Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
MAY 4 2001
No. 00-6054
PATRICK FISHER
Clerk
complex allegorical fantasy intended to symbolize the rise of Nazism and the
corresponding decline of morality in Nazi Germany. The movie opens in Danzig
in the 1930s when the main character, Oskar Matzerath, decides to stop growing
at the age of three in order to protest against the absurdities and obscenities of
the adult world during the rise of Nazism. App. Vol. 17 at 5544. Throughout
the approximately eighteen years depicted in the film, Oskar remains diminutive
in size and appears to be a very young boy, while those around him continue to
age normally. Not until the end of the film and near the end of World War II,
when Oskar is twenty-one years old, does he express a desire to resume growing
again. The movie, which has been in public circulation around the world for over
twenty years, has received critical acclaim and been discussed in several academic
articles and books related to film studies.
In June 1997, a citizen complained to OCPD Maj. William Citty that The
Tin Drum contains child pornography. Maj. Citty contacted vice division Lt.
Gregory Taylor, advised him of the complaint and asked him to obtain a copy of
the movie. Lt. Taylor did so and assigned the case to Sgt. Se Kim. Sgt. Kim
watched the movie, observed certain scenes he believed contained child
pornography and, in accordance with a common vice division practice, took the
movie to the county courthouse to request judicial confirmation of his opinion. A
state judge agreed to watch the movie and give his own opinion.
On the morning of June 24, 1997, Sgt. Kim and Sgt. Britt High met with the
judge, who advised the officers he believed The Tin Drum contained child
pornography in violation of Okla. Stat. tit. 21, 1021.2. The judge
communicated his decision orally and did not issue a written ruling or specify
which scenes violated the law. However, the judge later explained that he based
his opinion on three scenes in the movie, which have been referred to in this
litigation as (1) the bathhouse scene, (2) the bedroom scene, and (3) the sitting
room scene. All three scenes portray Oskar and a female character named Maria
Matzerath as being sixteen years old, although at the time of filming the actor
playing Oskar was eleven years old and the actress playing Maria was twentyfour. According to the judge, the bathhouse scene shows Oskar engaged in or
portrayed, depicted or represented to be engaging in an act of cunnilingus with
Maria. App. Vol. 9 at 2704. In the bedroom scene, Oskar begins to engage in or
is portrayed, depicted, or represented as engaging in an act of sexual intercourse
with Maria. Id. Finally, in the sitting room scene, Oskar observes Maria and an
adult male engaged in or portrayed, depicted, or represented as engaging in
sexual intercourse on a couch. Id. at 2705.
Later that day, Lt. Taylor notified Maj. Citty of the judges ruling. Maj.
Citty then contacted OCPD Police Chief Sam Gonzales, told him about the
judges decision, and said he was going to have his officers confer with the
Macy said no, probably not. App. Vol. 12 at 3655. Later that afternoon, Maj.
Citty also spoke to DA Macy and asked if the OCPD should remove the film from
public access. DA Macy responded something like that. App. Vol. 8 at 2302.
Maj. Citty then called Lt. Taylor and directed him to implement the plan for
voluntary relinquishment of The Tin Drum. Maj. Citty reiterated that the
videotapes must be obtained totally voluntarily and that if cooperation was not
forthcoming, the officers should leave and take steps to obtain a warrant.
That evening, Sgt. High, Sgt. Kim, and a third officer, Sgt. Matt French,
went to several video stores in Oklahoma City and obtained all available copies of
The Tin Drum. They also asked for and received the names and addresses of
several customers who were renting the movie. One of those customers was
Michael Camfield, and the officers went to his apartment to ask for his copy of
the movie. Camfield is the Development Director of the American Civil Liberties
Union of Oklahoma. He had recently learned of the controversy surrounding The
Tin Drum and was watching the film to formulate rebuttals and policy responses
on behalf of the ACLU when the officers knocked on his door. Sgt. High told
Camfield that the film contained child pornography under Oklahoma law;
Camfield responded that he disagreed with the judges determination. A great
debate concerning the artistic merits of the movie ensued, App. Vol. 21 at 6724,
but Camfield eventually turned over his copy of the videotape to the officers. As
a result of the voluntary surrender plan, the OCPD removed a total of nine copies
of the movie from public circulation. No warrants were issued for any of the
videotapes. Although Camfield and other parties later revoked their consent and
demanded the return of their videotapes, the OCPD refused.
