals in custody from suicide). the (id. � 29). a detective worked all night preparing first a the plaintiff in this case -- testifying at a meeting of the omitted); see also hare v. corinth, miss., 74 f.3d 633, 647, 648 journalistic standards may indeed be relevant to the jury's showing that the pleader is entitled to relief," fed. r. civ. p. sensationalize and enhance the entertainment value" of the of emotional distress by outrageous conduct, 82 colum. l. rev. 4. conradt amended complaint merely alleges that it: -23- statement of the case law, in violation of the fourteenth amendment (id. �� 65, 76). other, the degree to which it is needed for advised that deadline was going to be involved, he would not have rights by responding with deliberate indifference.'" (def. mem. the touchstone of the fourth amendment mental patients) from committing suicide, nbc argues that in officers were motivated at least in part by dateline's of "to catch a predator" in murphy, texas. (id. � 18). city middle of a police operation, pushing the police to engage in "investigation and prosecution of child sexual abuse." (compl. � amended complaint are true, conradt's fourth amendment claim is consequence -- to avoid public humiliation, an otherwise law- and that, indeed, they purportedly pushed the police officers effects, against unreasonable searches and seizures, and no suspects even before detectives interview them. (id. �� 16(b), plausibly allege, in substance, that dateline personnel were officials consented, and dateline set up a sting house in murphy. outrageous in character, and so extreme in degree, as to go when he was not accused of any actual violence and was not building where they were arrested to the cars in which they were in a "tactical squad." (see id.; compl. � 37). there were could film him -- violated his rights. the caldarola court noted capital partners i, l.p., 168 s.w.3d 917, 931 (tex. app. 2005) police practice, solely for the sake of creating a more dramatic the murphy police chief was filmed talking to eight members of a (noting that warrants made no mention of media presence or television and all digital media, as well as journalism educators attorney's office to allow cnn camera crews to accompany law b. application and not negligent -- conduct. whether her claims are more entity may not be both the rico person and the rico enterprise"); first, the amended complaint expressly alleges that dead[] as causing any special damage to another individual, california; and flagler beach, florida. (id. �� 52-59). wyoming v. houghton, 526 u.s. 295, 300 (1999)); accord united purposes of this motion to dismiss, of course, i must assume the amended complaint are proven, a reasonable jury could find that plausibly alleges, in substance, that some aspects of the -17- the house on a gurney and the helicopter flying him away. (dvd). interests. in his community, an assistant district attorney, and a former commits substantial resources to the show. in the february 20th of another and that generally suicide is an intervening cause heard. significantly, two of the circumstances that give rise to 1. the civil rights claim camera, that hansen had shot himself. (dvd). a police officer in this case, conradt's sister, patricia conradt, sues "watchdog" group called perverted justice to identify and arrest house, for example, the police permitted dateline to interview 1979). reportedly said to a dateline producer: "that'll make good tv." colum. journalism rev., jan.-feb. 2007, available at which thus insulated them from liability. (see def. mem. at 10- the intrusion was great -- dateline was camped outside conradt's not clearly established when the events in question occurred. part of the prosecution."); douglas mccollam, the shame game, 8(a)(2), and thus a pleading is not required to set forth s.w.3d at 445. and claims on her own behalf under texas law for intentional section 1983 imposes civil liability upon a party: accord martin v. shawano-gresham sch. dist., 295 f.3d5 armed swat team to extract a 56-year old prosecutor from his home united states v. knights, 534 u.s. 112, 118-19 (2001) (quoting designed to address the gravamen of his complaint,'" and argues (compl. � 42). conradt was taken by a helicopter to a hospital may arise from an abuse by the actor of a position, or a relation case as well, caldarola does not support dismissal here. in intentionally inflicts severe emotional distress in a manner so gun, and death scene, as well as an audiotape of conradt's last states that journalists should: ! caucusing with dateline personnel in the midst of that (1) the defendant acted under color of state law and (2) the cameras. moreover, the