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Hornberger v. American Broadcasting Companies

May 21, 2002

LOUIS HORNBERGER, ROBERT TONKERY AND JAMES MENNUTI, PLAINTIFFS-APPELLANTS,
v.
AMERICAN BROADCASTING COMPANIES, INC., ABC HOLDING COMPANY, JOAN MARTELLI, PHYLLIS MCGRADY, JOHN W. ZUCKER, JOHN QUINONES, RICHARD WALD, JASON D. WILLIAMSON, RAYMOND B. CAMPBELL, DIANE E. ARMSTRONG, WILLIAM ARMSTRONG, DIANE SAWYER, ROBERT LANGE, ANNA SIMS PHILLIPS, CRAIG HAFT, JEFFREY KLEINMAN, JACK NORFLOSS, RICHARD WHITE, AND MITCHELL WAGONBERG, AND ERIC WAGONBERG, DEFENDANTS-RESPONDENTS.



Before Judges King, Cuff and Wecker. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-10768-97

The opinion of the court was delivered by: King, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 27, 2002

On June 28, 1996 at 9:30 p.m., plaintiffs, police officers in Jamesburg, stopped a Mercedes Benz in which defendants Raymond Campbell, William Armstrong and Jason Williamson, three young African-American men, the "testers," were riding. Because Williamson, the driver, had changed lanes without signaling, plaintiffs demanded identification of the testers. When Campbell, the back-seat passenger, said that he did not have any identification, the officers ordered the three men out of the car, frisked them, searched the car's interior, found no contraband, and released them. Defendant Diane Armstrong, Jason Armstrong's mother, owned the Mercedes.

Defendants Joan Martelli and Anna Sims Phillips, producers of PrimeTime Live, a television program broadcast by defendant American Broadcasting Companies (ABC), had arranged for the testers to cruise in an expensive car to find out if the police would stop them. The incident was surreptitiously recorded with cameras concealed in the Mercedes and also in a van which followed the Mercedes. Defendants Richard Wald, an ABC vice president, and John Zucker, ABC's attorney, approved the use of the hidden cameras.

With the assistance of defendant Robert Lange, the senior producer, Martelli drafted a script for a PrimeTime Live broadcast entitled "DWB" (Driving While Black). Defendant Phyllis McGrady, executive producer, approved the script which was broadcast on national television in November 1996. Defendant John Quinones, an ABC correspondent, appeared on the program and defendant Diane Sawyer was a co-anchor.

Plaintiffs alleged that (1) the broadcast was defamatory and portrayed them in a false light; (2) a portion of the recording of a conversation between two of the plaintiffs while they were conducting the search violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34; and (3) defendants fraudulently procured the tape of the episode.

Plaintiffs appeal from the dismissal by summary judgment, contending that the judge erred in ruling that (1) on the defamation claim, plaintiffs had neither consent nor probable cause to search the car, and the ABC defendants did not produce and publish the broadcast with actual malice; (2) on the electronic surveillance claim, plaintiffs had no expectation of privacy while they were searching the car; and (3) plaintiffs did not prove an actionable fraud claim. We agree with the judge's disposition and affirm.

I.

The "DWB" Broadcast -- November 27, 1996

We first summarize the factual record before the Law Division judge when he ruled on the motions for summary judgment. After a three-minute introduction, which included other topics on the PrimeTime Live program that night, the "DWB" segment ran for about twelve minutes. The broadcast began with Sawyer's account of recent rioting in Florida when police killed an African-American teenager during a routine traffic stop. Sawyer said that police target African-Americans when they are driving "simply because they're black," and three delegates at the Black Caucus convention in Washington, two of the testers in this case, and Professor Charles Ogletree of Harvard Law School concurred. The broadcast first showed a white officer in South Carolina who had stopped a black woman for speeding, pulled her out of her car, yelled at her to get down, and pushed her face to the ground. Then there was a scene of a funeral of a young black man who, according to Quinones, "was suffocated while being held down by police near Pittsburgh during a traffic stop. He'd been driving a Jaguar . . . . "

Quinones said that these were "extreme cases" and showed videotapes depicting more common examples: officers in Volusia County, Florida, stopping black motorists for minor traffic offenses; several times they asked for permission to search the cars, without any apparent cause.

