Litigation Over Seizure of Photographer’s Camera

I just ran across a procedural decision in this litigation — Blackden v. New Hampshire State Police (D.N.H. July 8, 2011) — and thought that our readers who follow such issues might want to know about it. The decision itself is focused on whether a federal court may intervene at this point, given the ongoing state proceedings; but here’s the underlying fact pattern:

As alleged in the first amended complaint, doc. no. 16, Blackden is a freelance reporter and photographer for various news agencies, including plaintiff Belsito Communications. On August 25, 2010, Blackden heard a radio transmission calling the Penacook Rescue Squad to the scene of a serious traffic accident. Blackden went to the scene and donned a protective coat and a helmet marked “Photographer.” After taking photographs of the accident and rescue efforts, Blackden was approached by state trooper James Decker, who asked Blackden to identify himself and to produce some form of identification. Blackden complied with Decker’s request. Shortly after questioning him, Decker seized Blackden’s camera, which contained a digital photo card containing the photographic files Blackden had taken at the scene.

Public records, which this court has judicially noticed, disclose the events that followed seizure of Blackden’s camera. On August 26, 2010, warrants were issued authorizing a search of Blackden’s camera and digital card, and seizure of image files on the card. On November 19, 2010, a warrant was issued for Blackden’s arrest. Blackden was charged with obstructing government administration, impersonating medical/rescue personnel, and unauthorized use of red lights, all in violation of state law. The camera was returned to Blackden, but the digital card was retained pending resolution of Blackden’s state court trial. On May 12, 2011, Blackden was convicted in the state district court of impersonating medical/rescue personnel and unauthorized use of red lights. [Text moved: -EV] Blackden may appeal (or may have already appealed) his Class A misdemeanor conviction ” ‘to obtain a de novo jury trial in the superior court’ “, in which case, the district court conviction is deemed vacated.

Before his conviction, Blackden and Belsito filed this § 1983 suit against Colonel Quinn, in his official capacity, and Trooper Decker, individually. Plaintiffs allege that Decker’s seizure of the camera and digital photo card was without probable cause, in violation of Blackden’s Fourth Amendment right to be free from unreasonable search and seizure. Plaintiffs also allege that retention of the card deprived them of their First Amendment rights to publish the images contained on the digital card. They seek monetary relief against Decker and prospective injunctive relief against Decker and Quinn….

Plaintiffs’ claims against Decker turn upon the alleged absence of probable cause for the seizure of Blackden’s camera and digital photo card. See Am. Cmpt., doc. no. 16, pgs. 6-7 (“seizure and retention of [Blackden’s] property without probable cause” violates the Fourth Amendment, and, further, has “prevented [plaintiffs] from publishing and or broadcasting” the photographs in violation of their “First Amendment rights to freedom of speech and the press .”)….

Belsito’s First Amendment claims, as pled, necessarily depend upon its assertion that the seizure of Blackden’s digital card was unlawful. Accordingly, both Blackden’s and Belsito’s claims must be stayed until that issue is resolved.