amended complaint alleges that dateline members of the swat team opened a locked glass sliding conduct. into dramatizing their actions for the benefit of the television whose privacy is invaded"); gonzales v. times herald printing (id.). the police chief then told hansen that "we're going to complaint, nbc failed to act "ethically" and violated "numerous privacy substantially outweighed the promotion of legitimate as the local district attorney found that none of the cases could plaintiff filed an amended complaint on september 5, hansen confronts the individual and starts asking questions, such -36- cause of action), and negligence (eighth cause of action). to render the claim plausible." iqbal v. hasty, 490 f.3d 143, where they are processed, photographed, and interviewed by a certain other actions also would appear to be deviations from 2008)). the rtnda describes itself as "the world's largest as to what might be on the computers that had been seized as cir. 2003), the amended complaint plausibly asserts that many of working with perverted justice and local police departments, amended complaint failed to allege that the rico defendant -- nbc to law enforcement, by failing to be judicious about publicizing stage, when i will be in a better position to decide whether "the of an individual believed to be poisoning eagles. 129 f.3d at houses by the promise of sex with a minor. (id. � 14). all of these events -- the arrival at the sting house, conradt's civil rights (third cause of action), and for a. section 1983 find that the following decisions and actions of the police visits to the sting house. the remainder focused on conradt and the house. (dvd). after a few moments, the decoy leaves and the 614 f. supp. 1336, 1339 (n.d. tex. 1985) ("unless the plaintiff atrocious, and utterly intolerable in a civilized community.'" arraignment in court -- are captured on camera, with video and nbc's motion is denied to the extent it seeks dismissal conradt's house when they attempted to arrest infliction of pain, or other conduct that shocks the enforcement operation. in wilson v. layne, 526 u.s. 603 (1999), defendant's actions deprived plaintiff of her constitutional house with cameras and crew, waiting to film his arrest for a -28- -21- ("[u]njust enrichment claims are based on quasi-contract and are 19-20). police officers "camped outside" the sting house, and, was." at one point, he reports that three computers were seized and matters subject to judicial notice. see prentice v. apfel, -3- from unreasonable searches and seizures. it alleges further that redress." hoffman-la roche, 144 s.w.3d at 447. (holding that media defendants were governmental actors for police officers then huddled with hansen, in plain view of the 157-58 (2d cir. 2007). the question is whether the pleading accompanied federal agents as they executed a search warrant on a 2008. i dismissed the rico claim from the bench, ruling that the attended a few months earlier. the workbook was titled: have imposed a duty on the state to protect individuals in their 174 (tex. app. 1994); see also deshaney v. winnebago county dep't the amended complaint, for example, a reasonable jury could find grounds, 2007 wl 4216615 (tex. 2007). the doctrine of unjust to videotape arrests in "dramatically-staged scenarios," provides of manifest public concern -- sexual id. at 810. on remand, the ninth circuit dismissed the claims as 34). conradt's house was on a residential street with a large information may cause harm or discomfort." of the claim for intentional infliction of emotional distress.10 do public officials and others who seek power, v. itochu int'l, inc., no. 01 civ. 6007 (gbd), 2003 wl 1797847, in the instant case, the facts alleged in the complaint disregard of conradt's rights, in a manner that overstepped "all possible bounds of decency." twyman v. twyman, 855 s.w.2d at the claims brought by plaintiff on her own behalf. extreme and outrageous as a matter of texas i don't see how dateline can be anything other than an active public servant who had always been an upstanding member of the to increase ratings, dateline seeks "to sensationalize police chief tells dateline that "we never anticipated anything as to whether nbc's conduct was so "outrageous and extreme" as to manufacturing the news rather than merely reporting it. in light the tort was created "for the limited purpose of allowing of action), intentional infliction of emotional distress (seventh the 24 men who did show up were not prosecuted in journalism and stimulating high standards of ethical behavior." execution of the warrants were "inherently fictional 39). observer; it was the county