Camfield subsequently sued the City, DA Macy, Sgt. High and Sgt. Kim in
federal court. He alleged that the defendants violated the VPPA, 18 U.S.C.
2710, and infringed his rights under the First, Fourth and Fourteenth
Amendments to the United States Constitution, in violation of 42 U.S.C. 1983.
He also sought a declaratory judgment that the OCPDs voluntary surrender plan
constituted an unconstitutional prior restraint; that The Tin Drum does not contain
child pornography; and that Oklahomas child pornography laws are overly broad
in violation of the First Amendment. Camfield later amended his complaint to
add Chief Gonzalez, Interim Chief Richard DeLaughter, ADA High, Maj. Citty,
Lt. Taylor and Sgt. French as defendants. With the exception of Chief Gonzales,
who was sued only in his individual capacity, and Interim Chief DeLaughter, who
was sued only in his official capacity, each of the individual defendants was sued
in his or her individual and official capacity. 1
Ruling on the parties cross-motions for summary judgment, the district
Because Interim Chief DeLaughter was sued only in his official capacity,
Chief M.T. Berry was substituted as a defendant pursuant to Rule 25(d)(1) of the
Federal Rules of Civil Procedure when he replaced DeLaughter.
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Fourth Amendment. Once again, however, the district court granted summary
judgment based on qualified immunity and/or lack of personal participation to
most of the individual defendants. The only exceptions were Sgts. High, Kim and
French, because there was a factual dispute as to whether Camfield voluntarily
gave them his copy of The Tin Drum. Finally, finding no basis for municipal
liability, the district court granted summary judgment to the City as to each of
Camfields section 1983 claims.
With regard to Camfields claim under the VPPA, the district court held
that Sgts. High, Kim and French violated the Act as a matter of law when they
obtained Camfields name and address from the video store without a warrant or
court order. The district court subsequently held that the City was liable for any
damages that Camfield incurred as a result of this violation because the officers
were acting within the scope of their employment. However, because the actual
amount of Camfields damages involved questions of fact, the district court left
that issue for the jury.
The case proceeded to trial on the issues of (1) whether Sgts. High, Kim
and French violated Camfields Fourth Amendment rights by taking his copy of
The Tin Drum without his voluntary consent; (2) the amount of damages if there
was a Fourth Amendment violation; and (3) the proper amount of damages for the
officers violation of the VPPA. Although Camfield also sought to pursue a claim
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that the officers were liable under the Fourth Amendment regardless of whether
he gave voluntary consent because they constructively seized his copy of The
Tin Drum, the district court held that the Fourth Amendment issue at trial would
be limited to whether Camfield voluntarily relinquished the videotape. After a
three-day trial, the jury found in favor of Sgts. High, Kim and French on
Camfields Fourth Amendment claims and awarded Camfield the statutory
minimum of $2500 in liquidated damages on his VPPA claim.
The district court subsequently denied Camfields motion to alter or amend
the judgment, which sought, among other things, an injunction directing an
accounting of OCPDs records and the expunction of any information that linked
him with a child pornography investigation.
II.
Camfield raises six issues on appeal. Specifically, he contends that the
district court erred by (1) refusing to address the constitutionality of Oklahomas
child pornography statute; (2) granting partial summary judgment on his section
1983 claims; (3) rejecting his constructive seizure claim; (4) excluding certain
evidence from trial; (5) giving improper instructions to the jury; and (6) refusing
to order the expunction of his name from OCPDs records.