Quinones then announced that "PrimeTime decided to try a little experiment" in "the all-American small town of Jamesburg, [central] New Jersey." (Described in Appendix A). He explained the hidden cameras, identified the testers, noted the time about 9:30 p.m., and said that the testers were "driving carefully through town on our second night in Jamesburg. This time, within minutes, they're pulled over." The broadcast showed the testers cruising in the Mercedes, and, after the car had stopped, Officer Hornberger approaching Williamson, the driver, and explaining that he had changed lanes without signaling. The broadcast did not identify the plaintiffs-officers by name. The narrative refers to them as "New Jersey Patrolmen."

The broadcast showed Hornberger asking the passengers for identification. The film showed that when Campbell, the rearseat passenger, said that he did not have any, Hornberger asked him to "get out of the vehicle, please." While the film showed the officers searching the car, Quinones' narration stated that "they were stopped for a minor traffic violation" and "separated, questioned, even frisked . . . . And their car is searched, although police never asked permission."

Professor Ogletree intervened in the narration, stating that a traffic violation was "not a basis" to conduct the "complete search, going into packages," which was occurring. Quinones explained that Ogletree was maintaining that the officers were "conducting an illegal search."

The film showed Hornberger attempting to open a cosmetic case in the back seat of the car, remarking that it was locked, and Officer Tonkery saying, "probably dope." Ogletree commented: "Why would he say that? Hunch? Evidence? Because they're black men, probably, in a late-model car at night and that's all he needs. The rest he can fill in the blanks. It's sad."

Jamesburg Police Chief Knowles then said: "It's called profiling." In response to Quinones's questions, Chief Knowles explained that profiling was "a law enforcement term"; it "goes on every day, every night in every town, everywhere in the United States." Knowles said he did not "agree" with profiling and saw no reason to suspect "three young black men in a Mercedes." Nevertheless, he approved the search, which was "incidental to the individual officer's protection" and thus "constitutionally okay." When asked whether the officers should have requested permission to search, Knowles conceded, "it's a good point. I think it could be borderline."

Quinones questioned the reason for the initial stop, stating: "On another night we watched this same intersection for three hours . . . . We counted 260 cars at that intersection and of those, 223 also failed to turn on their blinkers, including four police squad cars . . . . And they weren't . . . pulled over." Knowles said: "I don't have an answer . . . . [T]here's a possibility that this fit the criteria of profiling." Knowles admitted that Tonkery's assumption that the testers were carrying "dope" was "definitely inappropriate."

Quinones, continuing the narrative, observed that "where lawsuits have been filed," there was evidence that 62% of drivers stopped in Volusia County, Florida were black; 42% of drivers stopped in southern New Jersey were black; and 72% of drivers stopped in northern Maryland were black. "Remember, only about 12 percent of the population is black."

Quinones suggested that stopping a few innocent people might be "a small price to pay . . . to get drugs off the streets." Ogletree disagreed because "it's not going to get drugs off the street. . . . And it's not a small price to pay for my dignity and my respect and my self-esteem." Finally, Quinones related that the testers were released after twenty minutes, without a traffic violation summons. When Quinones inquired about an apology, Knowles said: "Police officers don't apologize for doing their job."

Sawyer closed the broadcast by saying that courts were "increasingly . . . giving police the benefit of the doubt when it comes to traffic stops." She reported that the Volusia County, Florida case had been dismissed and an appeal by the drivers was pending. She stated that African-Americans were developing "counter-strategies," such as driving "conservative cars" or placing a "baby seat in the back as a prop."

Martelli certified that she conducted substantial research on racial profiling before she produced "DWB." She read many articles and judicial opinions and interviewed law enforcement officials, attorneys and victims. The material she read included State v. Soto, 324 N.J. Super. 66 (Law Div. 1996), in which the court relied on statistics of a disproportionate number of traffic stops of African-Americans on a southern section of the New Jersey Turnpike. Martelli and the others responsible for the production "felt that this was an important social issue" which met ABC's criteria for using concealed cameras. Phillips had contacted the three testers; she knew their families socially, and Diane Armstrong was her cousin. The testers had been cruising around for about twenty hours on four other evenings in various towns in central New Jersey before they were stopped in Jamesburg.

The Reason for the Stop

According to Hornberger, the stop occurred on June 28, 1996 at the intersection of County Route 522 and Forsgate Drive. Both the police car and the testers' vehicle were on Route 522 and had stopped at the traffic light at Forsgate Drive. At that intersection, traveling in that direction, the right lane was for turning right and the left lane was for going straight. Soon after, at a second traffic light, the right lane was for going straight and the left lane was for turning left. In order to continue straight ahead, a vehicle had to move quickly from the left lane to the right lane after the first traffic light.