that chose to make the videotape, and amendment due process violation, a plaintiff must show that (1) -32- created a substantial risk of suicide or other harm, and that it he never went to the sting house (notably, even are not well-pleaded allegations'" and will not defeat the one's conscience. as discussed above, based on the allegations (quoting almond v. tarver, 468 f. supp. 2d 886, 904-05 (e.d. tex. such an extent that the police officers deviated from sound disability benefits. the department of corrections ("doc") -24- -35- a. applicable law filmed the initial effort of the three police officers to access of the suicide (at least to some extent) and would survive even 2007, asserting nine causes of action: claims on behalf of the at 9-10). disclosing media's involvement); ayeni v. mottola, 35 f.3d 680, stated a fourth amendment violation. hanlon v. berger, 526 u.s. (2007). in its recent decision in bell atlantic, the supreme berger v. hanlon, 129 f.3d at 512. the amended complaint alleges on appeal, the supreme court agreed that these facts supreme court held that the fourth amendment was violated because stepped into the room and said "i'm not gonna hurt anyone." (id. its favor. bernheim v. litt, 79 f.3d 318, 321 (2d cir. 1996); ! the use of a swat team; and the police, and nbc knew or should have known that conradt was -11- seeking, in substance, to "convert the tort of malicious intentional infliction of emotional distress for her). like this." he states that "everyone took note of who [conradt] heartless, flagrant, and outrageous when the actor proceeds in allegations in those contexts where such amplification is needed on the facts alleged in the amended complaint, 2004). what they otherwise would not do and (b) to protect against such in moving to dismiss the estate's claim for intentional that his "emotional state might be frail" and that the risk of chain of causation. similarly, the manner in which the police with a minor, envisioned being brought out of the house, hands the fifth and sixth causes of action are dismissed camera, as they were happening. defendant nbc universal inc. ("nbc"), alleging that dateline is front yard. (dvd). approximately ten members of the cast and disgrace, id., illus. 6. that the fourth amendment was violated when cnn camera crews nbc's motion is granted to the extent that plaintiff's trading the use of guns to pursue criminals for televised, large- following oral argument of this motion, the court asked1 "sexual predators." apparently unable to face the humiliation of manner that would shock one's conscience. granted, the court must accept the factual allegations of the response, but the officers believed conradt was home. (compl. � required under texas law for a claim of intentional infliction of to nbc as the "chief felony prosecutor" for a neighboring county. teenager supposedly alone at home -- invites the individual into front of perhaps eight television monitors; and there are many deemed "utterly intolerable in a civilized community" and must in moving to dismiss this claim, nbc argues principally estate under texas law for intentional infliction of emotional in connection with that investigation, nbc -4- rtnda instructs journalists to "[f]ight the urge to become a public humiliation" of the individuals who are lured to the sting under texas law, to recover damages for intentional were in terrell. (id. � 34). dateline was present, filming, as handcuffed behind his back, escorted by armed police officers, suicide or exhibited any sign of a suicidal tendency. (def. mem. scale internet sting operations to track down sex offenders." 1985). i reserved decision as to the remaining claims. immediately tries to run out of the house. surprisingly, 685 (2d cir. 1994) (noting search warrant affidavit did not 42 u.s.c. � 1983; see williams v. n.y. city hous. auth., no. 05 3. the sting in murphy, texas involvement: adopting in its place a "plausibility" requirement. bell atl. police brought the media into a home during the execution of a 98 (2d cir. 1983) ("a private individual may be subject to -39- of the estate for negligence, arguing that nbc owed conradt a http://www.cjr.org/ feature/the_ shame_game.php (last visited -18- as an assistant prosecutor in neighboring rockwell county and had inflicts emotional harm: [the first is] abusing a position of two-fold duty "(a) not to push law enforcement agencies to do argues, among other things, that it owed conradt no duty to the "father" of the decoy. at some point, hansen will announce:2 police chief was willing to speculate on camera as to what a juncture, her claims clearly sound in intentional or reckless -- involved in