Constitutionality of Okla. Stat. tit. 21, 1021.2
Camfield contends that the district court erred in declining to consider the
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Maria Matzerath were not actually engaged in sexual conduct during the three
scenes at issue in The Tin Drum. However, the court also observed that the
absence of actual sexual activity did not automatically render section 1021.2
inapplicable because the statute also prohibits material in which a minor is
portrayed, depicted, or represented as engaging in sexual conduct. The district
court concluded that the bathhouse scene, the bedroom scene and the sitting room
scene were each covered by the express language of section 1021.2 because those
scenes portrayed Oskar and Maria as sixteen-year-old minors engaged in sexual
conduct.
Notwithstanding its conclusion that The Tin Drum contained certain scenes
prohibited by section 1021.2, the district court determined that the movie was not
subject to criminal penalties because it qualified for a statutory exception
applicable to bona fide works of art that do not appeal to prurient interests:
This act shall not apply to persons who may possess or distribute
obscene matter or participate in conduct otherwise prescribed by this
act, when such possession, distribution, or conduct occurs in the course
of law enforcement activities, or in the course of bona fide scientific
education or comprehensive research or study, or bona fide objects of
art or artistic pursuits, or like circumstances or justification, where the
possession, distribution or conduct is not related to the subject matters
appeal to prurient interests.
Okla. Stat. Ann. tit. 21, 1021.1 (1983). Adopting and incorporating that ruling
into its order in this case resolving the parties cross-motions for summary
judgment, the district court concluded that because the artistic exception of
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section 1021.1 saves the movie from criminal prosecution under section 1021.2,
there was no need to decide whether section 1021.2 was overly broad in
contravention of the First Amendment.
On appeal, Camfield does not challenge the district courts holding that the
three scenes at issue in The Tin Drum fall within the portrayed, depicted, or
represented as engaging in any [sexual] act language of section 1021.2. Nor
does he argue that the district court erred in holding that the artistic exception of
section 1021.1 applies to the child pornography prohibitions of section 1021.2.
Rather, Camfield contends that the district court should have addressed the
constitutionality of section 1021.2 and struck down its simulated sex language
as overbroad. Such a declaration is important, Camfield argues, because in his
view the district court's reliance on the artistic exception of section 1021.2
rather than on the constitutional protections of the First Amendment itself failed
to "free The Tin Drum from government imputations of child pornography."
Appellant's Opening Br. at 35.
Several defendants counter that Camfields constitutional challenge was
mooted by the Oklahoma Legislatures significant revision of its child
pornography and obscenity laws during the pendency of this appeal. See H.B.
2104, 47th Leg., 2d Sess. (Okla. 2000). Of particular relevance to this case, the
Legislature narrowed the definition of child pornography prohibited by section
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was dismissed as moot. See Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116
(4th Cir. 2000) (citing Aladdins Castle, 455 U.S. at 289 & n.11); Kentucky Right
to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (same); Barilla v. Ervin,
886 F.2d 1514, 1521 (9th Cir. 1989) (same; also citing Aladdins Castle, 455 U.S.
at 296 n.1 (White, J., concurring in part and dissenting in part)). These circuits
have therefore interpreted Aladdins Castle as precluding a mootness
determination in cases challenging a prior version of a state statute only when the
legislature has openly expressed its intent to reenact the challenged law. See
Valero Terrestrial Corp., 211 F.3d at 116; Kentucky Right to Life, 108 F.3d at
645; Barilla, 886 F.2d at 1521. We join these circuits and hold that Aladdins
Castle is inapposite in cases such as this where there is no evidence in the record
to indicate that the legislature intends to reenact the prior version of the disputed
statute.
Finally, Camfield argues that a live case or controversy exists because the
recent legislative amendments explicitly require law enforcement officers to seize
an evidentiary copy of suspected child pornography or all copies of explicit
child pornography found in the possession of any person arrested for violating
Oklahomas child pornography laws. See Okla. Stat. Ann. tit. 21, 1022,
1024.3 (Supp. 2001). Although Camfield apparently believes these statutes run
afoul of the First Amendment because they do not require an adversarial hearing
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prior to seizure, that issue is irrelevant to the question of whether the simulated
sex language of the prior version of section 1021.2 is unconstitutionally
overbroad. 2 We conclude that this portion of Camfields appeal is moot and is
thereby subject to dismissal.