Tonkery explained that the Mercedes went straight while traveling in the left-turn-only lane at the second light, "drove over a double-yellow line and a painted median," and "proceeded in front of me," causing Tonkery to brake hard in order to avoid an accident. According to Tonkery, the driver failed to use a signal for the lane change, failed to keep right, and disregarded a marked lane.

Tonkery admitted that investigation for possible wrongdoing was "one element of the stop," and he was "looking for a reason to stop the car." He explained that he had seen the same car with the same occupants two days before and knew that another officer thought that the car was "suspicious." The other officer, Sergeant Paul Karkoska, told Hornberger that the Mercedes had been seen driving around an area known for drug sales, and to "keep an eye on it."

Karkoska confirmed that, while on an investigation in an unmarked, stationary vehicle, he had seen the Mercedes in a residential area known for drugs. After seeing the Mercedes pass him several times, he became suspicious because he was not familiar with it.

The Stop, Removal from the Car, and Frisks

Hornberger first said that when the officers initially stopped the Mercedes, and before talking to the driver, to insure his safety or "acquire a safe passage to speak to the operator of the vehicle," as he put it, he asked the rear-seat passenger, Campbell, to place his hands in plain sight. Campbell did not comply; he asked, "Is that necessary?" in an allegedly arrogant manner. Hornberger repeated his request and Campbell again refused to show his hands. After a third request, Campbell grunted in disgust and showed Hornberger his hands. Hornberger described Campbell as looking mean and angry. After reviewing the tapes Hornberger concluded that this exchange with Campbell occurred after he had asked the testers for their identification and after Armstrong, the front seat passenger, left the car.

Hornberger claimed that the tape revealed this incident, but his voice was "faint." Hornberger admitted that, apparently when viewing the tape from the sunroof camera, he could not hear his request that Campbell show his hands. However, Hornberger could hear Campbell say, "It's not necessary."

This exchange did not show up at any time on the film recorded by the rear view mirror or sunroof cameras. The film showed Hornberger approach the driver, Williamson, who asked if there was a problem; Hornberger responded, as he recalled in his deposition, that Williamson "failed to signal a lane change." Hornberger then asked Williamson for his license, registration and insurance card; Williamson produced them, and Hornberger pointed out that the insurance card had expired thirteen days earlier. Williamson looked for a valid insurance card. He could not find one. Hornberger testified he did not consider the insurance card "a major problem."

After this exchange, Tonkery asked Hornberger to get identification from the occupants of the Mercedes, which Hornberger did. This was the first time Hornberger addressed Campbell. Armstrong produced his identification, but, after a second request, Campbell, in the back seat, touched his pocket and responded: "I left mine at home."

Hornberger then ordered Armstrong out of the car; Hornberger explained that he did so because Campbell did not produce identification and he wanted to ask Armstrong for Campbell's name. Armstrong recalled being "patted down." Hornberger explained that a frisk or a "quick patdown" was standard police procedure when a person is asked to leave a car, because of the officer's safety concern.

Campbell and Williamson remained in the car while the officers were frisking Armstrong. Campbell, watching them from the rear window of the car, twice said to Williamson, "that's not necessary." Williamson also observed that one of the officers had produced a club. No officer was present during this conversation between Campbell and Williamson; Hornberger admitted he was "a little ways back" behind the car when Campbell said this. Clearly, Campbell was not responding to Hornberger, who also admitted that Campbell's left arm was on the window, in plain view, at this time. Hornberger conceded in testimony it was possible that Campbell did not hear his request to place his hands in view, or that he did not make that request three times. We could not hear the request on the tapes.

After a short time, Officer Mennuti, also a plaintiff, ordered Campbell out of the car. Campbell recalled responding "[t]his ain't necessary." Campbell admitted that he was "[s]howing off for the camera." Mennuti recalled that when Campbell left the car he said: "I don't like cops." Campbell denied making this statement but Williamson did hear Campbell say that all cops were racists. The tapes did not record either of these statements. Mennuti explained that Campbell's "demeanor" justified asking him to get out of the car. Campbell denied that he was obnoxious or surly, or that he was trying to antagonize the officers.

Mennuti asked, "What are you guys doing down here?" The answer was inaudible but Mennuti recalled that Campbell answered, "just cruising." Hornberger then returned to Williamson, who remained in the driver's seat, and asked him the name of the rear seat passenger (Raymond). Williamson answered "Raymond," and Hornberger said that Armstrong said that it was "John." Armstrong admitted that he made a mistake about Campbell's name. The two had only recently met. Soon after this, Hornberger ordered Williamson out of the car and frisked him.