planning the execution of the warrants, and dateline corp., 127 s. ct. at 1969. the court did not establish a apparent that most of these individuals believe that hansen -- on a motion to dismiss pursuant to fed. r. civ. p. distress was severe. conradt committed suicide. (id. � 49). its alleged conduct was not "extreme and outrageous" in the sense constitution and law. extreme and outrageous, but if reasonable minds can differ, then in this action, she will have to prove reckless or intentional interests were outweighed by the county's legitimate law that the lauro court held that the staged perp walk was "an (2) she was deprived of that interest without due process. formulated codes of ethics or "canons of journalism." the spj 1. the parties bennett v. united states trust co., 770 f.2d 308, 315 (2d cir. actions caused the plaintiff emotional b. the estate's claims f. supp. 2d 702, 707 (e.d. ky. 2000) (statements made in at 8 (quoting hanrahan v. city of norwich, 959 f. supp. 118, 122 by 3 p.m., hansen was outside conradt's house. (id. � at some point, two officers, one with his gun drawn, 12(b)(6) motions to dismiss. second, i address the claims released copies of the videotape to the media. in addition, doc individuals. (id. � 21). radio-television news directors association (the "rtnda"), have armed with a transcript of the on-line chat. (id.). it is 2. to catch a predator the murphy police that conradt had contacted a decoy online and ! "show good taste. avoid pandering to lurid of action, but rather 'belongs to the measure of damages known as profession," which includes "electronic journalists in radio, infliction of emotional distress, nbc makes two principal report on law enforcement's efforts to combat crime, nbc first, i discuss the legal standards applicable to rule host of the show, nbc correspondent chris hansen, appears. instead requir[ed] a flexible 'plausibility standard,' which f.3d 1155 (9th cir. 1999); dwares v. city of n.y., 985 f.2d 94, -27- 11. the court contrasted the case with cases where media played as to the first element, although nbc is not a "state wrongful acts. see, e.g., ritzmann v. weekly world news, inc., corrections officers were arrested for fraud in connection with "universal standard of heightened fact pleading, but . . . arrest. a reasonable jury could find that by doing so, nbc government officials in execution of search warrant), vacated and -8- individuals involved, including perverted justice personnel, that dateline was involved, and he has stated that had he been 76). the claims for damages for these injuries are independent intends to prove, for the inquiry remains "'not whether a 12(b)(6) for failure to state a claim upon which relief can be increasing the danger [of violence] to the victim [from private in planned activity that transformed the execution of a search under arrest?" (dvd). (quoting lauro, 219 f.3d at 213). here, the amended complaint the seventh cause of action is dismissed, for texas law someone was inside because a television and computer were on. corrections officers had already been arrested. here, dateline ("by virtue of the distinctiveness requirement, a corporate here, the issuance of the warrants does not insulate the officers unenforceable. in other words, the plaintiff has provided a created one. in the process it has further compromised the people to be secure in their persons, houses, papers, and c. plaintiff's individual claims this motion followed. i heard argument on february 13, personnel trespassed onto conradt's property. (the "estate"), she seeks in excess of $100 million in that works with local police departments and an on-line days, [he] had chosen a good name rather than great riches." nationwide television "news-magazine," dateline. (id. � 13). a police operation in plain view of conradt's whether conradt had a gun in the house, and the sergeant infliction of emotional distress, a plaintiff must prove that: protect conradt from taking his own life, and (3) the police inside the house, there lay, near conradt's computer, a3 a police officer walked over to hansen and reported, on could find that nbc abused its power -- the power of the press inherently fictional dramatization" that served no legitimate (ii) the fourteenth amendment however, in many instances the individual answers hansen's suggests that "extreme and outrageous character of the conduct predators targeting minors via the internet. any right of action, although they may have thereby suffered that breaks the chain of causation in a civil action for personal to sustain a � 1983 claim based on a fourteenth violated conradt's rights under the fourth amendment to be free (quoting scheuer v. rhodes, 416 u.s. 232, 236 (1974)). hence, violation of the fourth amendment (compl. � 64), and (2) he was custody (for example, prisoners and involuntarily committed nbc steadfastly denies these allegations, but for beyond all possible bounds of decency, and to be regarded as with the promise of sex, individuals suspected of being sexual -10- constitute a violation of the due process clause"). moreover, own name. under texas law, claims for injury to reputation and 909 (2007). claim for intentional infliction of emotional distress merely suicide is certainly plausible. there very well may have been, emotional distress unless the defendant's conduct is "about or the other, or power to affect his interests." restatement � set forth above with respect to the estate's negligence claim. support a finding of outrage when the defendant intentionally actors]"). danger [than] they otherwise would have been") (quoting reed v. and miscarriage. id., illus. 11. or other person within the jurisdiction civ. 2750 (dc), 2007 wl 4215876, at *4 (s.d.n.y. nov. 30, 2007). -33- series of segments entitled "to catch a predator." (id. � 14). conclude that the amended complaint alleges sufficient facts to enforcement need, but by dateline's desire for more sensational ruins. under these circumstances, a reasonable jury could find and enhance the entertainment value" of the confrontations, and an official state actor in the deprivation of the federal act, 18 u.s.c. � 1962 et seq. ("rico") (fourth cause of action); already at least five officers present, and eventually the swat numerous ethical principles. for instance, spj's code of ethics criminal justice system and deterring others from committing by an out-of-control reality show." although these interests are important in the instant obligates a pleader to amplify a claim with some factual threatens arrest, id., illus. 5, and a school principal who conradt's home. both warrants were signed by local judges. (id. that district court properly denied summary judgment in suicide nbc moves, pursuant to rule 12(b)(6) of the federal because of his inability to prevail on another theory of relief that plaintiff is entitled to some latitude in pleading at this the allegations of the amended complaint implicate amended complaint and are assumed to be true for purposes of this favors or money; avoid bidding for news." for dramatic effect, for the sake of a more exciting television 1996) ("[d]eliberate indifference involves unnecessary and wanton (i) the fourth amendment been the subject of praise. some have argued, for example, that plausible on its face.'" patane v. clark, 508 f.3d 106, 111-12 808, 809-10 (1999). the court vacated and remanded, however, 22, 2008) ("dateline finds itself in a financial arrangement with and that the search violated the fourth amendment. id. at 510- indignities, threats, annoyances, petty oppressions, or other federal rules of civil procedure, and she is doing so here. if show. predator" that aired on dateline on february 20, 2007.1 or affirmation." u.s. const. amend. iv. the supreme court has second, plaintiff's contention that the officers (and responds: "unfortunately, and i'm just surmising or guessing programming," the court held that the intrusion was unreasonable injury. see hathaway v. coughlin, 99 f.3d 550, 553 (2d cir. contentions, unsupported characterizations, and legal conclusions here, too, there's going to be something that's way worse than the restatement provides some guidelines. comment e the one hand, the degree to which it intrudes infliction of emotional distress, they do not properly sound in plaintiff commenced this action on july 23, 2007, � 40). they saw conradt standing at the end of a hallway. he the creation of, a danger or renders citizens more vulnerable to the right to care and protection, including protection from fourteenth amendment right to substantive due process." sanford as the court acknowledged in bell atlantic, rule 8(a) with the rico claim dismissed, four claims remain on (dvd). the ground face down, and then handcuff them. (see compl. � trespassed onto conradt's property. (id. �� 35, 36). officers governmental interests. brought on behalf of student who committed suicide, where no negligence. see, e.g., smith v. sneed, 938 s.w.2d 181, 185 (tex. enrichment claim against the estate. the claim is dismissed, for nbc argues that, even assuming the allegations of the professional organization exclusively serving the electronic news defining "extreme and outrageous conduct" as conduct "'so extreme and outrageous; (3) the defendant's caldarola v. county of westchester, 343 f.3d 570 (2d cir. 2003), 701, 708 (7th cir. 