Summary Judgment
Camfield next contends that the district court erred in granting summary
judgment to several defendants on his section 1983 claims. We review a district
court order granting summary judgment de novo. Cooperman v. David, 214 F.3d
1162, 1164 (10th Cir. 2000). Summary judgment is proper when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ.
P. 56(c). When applying this standard, we view the evidence and draw
reasonable inferences therefrom in the light most favorable to the nonmoving
party. Cooperman, 214 F.3d at 1164.
In its answer brief, the City chastises Camfield for challenging the
newly-enacted statutes on this basis, asking rhetorically: Does Camfield now
admit that despite all his testimony to the contrary, that he wants to
possess/distribute materials which record the sexual abuse of children? Citys
Answer Br. at 38. Though wholly inappropriate and completely unfounded, the
Citys answer brief is laced with this and other
ad hominem attacks against
Camfield and his counsel. We are disappointed that the Citys counsel has
chosen to abandon the decorum and respect for opposing parties and counsel that
we expect from members of our bar.
2
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In its summary judgment order, the district court determined that Camfield
properly alleged the deprivation of two constitutional rights. First, the district
court concluded that the OCPDs complete removal of The Tin Drum from public
access without a prior adversarial hearing constituted a prior restraint on speech
in violation of the First and Fourteenth Amendments. Second, the district court
held that the OCPDs warrantless removal of the videotape from Camfield at his
apartment would constitute an unlawful seizure in violation of the Fourth
Amendment absent his voluntary consent. 3 Nevertheless, the district court held
that a majority of the defendants were entitled to summary judgment on both
claims. Camfield challenges several of those rulings on appeal.
Individual defendants
The district court granted summary judgment based on qualified immunity
to every individually-named defendant on the prior restraint claim and to every
individually-named defendant except Sgts. High, Kim and French on the unlawful
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an admittedly clearly established right). Second, the district court held that ADA
High was entitled to qualified immunity because a reasonable person in her
position could have concluded, in light of the state judges ruling concerning The
Tin Drum and the lack of any prior case law applying the artistic exception of
section 1021.1 to the child pornography prohibitions of section 1021.2, that the
movie did not enjoy any First Amendment protection and that its total removal
from public access would therefore be constitutional. See New York v. Ferber,
458 U.S. 747 (1982) (holding that child pornography is not protected by the First
Amendment). Finally, the district court held that Chief Gonzales and DA Macy
both enjoyed qualified immunity because they were not personally responsible for
the implementation of the voluntary surrender plan. See Mitchell v. Maynard, 80
F.3d 1433, 1441 (10th Cir. 1996) (personal participation is an essential element of
a 1983 claim).
According to Camfield, none of these reasons provide a proper basis for
granting qualified immunity. Specifically, he asserts that the district court (1)
misapplied the extraordinary circumstances doctrine in granting Maj. Citty, Lt.
Taylor, Sgt. High, Sgt. Kim and Sgt. French qualified immunity; (2) improperly
focused on ADA Highs erroneous interpretation of Oklahoma law in awarding
her qualified immunity; and (3) ignored factual disputes regarding the personal
involvement of Chief Gonzales and DA Macy in the implementation of the
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presumed the law on this issue was clearly established and then went on to hold,
for the reasons stated above, that the individually-named defendants were
nonetheless entitled to qualified immunity on this claim.
Consequently, before we may determine whether the district court properly
granted qualified immunity in the face of what it assumed was clearly-established
law on prior restraint, we must first decide whether Camfield has shown that the
voluntary surrender plan constituted an unconstitutional prior restraint on speech
and, if so, whether the law was clearly established when the OCPD implemented
the plan in June 1997.
The district court, relying primarily on Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46 (1989), agreed with Camfield that the voluntary surrender plan was
unconstitutional. In Fort Wayne Books, an obscenity case, the Supreme Court
acknowledged that obscene speech is unprotected by the First Amendment, but it
recognized that, to avoid the risk of prior restraint on speech, the government
must use rigorous procedural safeguards before it may remove from public
circulation expressive materials, including movies, which it considers obscene.