The Search of the Car

The videotapes show Hornberger first, and Tonkery joining him later, thoroughly searching the car. The search was extensive, into every crevice and area of the passenger compartment. One of the officers asked "What's in the bag, forties," referring to beer and indicating a paper bag in the back seat. The answer is inaudible, but one of the testers, apparently Campbell, said, "find out." Campbell apparently also said that it was water, but this was not audible either. The officer responded, "water. All you had to do is answer me." The officers later looked into the bag, which contained a water bottle.

Tonkery explained it was unnecessary to issue a summons because this was "an informative stop" for the driver. Chief Knowles explained that the county had recently modified the intersection where the testers were stopped and the police were issuing warnings but not summonses. No tickets issued for careless driving, unsignaled lane change, or the absence of an insurance card.

The Views of Ogletree and Knowles

Martelli arranged for Quinones to interview, on camera, Harvard Law School Professor Ogletree on September 4, 1996 and Chief Knowles on September 20, 1996, after showing them an edited version of the films of the stop and search which she had prepared. Martelli believed that the excerpts she prepared "showed the most significant events." Martelli stated that she edited the tape, in part, because of its length and her program's time demands. Much of the original tape contained periods when nothing occurred or "dead space," as Quinones put it. Ogletree and Knowles both realized that the tape had been edited.

In his deposition, after he saw "the entire tape of the stop" Ogletree maintained his initial position that the search was illegal and appeared to be racial profiling. He did not think that the editing of the tape misled or deceived him. He commented upon the absence of any evidence of consent to search the car. Ogletree did not think the answer, "check it out," to the officer's question whether the paper bag contained "forties," was permission to search the car or even the bag. Nor did Ogletree "consider the circumstances to be such . . . that the officers were endangered." Ogletree concluded that the officers had no right to search the vehicle even when confronted with: (1) a tip from another officer that the same car was "driving around" and "suspicious"; (2) no valid insurance card; (3) Campbell's lie that he had no identification and confusion about his name; and (4) Campbell's acting "in a totally surly manner to the police officers." Ogletree commented that "all of us look surly when we're stopped by the police."

When another factor was added, that the testers had no destination, Ogletree responded: "[T]hat is the most innocent of statements possible in America." Ogletree said that he cruised around with no destination when he was a student, and his children cruise around on Friday and Saturday nights. When confronted with Campbell's statements that "all cops are racists" and "I don't like cops," Ogletree conceded that, at that point, "the officers could reasonably have concern for their safety."

II.

This is the procedural context in which the case comes to us. Plaintiffs, the police officers, filed a Law Division complaint in March 1998 and an amended complaint in August 1999. They alleged that PrimeTime Live was a "tabloid television show" which "pander[ed] to voyeuristic desires and other base emotions," demeaned and degraded others, invaded their privacy, and was a notorious user of "[h]idden cameras, ambush interviews, trespass, spying, false impersonation, and stalking." Plaintiffs accused defendants of interfering with police business while "manufacturing" a story and a controversy about racial profiling.

Count One of the amended complaint alleged that the November 1996 broadcast of PrimeTime Live "DWB" falsely stated the car was searched illegally and without consent. It contained incorrect statements by Professor Ogletree that the search was illegal and racially motivated because the version of the film shown to Ogletree had material facts deleted. Martelli had shown Ogletree and Chief Knowles only an edited version of the film of the incident, recorded their opinions, and used excerpts of these recordings in the broadcast. The program allegedly contained an inaccurate statement of Knowles, "it's called profiling," taken "out of context to attribute it to the actions of plaintiffs."

Plaintiffs complained that the broadcast compared them to "errant police officers beating up others and generally running amuck [amok]." They said that the broadcast falsely "accuses and implies that [plaintiffs] are racists and profilers."

The amended complaint alleged that the ABC executive defendants (all of the ABC defendants except Haft, Kleinman, Norfloss, White and the Wagonbergs, who were ABC's camera technicians) prepared the broadcast with knowledge of or reckless disregard of its falsity. They "set up" the story with hidden cameras, which "per se accuse a person of wrongdoing," and they did not afford plaintiffs an opportunity to respond. Plaintiffs asserted that the ABC executive defendants maliciously injured their reputations, damaged their employment prospects, and subjected them to nationwide humiliation and ridicule, resulting in emotional distress. In Count Two of the amended complaint, plaintiffs accused the testers and the ABC executive defendants of placing them in a false light. Count Three of the amended complaint alleged that the defendants violated the New Jersey Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 to -34, by intercepting plaintiffs' oral communications during the search of the interior of the vehicle.