2002) (under "state-created danger" exception, that under texas law a party has no duty to prevent the suicide of san antonio, 43 f.3d 973, 980 (5th cir. 1995) (dismissing during their legal life together"); john j. kircher, the four emotional distress. moreover, i do not believe plaintiff is the attempt to arrest him at his home. much of what appears in decency and the limits of evenhandedness: intentional infliction in the circumstances alleged in the amended complaint, district attorney. (id. �� 27, 46). he was 56 years old and had because the judges were not fully apprised (if at all) of prosecution to one of negligent prosecution"); campbell v. city to be transported to the police station for booking. doc in its "guidelines for covering law enforcement," the8 to "nudge[] [its] claims across the line from conceivable to enrichment usually applies to a situation where there is a at *1 (s.d.n.y. apr. 4, 2003)). need can justify intrusion into anyone's privacy." catch a predator" featuring the murphy sting operation. won't come to us, we'll go to him." (compl. � 28). he insisted of the agents with a microphone, and that agent entered the home and a detective approached the house. one officer knocked on journalistic standards." (compl. � 16). the reporter-subject right to control information about themselves than a sergeant who had known conradt for twenty years was asked for dramatic effect and to make a more sensational television where he was alone with firearms); dwares v. city of new york, protect an individual against private violence simply does not example, on the circumstances presented, a reasonable jury could "i'm chris hansen with dateline nbc." (compl. �� 14, 16(b), (h); (id.). he then practiced as a defense attorney before becoming a under these circumstances, it is entirely plausible recklessly; (2) the defendant's conduct was app. 1997) (negligence claim dismissed where plaintiff was because the media was present for "a major purpose other than law responsible for her brother's death and the harm to his duplicate existing statutory or common-law remedies," national television show, as a swat team entered his home. on approach to the house. nbc recorded the sound of the gun shot perp walk -- the defendant was taken out of the police station episode, for example: a large house was used; the police were texas, about an hour's drive from murphy. (id. � 26). he worked case involving student, where issues of fact existed as to dateline crew, two of whom were carrying television cameras and society should tolerate it. alerted the media when the arrestees arrived at the courthouse dateline with confidential data, and permits hansen to interview the scene. (compl. � 36). some of dateline's personnel when dateline personnel gave the signal, they arrested the engaged in conduct so outrageous and extreme that no civilized reference into the amended complaint. show, in a manner that they knew would publicly humiliate a the principal claims survive, for if the allegations of the in considering whether nbc's conduct was outrageous, a trivialities." hoffmann-la roche, 144 s.w.3d at 445. although reasonable jury could find that the intrusion on conradt's analogous to [plaintiff's] situation . . . [are] libel and officers and nbc acted with deliberate indifference and in a although unethical conduct, by itself, does not necessarily peculiarly susceptible to emotional distress and suicide. of journalism."). action). the police discussed how they were going to execute the warrants. (spj code of ethics, http://www.spj.org/ethicscode.asp (last more concerned with how the dominant party treats the other dateline uses "decoys" posing as teenagers on-line to "lure," arrested conradt -- with the involvement of a dozen or so armed from conradt's home and had been sent off for forensic the question is whether the plaintiff has stated "enough facts" police officer, and they are eventually arraigned in court. hoffmann-la roche inc. v. zeltwanger, 144 s.w.3d 438, 445 (tex. the first instance, the court determines whether conduct is there were shots taken from numerous angles, both inside and he ran, unsuccessfully, for a position as a district judge. as "why are you here?" (id.). in some instances, the individual indifference' describes a mental state more blameworthy than see caldarola v. county of westchester, 343 f.3d 570, 576 (2d -5- 28). dateline and the police knew that conradt was an assistant intrusion upon the right to be left alone, intentional disclosure nbc crossed the line from responsible journalism to irresponsible his arrest. (id. �� 34-38, 44). he likely saw that the media relationship is not monitored by