Id. at 62. Specifically, the Court held that [w]hile a single copy of a book or
film may be seized and retained for evidentiary purposes based on a finding of
probable cause, the publication may not be taken out of circulation completely
until there has been a determination of obscenity after an adversary hearing. Id.
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Amendment. Ferber, 458 U.S. at 763. However, child pornography differs from
obscenity in two important respects. First, child pornography is afforded even
less constitutional protection than obscenity. See Osborne v. Ohio, 495 U.S. 103
(1990) (states may outlaw private possession of child pornography even though
Stanley v. Georgia, 394 U.S. 557 (1969), held that states may not constitutionally
prohibit private possession of obscene material); Ferber, 458 U.S. at 764-65
(states may regulate child pornography even if material is not obscene under
three-part Miller test). Second, as courts have noted in the context of probable
cause determinations, the difficulty encountered in determining whether material
is obscene often is absent when determining whether material contains child
pornography. See United States v. Kimbrough, 69 F.3d 723, 727-28 (5th Cir.
1995) (Identification of visual depictions of minors engaging in sexually explicit
conduct, in comparison [to the legal determination of whether expressive material
is obscene], is a factual determination that leaves little latitude to the officers.).
See also United States v. Simpson, 152 F.3d 1241, 1247 (10th Cir. 1998) (the
words child pornography need no expert training or experience to clarify their
meaning) (quoting United States v. Layne, 43 F.3d 127, 132-33 (5th Cir. 1995));
United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993) (Most minors look
like minors and most adults look like adults, and most of the time most law
enforcement officers can tell the difference.); American Library Assn v. Barr,
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956 F.2d 1178, 1192 (D.C. Cir. 1992) (However hazy the line between obscenity
and protected speech, the line between eighteen years old and under is not dim
and uncertain.); United States v. Hurt, 808 F.2d 707, 708 (9th Cir. 1987) (Any
rational adult person can recognize sexually explicit conduct engaged in by
children under the age of 16 when he sees it.). These child pornography
holdings demonstrate that [unlike cases involving obscenity,] courts do not
require more rigorous procedural safeguards or an adversarial hearing prior to
seizure when law enforcement officers have objective and non-evaluative criteria
by which to make their determinations. Boggs v. Merletti, 987 F. Supp. 1, 8
(D.D.C. 1997), affd on other grounds sub nom., Boggs v. Rubin, 161 F.3d 37
(D.C. Cir. 1998). Therefore, while we do not decide the issue here, we note that
the question of whether a prior adversarial hearing is required before the
government may seize all copies of suspected child pornography is far different
and significantly more difficult than the question of whether a prior adversarial
hearing is required before the government may seize all copies of suspected
obscenity.
Nevertheless, under the particular facts of this case, we agree with the
district court that the voluntary surrender plan imposed an unconstitutional prior
restraint on speech. Our holding is based on the fact that at the time the OCPD
implemented the voluntary surrender plan, Oklahomas child pornography laws
26
included the statutory exception for bona fide works of art that do not appeal to
prurient interests, see Okla. Stat. Ann. tit. 21, 1021.1 (1983), an exception
which essentially inserted parts of the Miller test into the definition of child
pornography under section 1021.2, see Miller, 413 U.S. at 24 (requiring
evaluation of whether suspected obscene material appeals to the prurient interest,
portrays sexual conduct in a patently offensive way, and taken as a whole, lacks
any serious literary, artistic, political, or scientific value). Thus, while an OCPD
officer could reasonably have made the factual determination of whether certain
scenes in The Tin Drum satisfied the definition of child pornography in section
1021.2 before implementing the voluntary surrender plan, the determination of
whether the movie fell within the artistic exception of section 1021.1 was
necessarily a legal one that required a judicial adversarial hearing as set forth in
Fort Wayne Books. Because the OCPD did not timely seek such a hearing, its
complete removal of The Tin Drum from public access was unconstitutional.
We must next determine whether this law was clearly established when the
officers implemented the voluntary surrender plan in June 1997. A constitutional
right is clearly established when there is a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority from other courts
[has] found the law to be as the plaintiff maintains. Medina v. City & County of
Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)).
