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Television producers did not defame three Jamesburg, N.J., policemen by secretly filming them in an apparent case of racial profiling and broadcasting the results, the Appellate Division ruled May 21. Although the filmed traffic stop was the result of a staged incident, designed to test whether young, black males were likely to be pulled over in Jamesburg, the story could not be called defamatory because the stop was indeed improper, the judges ruled. The panel also found no violation of the state’s wiretap laws, nor of the police officers’ right to privacy that might support an action in tort, Hornberger et al. v. American Broadcasting Companies Inc., et al., A-783-00T2. Joan Martelli and Anna Sims Phillips, producers of the ABC-TV news magazine program “PrimeTime Live” arranged for the three black males to cruise through Jamesburg in a Mercedes Benz on June 28, 1996. The men, Raymond Campbell, William Armstrong and Jason Williamson, were stopped for not using a signal light and because Campbell, a passenger, had no identification. They were ordered out of the car and frisked while the car was searched. Unknown to the police officers, Louis Hornberger, Robert Tonkery and James Mennuti, cameramen were filming and recording the stop and search, as well as the officers’ conversations. At one point, Tonkery remarked that there was “probably dope” in the car, even though there was no evidence of drug use. The program, “Driving While Black,” was aired Nov. 27, 1996, prompting the officers to sue for $3 million in damages. They claimed they were defamed by being unfairly portrayed as being racist. They said the secret videotaping violated the state Wiretapping and Electronic Surveillance Control Act, N.J.S.A. 2A:156A-1 et seq., and their privacy rights under the state and federal constitutions. They said they did not consent to the recording and had a reasonable expectation that their conversations were private. Superior Court Judge Bryan Garruto in Middlesex County dismissed the suit on summary judgment, and the officers appealed. Appellate Division Judges Michael Patrick King, Mary Catherine Cuff and Barbara Byrd Wecker had no trouble disposing of the defamation claim. Under New Jersey case law, police officers are considered public officials and thus must show that a news organization knew information was false and deliberately printed it or broadcast it anyway. More problematic were the claims of violation of privacy rights and the wiretapping act. Other courts around the country have recognized a tort of intrusion based on covert videotaping in semi-private surroundings like an office, e.g., Sanders v. American Broadcasting Companies Inc., 928 P.2d 67 (1999). But King wrote that the circumstances in this case were different. “Here, the location of the conversation between Hornberger and Tonkery was more akin to an open, accessible space than an enclosed, indoor room,” he wrote. The search of the car occurred on the shoulder of a busy public highway. Automobiles and other means of transportation are afforded a lower expectation of privacy than homes, offices and other structures. “The four doors of the Mercedes were wide open while Hornberger and Tonkery were conducting their search, rendering the vehicle even more exposed. The officers were public servants performing their police function in public view.” King cited two cases — Angel v. Williams, 911 F.2d 1573 (11th Cir. 1990), and State v. Flora, 845 P.2d 1355 (Wash. Ct. App. 1992) — in which courts have held that police officers do not have a reasonable expectation of privacy when dealing with suspects. “Here also, plaintiffs, as police officers on duty, searching a vehicle on a public street, cannot expect the same level of privacy as a private citizen in a private place,” wrote King. “Although the officers did not consent to the recording, they did not have a reasonable expectation of privacy while in the targeted vehicle under the circumstances.” Neville Johnson, a lawyer representing the officers, says the ruling was misguided. “I think, assuming we go to the New Jersey Supreme Court, the intelligent jurists on that panel will see the correctness of the arguments we have made,” says Johnson, a partner at Los Angeles’ Johnson & Rishwain. “They are making new law that is very controversial.” He says a decision as to whether to appeal has not been made. ABC’s lawyer, Kevin Baine, a partner at Washington, D.C.’s Williams & Connolly, referred questions to Jeffrey Schneider, vice president of ABC’s news division. Schneider told the Associated Press that the network stood by its story.

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