statute, but the profession is execution of the warrants. id. at 614. exceed all possible bounds of decency. nbc argues that the were induced to go to the murphy house, where they were arrested. or claim. id. finally, nbc relies heavily in this respect on the basis of recovery in a civil action."). under texas law, 35). at least one representative of perverted justice was also a "media ride-along" case, a washington post reporter and asserted by plaintiff on behalf of the estate. third, i address code-of-ethics-and-professional-conduct48.php?g=36?id=48 (last accordingly it encourages the police officers "to give a special (id. � 20). as it had done in other cities, dateline provided 11). the argument is rejected, for in the circumstances alleged the estate is suing not just for the suicide, but for other the second circuit held that the arrestees' fourth (1) he was subjected to an unreasonable search and seizure, in arresting him in a more controlled environment, equate to outrageous conduct, the failure to abide by these also mroz v. city of tonawanda, 999 f. supp. 436, 456 (w.d.n.y. gary hill, putting "predator" under the microscope, spj ethics herself is the particular person with references to whom complaint does not allege that conradt threatened to commit ! "recognize that gathering and reporting of the fourth amendment claim. prosecutor in rockwell county. (id.). he was 56 years old at 621. the negligence claim fails. although i have held above techs., inc., 987 f.2d 142, 150 (2d cir. 1993)). "'[b]ald warrants in the presence of the media, on camera; community, thereby creating or enhancing the risk of suicide or other danger, without taking any steps to prevent a foreseeable properly characterized as civil rights claims or intentional see erickson v. pardus, 127 s. ct. 2197, 2199 (2007) (per distinguish another "perp walk" case, lauro v. charles, 219 f.3d suicide was substantial. (id. � 62). on the february 20th show, one man asks hansen: "am i2 by early sunday, hansen and other dateline personnel 985 f.2d 94, 99 (2d cir. 1993) (due process rights are implicated to prevail on a � 1983 claim, a plaintiff must show the murphy police chief agreed to hansen's request. relationship between two parties that is not covered by an warrants shall issue, but upon probable cause, supported by oath "a passive role, as observers, rather than as active participants be prosecuted. (id.). -9- purpose. see also ayeni, 35 f.3d at 686 ("a private home is not opportunity for harm that otherwise would not have existed).5 -38- window and saw police officers and police vehicles, reporters and before the formal filing of charges."8 "restatement")). the tort does not encompass "mere insults, ciambriello v. county of nassau, 292 f.3d 307, 313 (2d cir. enforcement agents as they executed the warrant. cnn was information to the public and with its apparent influence over present. (id. � 36). in addition, there were numerous police distress; and (4) the resulting emotional layne, 526 u.s. at 617-18. moreover, the amended complaint those cases the state officials "'knew of a substantial risk that a "perp walk case." there, several westchester county purportedly informed law enforcement of mr. the police officers' actions were motivated not by a genuine law dvd). conradt did not, however, go to the sting house. on is premature to dismiss the claim on these grounds at this time. police operations, including the planning, outside the house. it the promotion of legitimate governmental commentators on journalistic ethics have raised9 risks as suicide in case the defendant would push." (compl. � reputation and "good name." on behalf of herself and his estate second cause of action is dismissed. people [perverted justice] who are working directly with law knew that conradt posed a risk of suicide, as the amended gardner, 986 f.2d 1122, 1126 (7th cir. 1993)); armijo v. wagon officers called out "terrell police!" and "search warrant." (id. been charged by any court, before he had any opportunity to be as to the second element, plaintiff alleges that -20- determination of whether dateline acted in a reckless and persuaded the police officers to engage in tactics principally them to obtain warrants and were outside mr. place of business in new york. (id. �� 2, 12). nbc broadcasts a the supreme court has recognized that the fourth law. a fair issue exists as to the reasonableness of the police manner that "shocks the conscience" or that she created the challenged pleading, any documents incorporated by reference, -22- house. (dvd). the police chief told hansen they believed not to retain. see id. at 67; first union nat'l bank v. richmont crew of "to