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Camfield has failed to meet his burden in this regard. Although the law
was clearly established in June 1997 that the government could not completely
remove suspected obscenity from public access without a judicial determination
of obscenity following an adversarial hearing, Fort Wayne Books, 489 U.S. at 63;
In re Search of Kittys East, 905 F.2d 1367, 1371 n.3 (10th Cir. 1990), Camfield
does not cite, nor have we found, any cases which have held that the complete
removal of suspected child pornography from public circulation without a prior
adversarial hearing constitutes a prior restraint. This absence of related cases is
significant in light of the aforementioned differences between obscenity and child
pornography and is fatal to Camfields attempt to obtain a reversal of the district
courts grant of qualified immunity on his prior restraint claim. See Tonkovich v.
Kansas Bd. of Regents, 159 F.3d 504, 530 (10th Cir. 1998) (qualified immunity is
proper when plaintiff fails to cite any case law which demonstrates the violation
of a clearly established constitutional right).
Accordingly, because Camfield has not met his threshold burden of
demonstrating that the voluntary surrender plan violated a clearly established
constitutional right, we find it unnecessary to address his specific factual and
legal arguments as to why the district court erred in granting qualified immunity
to each of the individually-named defendants. See Albright, 51 F.3d at 1535 (a
defendant is entitled to qualified immunity if the plaintiff fails to show that the
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removal of the film from public access without a prior adversarial hearing which
constituted a prior restraint on speech.
Camfields effort to fit the facts of this case under the rubric of Ross v.
Neff, 905 F.2d 1349 (10th Cir. 1990), is unsuccessful. In Ross, another section
1983 case, we reversed a directed verdict in favor of a county in Oklahoma based
on the sheriffs testimony concerning his belief as to the legality of his deputys
unlawful arrest. As we explained, this testimony was sufficient to permit the
jury to find a custom or policy to allow county officers to make [similar unlawful]
arrests. Id. at 1355. Camfield argues that a triable issue of fact was likewise
created in this case by a press release from Chief Gonzales which, according to
Camfield, defended the legality of the voluntary surrender plan. To the contrary,
the press release did not state that the OCPD officers acted legally. Instead, it
merely described the actions the officers took in obtaining copies of The Tin
Drum, and it expressed Chief Gonzales disagreement with recent allegations in
the media that the OCPD seized copies of the film from the public.
As a final basis for municipal liability, Camfield argues that the City may
be held liable simply because it provided counsel to defend its officers in this
litigation. Camfield does not cite any authority in his opening brief for this
proposition, and we reject it as frivolous. The district court properly entered
summary judgment in favor of the City.
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Relevancy
Prior to trial, Camfield informed the district court that he intended to
introduce exhibits and testimony relating to his First and Fourteenth Amendment
claims, including the artistic merit of The Tin Drum, its protected status under the
First Amendment, and the fact that the OCPD unconstitutionally removed the
movie from public circulation without a prior adversarial hearing. The district
court sustained the defendants irrelevancy objections to this evidence, stating
these issues have not only been ruled on by the court, but have been decided in
plaintiffs favor. App. Vol. 18 at 5810. In an abundance of caution, however,
the district court instructed the jury that The Tin Drum does not contain child
pornography in violation of Oklahoma law and is protected by the First
Amendment to the Constitution of the United States. App. Vol. 20 at 6516.
Camfield argues that the district courts ruling was improper because it
treated First Amendment material as ordinary contraband rather than affording it
the special protections enjoyed under the Fourth Amendment. As we explained
previously, however, the protected status of First Amendment material is relevant
only in determining whether the police initiated a prior restraint on speech, not in
deciding whether the police actually seized that material. Camfields evidence
relating to his First and Fourteenth Amendment issues was irrelevant and thus
inadmissible under Rule 402 of the Federal Rules of Evidence. The district court
37
did not abuse its discretion in limiting the evidence at trial to Camfields Fourth
Amendment claim.
