United States District Court, D. New Hampshire
Belsito Communications, Inc. d/b/a 1st Responder Newspaper and Brian K. Blackden, Plaintiffs
New Hampshire State Trooper James Decker, Defendant Opinion No. 2015 DNH 009
STEVEN J. MCAULIFFE UNITED STATES DISTRICT JUDGE
Since approximately 2007, Brian Blackden has been a part-time freelance photographer. During that period of time, he has submitted photographs to a number of regional media outlets, including Belsito Communications, publisher of a website and newspaper called “1st Responder News.” Together, Blackden and Belsito Communications bring this action against New Hampshire State Trooper James Decker, claiming that Trooper Decker violated their constitutionally protected rights. See generally 42 U.S.C. § 1983.
Trooper Decker moves for summary judgment, asserting that there are no genuinely disputed material facts and saying he is entitled to judgment as a matter of law. Plaintiffs object. For the reasons discussed, Trooper Decker’s motion is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists and Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Several years ago, Blackden briefly worked as a firefighter/EMT for the towns of Kingston and Newton, New Hampshire. He has not, however, ever been licensed or certified as a firefighter by the State of New Hampshire, nor has he ever taken any firefighting training at the state fire academy. Blackden Deposition (document no. 44-27) at 36. Beginning in about 2007, Blackden became a part-time freelance photographer. Over the years, he has submitted photographs to a number of regional news outlets, including Belsito Communications, a publisher of both online and print media including “1st Responder News.” Joseph Belsito, president and sole owner of Belsito Communications, described “1st Responder News” as a “niche publication that is delivered to the emergency services community . . . . that reports on local news and incidents within the states that it serves.” Belsito Deposition (document no. 44-32) at 9.
In 2009 or 2010, Blackden purchased a vehicle formerly used as an ambulance by the Town of Derry. Blackden Deposition at 137-38. He modified the vehicle only slightly (to accommodate some of his equipment), but he did remove the red lenses from the front of the vehicle, and replaced them with yellow or amber lenses. Id. at 138. He did not, however, remove the red lenses from the four lights at the rear of the ambulance. So, other than a sign above the license plate that read “Fire Department Photographer, ” the rear of the vehicle appeared as it had when it was in use as an ambulance. Id. at 141-42. Blackden also maintained a portable radio that was tuned to “all the fire department radio bands for basically the lower half of the state and one was a business band radio that certain people in this area use to communicate.” Id. at 142.
Blackden testified that in the early morning of August 25, 2010, he was awakened by an alert tone on his radio, indicating that there had been an automobile accident on Route 93. Id. at 148. Blackden got up and drove his re-purposed ambulance to the scene. When he arrived, he parked on the right side of the highway, at the edge of the pavement. The vehicle that had been involved in the accident was to Blackden’s left, in the median strip. At that point, “different rescue vehicles started showing up and [he] put on [his] gear, walked across the street, stood in front of the Penacook Rescue vehicle, and just started taking pictures of the scene.” Id. at 151. Blackden’s “gear” included a black firefighter’s “turnout coat” with yellow and white reflective bands, and a black firefighter’s helmet, on which Blackden had affixed the word “Photographer.” See Id. at 111-12, 116, 151, and 172. Blackden’s attire plainly created some confusion on the part of emergency responders at the scene. For example, the Canterbury Fire Chief testified that Blackden “blended in so well with our rescue crew that I didn’t know who he was at first. He looked like he was one of Penacook Rescue’s crew.” Affidavit of Chief Peter Angwin (document no. 44-17) at para. 7. See also Id. at para. 10 (“He stated that he was with Penacook or something about Penacook Rescue. I thought he said he was with Penacook Rescue.”).
At some point, Chief Angwin approached Blackden and asked if he owned the vehicle parked on the right side of the highway. Blackden told him he did. Because he was concerned that the location of Blackden’s vehicle posed a potential safety hazard, the Chief asked him to move it to the same side of the highway as the rescue vehicles. Blackden complied and drove his re-purposed ambulance to the left side of the highway, and pulled up behind a Concord fire truck. Blackden Deposition at 160. As he left the vehicle, Blackden activated the red “wig-wag” lights on the top rear of the vehicle. He also activated yellow “arrow” lights, as well as the vehicle’s emergency (brake light) flashers. Id. at 162.
As a freelance photographer, Blackden had been on the scene of several automobile accidents and fire emergencies. He was, therefore, aware of the fact that he should not interfere with the emergency responders or intrude into the “working scene.” Id. at 158. So, he typically tried to remain “outside the perimeter” of any accident scene he was photographing, and testified that it’s “pretty easy to tell from the way the [emergency] vehicles are parked” where that perimeter has been defined. “As long as you’re on the far side of [the emergency vehicles], that’s the outside of the scene.” Id. at 159. See also Affidavit of Peter Angwin at para. 15 (“It is common for an incident scene to be delineated by the presence of fire and emergency vehicles. These vehicles are often used as obstructions to prevent unauthorized access to an incident scene. When responding to incidents on the highways, it is our protocol to set up a safety zone by placing a fire engine or other apparatus approximately one hundred and fifty (150) feet away from the incident on the same side of the highway.”).
So, while he may have parked his vehicle “outside the scene, ” (i.e., immediately behind the Concord fire truck), Blackden plainly entered (and remained inside) that perimeter while he was taking photographs. See, e.g. Blackden Deposition at 151 (“I put on my gear, walked across the street, stood in front of the Penacook Rescue vehicle and just started taking pictures.”); 156 (same). Chief Angwin testified as follows:
I saw Blackden take a couple of pictures. He was approximately thirty-five feet from the vehicle. Ordinarily, I would not have allowed a member of the press or media to get that close to the vehicle. On the day of the incident, if Blackden was dressed in a shirt and a tie, I would have had him removed from the scene. Blackden was able to get that close to the vehicle because of the gear that he had on and because of what he had previously said to me [that is, something about being “with Penacook”].
Blackden did not have authority to be on the scene.
Affidavit of Peter Angwin at paras. 11 and 12.
Shortly after he moved his vehicle, Blackden learned that the driver of the automobile involved in the accident had died. He approached Chief Angwin and asked whether he wanted Blackden to take “extraction photos.” Blackden Deposition at 161. After the Chief responded “no, ” Blackden turned around, began walking back to his vehicle, and was confronted by Trooper Decker.
Trooper Decker had arrived at the accident scene at approximately 6:00 am, at which point he saw an “ambulance-like” vehicle parked at the rear of the scene, with its red lights activated in a “wig-wag” or alternating fashion. See Affidavit in Support of Search Warrant, Exhibit 1 to Decker Affidavit, (document no. 44-22) at para. 4. Trooper Decker further testified as follows:
Mr. Blackden was observed on scene as well [as personnel from Canterbury and Penacook Fire and Rescue]. He was attired in “turn out” gear: A protective firefighting coat and firefighter’s helmet. Additionally, he had a radio/scanner slung across his chest. He was also holding a full-sized digital camera. At the time he was first observed, Blackden was walking away from the crash scene, but still within the active scene.
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Upon being questioned, Blackden identified himself as being “with Penacook Rescue.” He further stated that he was “toned out to the scene by Penacook Rescue.” Blackden asserted that he was there to photograph the scene on behalf of Penacook Rescue, and that he was trying to get “extraction photos.”
Id. at paras. 9, 10. After determining that Blackden was not a member of the rescue team from either Canterbury or Penacook, Trooper Decker questioned Blackden about his presence at the scene. And, having been told by Blackden that he was “with Penacook Rescue, ” Trooper Decker asked Blackden for his credentials. See, e.g., Decker ...