Count Four of the amended complaint accused the testers and the ABC executive defendants of fraud by failing to disclose the purpose of the stop and the hidden cameras. Plaintiffs also claimed Campbell, the rear-seat passenger, of fraudulently stating that he did not have identification. Plaintiffs demanded damages, costs, an apology, an opportunity to respond on ABC, destruction of the tapes, and forfeiture of defendants' surveillance devices.

All defendants moved for summary judgment. Plaintiffs opposed both motions and cross-moved for summary judgment on their electronic surveillance claim. Judge Garruto heard oral argument on August 4 and issued a written opinion on August 25, 2000. He granted summary judgment to all defendants on all of plaintiffs' claims. As noted, plaintiffs claim that the judge: (1) improperly dismissed the defamation and false light claims, (2) erred in dismissing the electronic surveillance claim, and (3) erred in dismissing the fraud claim.

III.

Plaintiffs contend that the judge erred in dismissing their defamation and false light claims because there were genuine issues of material fact. Plaintiffs assert that, contrary to the judge's findings, the statement in the broadcast that there was no consent to search the car was untrue. Plaintiffs contend that this statement in the broadcast, together with (1) Ogletree's opinion that the search was invalid, which was based on incorrect facts, (2) the omission of exculpatory factors, and (3) the implication that the stop and search represented racial profiling and plaintiffs were racists, constituted defamation and cast them in a false light. Plaintiffs assert that they produced substantial evidence of defendants' actual malice -- that defendants' knew that their representations were false or they recklessly disregarded their falsehood.

The judge found that plaintiffs did not obtain consent to search the vehicle. The judge found, despite Tonkery's claim that he obtained consent, that "Hornberger already [had] initiated the search" without asking for permission. The judge determined that the initial stop was warranted but the subsequent search of the testers and the Mercedes was "sorely lacking of justification" and without probable cause. The judge found no evidence to support plaintiffs' allegations they reasonably feared for their safety.

Regarding Ogletree's opinion that the search was improper, the judge recognized plaintiffs' argument that the "heavily edited videotapes" of the stop shown to Ogletree gave defendants "ample reason to doubt the accuracy of Ogletree's analysis." The judge did not discuss this argument further but commented there was no evidence that the tapes "were altered in any manner." Plaintiffs also contend that the judge erred in finding no evidence that the tape was edited. However, the judge did not find that the tape was unedited. He found no evidence that the tape was altered.

Summary judgment is appropriate if

there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. [R. 4:46-2(c).]

In Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)), the Court explained:

The "judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a "genuine" issue of material fact . . . . The import of our holding is that when the evidence "is so one-sided that one party must prevail as a matter of law," the trial court should not hesitate to grant summary judgment.

Defamation is a statement that is "false, communicated to a third person, and tends to lower the subject's reputation in the estimation of the community." Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 164 (1999). Because police officers are public officials, Costello v. Ocean Cty. Observer, 136 N.J. 594, 613 (1994), plaintiffs must prove that the objectionable, false statements, which related to their official conduct, were published with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S. Ct. 710, 11 L. Ed. 2d 686, 706 (1964). This standard protects the freedom of expression on public questions guaranteed by the First Amendment. Actual malice is knowledge that the statement was false or reckless disregard for its truth. Ibid.; Lynch, 161 N.J. at 165. Summary judgment is favored in defamation cases to encourage comment on matters of public concern. Lynch, 161 N.J. at 169. Plaintiffs' burden of proof for each of the elements of defamation is by clear and convincing evidence. Rocci v. Ecole Secondaire, 165 N.J. 149, 159 (2000); Lynch v. N.J. Educ. Ass'n, 161 N.J. 152, 165 (1999); Newman v. Delahunty, 293 N.J. Super. 491, 498-99 (Law Div. 1994), aff'd o.b., 293 N.J. Super. 469 (App. Div. 1996).

Plaintiffs also claim that the broadcast invaded their privacy by placing them in a false light. A false-light tort consists of publication of a falsity which significantly misrepresents the plaintiff's "character, history, activities or beliefs." Romaine v. Kallinger, 109 N.J. 282, 295 (1988). The publication must be "highly offensive to a reasonable person" and must be made with knowledge or reckless disregard of its falsity. Kallinger, 109 N.J. at 294 (quoting Restatement (Second) of Torts ยง 652E (1976)). As plaintiffs concede and the judge found, the actual malice standard applies to the false light claim to avoid ...


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