Habit evidence
In an attempt to bolster his claim that he did not voluntarily surrender his
copy of The Tin Drum, Camfield made a pretrial proffer that five video store
clerks and one customer would testify that Sgt. High told them he was there to
seize their copies of The Tin Drum because a judge had ruled that the movie
contained either obscenity or child pornography. Camfield argued the testimony
was admissible as evidence of Sgt. Highs habit under Rule 406 of the Federal
Rules of Evidence. The district court disagreed and excluded the testimony.
A habit is a regular practice of meeting a particular situation with a
specific type of conduct, such as the habit of going down a particular stairway
two stairs at a time, or of giving a hand-signal for a left turn, or of alighting from
railway cars while they are moving. The doing of the habitual acts may become
semi-automatic. United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir.
1987) (quoting Fed. R. Evid. 406 advisory committee notes). Announcing the
seizure of child pornography upon walking into a video rental store is not a semiautomatic act and could not serve as a basis for habit evidence. Further, while it
is not clear from the record whether the six witnesses would each testify to a
38
separate event, we have previously stated that [f]ive incidents ordinarily would
be insufficient to establish the existence of a habit. Perrin v. Anderson, 784
F.2d 1040, 1046 (10th Cir. 1986) (citing Reyes v. Missouri Pac. Rwy. Co., 589
F.2d 791, 794-95 (5th Cir. 1979)). The district court did not abuse its discretion
in holding that the testimony was inadmissible as habit evidence under Rule 406.
Jury Instructions
Camfield contends that the district court improperly instructed the jury on
the question of his voluntary consent. He also contends the court erred in
refusing to give his proposed instruction on presumed damages. We review the
district courts decision to give a particular jury instruction for abuse of discretion
and consider the instructions as a whole de novo to determine whether they
accurately informed the jury of the governing law. Garcia v. Wal-Mart Stores,
Inc., 209 F.3d 1170, 1173 (10th Cir. 2000) (quoting United States v. CerratoReyes, 176 F.3d 1253, 1262 (10th Cir. 1999)).
Voluntary consent
At the end of the trial, the district court gave twenty-one instructions to the
jury. Instruction No. 14 dealt with the voluntariness of Camfields consent to
surrender his rented copy of The Tin Drum. On appeal, Camfield challenges the
following portion of that instruction:
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authority is not, by itself, enough to show voluntary consent. See United States v.
Manuel, 992 F.2d 272, 275 (10th Cir. 1993) (Mere submission to lawful
authority does not equate to consent.). The second sentence correctly states that
voluntary consent cannot be based on a misrepresentation of lawful authority.
See Bumper v. North Carolina, 391 U.S. 543, 548-50 (1968) (holding consent
involuntary because officers obtained it after erroneously representing they had a
valid warrant). Finally, as the district court explained during the jury charge
conference, the last sentence attempts to set forth an objective reasonableness
inquiry for the jury to judge the officers conduct by the facts available on the day
of their encounter with Camfield rather than by the fact that The Tin Drum was
later held not to violate Oklahoma's child pornography laws. Cf. Graham v.
Connor, 490 U.S. 386, 397 (1989) (As in other Fourth Amendment contexts, . . .
the reasonableness inquiry in an excessive force case is an objective one: the
question is whether the officers actions are objectively reasonable in light of
the facts and circumstances confronting them, without regard to their underlying
intent or motivation.). Further, to the extent that the law on the last issue is
unsettled, the decision to instruct one way or the other does not constitute plain
error. Davoll, 194 F.3d at 1141 (citing Heath v. Suzuki Motor Corp., 126 F.3d
1391, 1394 (11th Cir. 1997)).
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Presumed damages
Before this case was submitted to the jury, Camfield proposed a damages
instruction which stated that, in addition to actual or nominal damages, the jury
could award Camfield presumed damages for the loss of his constitutional right to
be free from unreasonable seizures in the event the jury found that the officers
violated the Fourth Amendment. The district court rejected that instruction and
instead instructed the jury to award only actual or nominal damages if it found a
Fourth Amendment violation.