catch a predator" -- including cameramen -- were on held that: entire episode (the "dvd") and deemed it incorporated by from about thirty feet away, hiding behind trees. (id. � 35). express contract, or where there is an express contract but it is defamatory statements were made, she has no cause of action"); issued in the first place, and that they were issued primarily states v. chirino, 483 f.3d 141, 147 (2d cir. 2007). the estate. (compl. �� 3, 4). she grew up in the house where risk of suicide or other harm. and (4) unjust enrichment. i discuss each claim in turn. present, and the murphy police chief was present as well. (id. � in a manner and with a state of culpability that would shock 341 f.3d 137, 144 (2d cir. 2003) (quoting farmer v. brennan, 511 discussion claim that the police and nbc acted with deliberate indifference enhanced by the involvement of law enforcement -- in reckless in the amended complaint and the facts that can be inferred from -25- though related to the deceased, and therefore it cannot be made the eighth cause of action is dismissed for the reasons plaintiff's ninth cause of action asserts an unjust conradt's privacy, the intrusion into his home, and the public see daniel givelber, the right to minimum social6 dateline's involvement. see wilson v. layne, 526 u.s. at 606 of the motion is granted. berger v. hanlon, 188 f.3d at 1155. plaintiffs "state claims for civil rights violations if they privileges, or immunities secured by the not know." restatement � 46(1) cmt. f. the restatement gives as assertion is plausible, in light of the circumstances described slander[] and malicious prosecution"). for plaintiff to prevail and the police; "[w]hen in the custody of police, an arrestee has other places, riverside county, california; greenville, ohio; spectacle to millions." (id. � 63). he likely also saw the court announced the "retirement" of the oft-quoted "no set of him. such conduct cannot be held to be her claims under � 1983. finally, of course, plaintiff is nbc characterizes the series as "an investigative news series" justice v. belo broad. corp., 472 f. supp. 145, 147 (n.d. tex. contract between conradt and nbc, nor could there be. this prong 1998). nbc contends that here there is no allegation that anyone influence or attention. only an overriding public the public spectacle that faced him, conradt took his own life. private detective who represents himself as a police officer and had "trespassed and invaded upon [his] property to broadcast a "staked out" in a u-haul truck parked on the adjacent property; outside the house; there is equipment to allow night-time i discuss the fourth amendment claim first and the more importantly, with respect to the suicide, i 5. the episode airs that the dateline representatives did not just have a "passive warrant, when the media's presence was not in aid of the (instructing that, to be actionable, defendant's conduct must be evidence from conradt's house. and students." (see http://www.rtnda.org/pages/about-rtnda.php barred as a matter of law because the police officers had arrest conscience."); kelsey, 2006 wl at 3725543, at *5 ("'deliberate nbc to submit a copy of the february 20, 2007 episode. nbc conradt's constitutional rights were violated in two respects: equipment, money, services, and other things of value to local involvement in execution of warrants); berger v. hanlon, 129 f.3d 11 f. supp. 2d 420, 424 (s.d.n.y. 1998) (citing brass v. am. film right."). -- and the rico "enterprise" were separate and distinct, as alleges that nbc intruded into a law enforcement operation to examination. he is asked what could be on the computers, and he invasion of the right to privacy may only be brought by or on television show. it alleges that what happened here was neither to execute arrest warrants in a home. id. at 606, 614. the here, there is no allegation of an implied or quasi- standing"); renfro drug v. lawson, 160 s.w.2d 246, 249 (tex. app. jury could take note of the fact that, as alleged in the amended police chief was speculating, on camera for national television, of these standards by failing to take steps to minimize the of suicide and acted in reckless and conscious disregard of risk b. prior proceedings because it concluded that the law enforcement defendants were player in any standoff." (see rtnda, code of ethics and barrier between reporters and cops that is central to the mission (id.). to the law enforcement officers based on qualified immunity, but she angrily speaks of the "reckless actions of a self-appointed police officers -- surely presented risks other than suicide, the chats or the pictures he had already sent." hence, the