Camfield argues that the district court should have given his presumed
damages instruction because such damages are appropriate under Bell v. Little
Axe Independent School District No. 70, 766 F.2d 1391, 1409 (10th Cir. 1985)
(presumed damages are available for violations of substantive constitutional
rights) (citing Corriz v. Naranjo, 667 F.2d 892, 897 (10th Cir. 1981)).
According to Sgts. High, Kim and French, however, the district courts damages
instruction was proper because the Supreme Court rejected the concept of
presumed damages for section 1983 cases in Memphis Community School District
v. Stachura, 477 U.S. 299 (1986).
We need not resolve the effect of Stachura on our holding in Bell because
in this case the jury obviously never considered the question of damages,
inasmuch as the initial question of liability [on the Fourth Amendment claim] was
42
decided in favor of the defendant[s]. Taylor v. Natl Trailer Convoy, Inc., 433
F.2d 569, 571 (10th Cir. 1970). Therefore, [e]ven if the trial court erred in
instructing the jury on [damages], the error is harmless because the erroneous
instruction could not have changed the result of the case. Richards v. City of
Topeka, 173 F.3d 1247, 1253 (10th Cir. 1999) (quoting Lusby v. T.G. & Y.
Stores, Inc., 796 F.2d 1307, 1310 (10th Cir. 1986)).
Expungement
Camfield contends that the district court erred in denying his motion to
alter or amend the judgment, which requested injunctive relief directing an
accounting and expungement of any personally identifiable information in
OCPDs records that linked Camfield to a child pornography investigation. We
review the denial of a Rule 59(e) motion seeking injunctive relief for an abuse of
discretion. See Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d
1221, 1231 (10th Cir. 1997).
It is well settled in this circuit that courts have inherent equitable authority
to order the expungement of an arrest record or a conviction in rare or extreme
instances. See United States v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993); United
States v. Linn, 513 F.2d 925, 927 (10th Cir. 1975). Notably, however, this court
has never addressed the more specific issue of whether the district courts have the
authority to order the expunction of identifying information from a police report.
43
Given the fact that there is a compelling public need for an effective and
workable criminal identification procedure, United States v. Seasholtz, 376 F.
Supp. 1288, 1290 (N.D. Okla. 1974), it is possible that [t]he judicial editing of
history could produce a greater harm than that sought to be corrected by the
expunction of identifying information from a police report, Rogers v. Slaughter,
469 F.2d 1084, 1085 (5th Cir. 1972). Indeed, we have found only one case where
a court has ordered such relief. See Gomez v. Wilson, 323 F. Supp. 87, 93
(D.D.C. 1971) (ordering expungement of all police forms, indexes, and crossindexes that identified plaintiff as a suspected vagrant, based on a finding that
police stopped plaintiff without any articulable suspicion of illegal activity,
questioned him about his activities, and filled out a vagrancy observation form).
Camfield implies that the civil action provision of the VPPA, 18 U.S.C.
2710(c), provides statutory authority for expungement of his name from
OCPDs records, but that section does not expressly grant such relief. Moreover,
although the VPPA provides that a court may award such other preliminary and
equitable relief as the court determines to be appropriate, 18 U.S.C.
2710(c)(2)(D), this language has not been construed to provide the relief
Camfield seeks.
Ultimately, there is no need in this case to decide whether the district court
had the authority to order the expungement of Camfields name from an official
44
police report because the district court was well within its discretion in denying
that request. As the district court explained, Camfields voluntary publication of
his identity and his connection with this case in the local and national news media
rendered his new-found desire for anonymity unpersuasive. Specifically,
Camfield agreed to be interviewed by a local television station within twenty-four
hours after the OCPD obtained his copy of The Tin Drum, he appeared on the
nationally-televised program Good Morning America a few days later, and his
name was mentioned in several ACLU press releases and newsletters chronicling
his case. At one point, Camfield sent faxes to several news agencies and
provided a corrected spelling of his name for future stories. Based on these
repeated instances of Camfields voluntary self-promotion of his association with
a film that had been described as containing child pornography, the district court
did not abuse its discretion in denying Camfields motion for injunctive relief.
III.
45