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The release of a videotape by Westchester County, N.Y., showing corrections officers arrested for abusing disability benefits, had a legitimate governmental purpose and does not violate the Fourth Amendment’s prohibition of unreasonable searches and seizures, a federal appeals court has ruled. Clarifying the standard for the controversial practice of “perp” walking, or parading arrestees before media photographers, the 2nd U.S. Circuit Court of Appeals said privacy interests of a defendant were outweighed by the government’s interests in informing the public about efforts to stop disability benefit abuse and in prompting people to come forward with information to aid an investigation. In Freeman v. The County of Westchester, 01-7457, Joseph Freeman and several other corrections officers were told to report to Department of Corrections (DOC) headquarters on July 12, 1999, where they were arrested, handcuffed and escorted through the parking lot in a procession that was videotaped by a county employee. Later that day, county officials released a copy of the videotape to the media. Southern District Judge Colleen McMahon rejected Freeman’s Fourth Amendment claim. Freeman challenged the release of the tape as unconstitutional in light of the 2nd Circuit’s first decision on perp walks, Lauro v. Charles, 219 F. 3d 202 (2000). In Lauro, two hours after the defendant was arrested and brought to a police station, a detective handcuffed him, walked him outside of the station, drove him around the block and then escorted him back to the station, all for the benefit of a TV crew. The Lauro court held that the walk violated Lauro’s Fourth Amendment rights, noting that any “legitimate state interest in accurate reporting of police activity … is not well served by an inherently fictionalized dramatization of an event that transpired hours earlier.” But the 2nd Circuit said Freeman’s case was distinguishable from Lauro. In a decision authored by Judge Fred I. Parker before his death in August, the court took note of the “recent surge in ‘executive perp walks’ ” that has featured “ accused white collar criminals in designer suits and handcuffs.” “Whether the accused wrongdoer is wearing a sweatshirt over his head or an Armani suit on his back, we suspect that perp walks are broadcast by networks and reprinted in newspapers at least in part for their entertainment value,” Parker said in a decision released Tuesday. “Yet, perp walks serve the more serious purpose of educating the public about law enforcement efforts.” FOURTH AMENDMENT Parker first said a “seizure” had occurred within the meaning of the Fourth Amendment when Freeman was arrested and when the video was made. The creation and dissemination of the videotape also implicated Freeman’s privacy interests as protected by the Fourth Amendment, he said. However, while Freeman’s expectation of privacy while on DOC grounds was “at least equal to that of Lauro,” the judge said, the Lauro case turned, not on the “magnitude of Lauro’s privacy interest” but the “lack of any legitimate purpose” behind the staged walk. For Freeman, the judge said, “The government purposes that were rejected in Lauro are valid in this situation because the County videotaped Freeman as he was being legitimately transported pursuant to a lawful arrest.” The circuit court was careful not to suggest that “government actors have free reign to use videotape or other potentially overly intrusive means to achieve the government purpose enumerated above.” But Parker said the “minimal expectation of privacy in the parking lot,” and the fact that the conduct of the arresting officers “did not unreasonably exceed the scope of what was necessary” to arrest Freeman and serve its legitimate interests, rendered the videotaping and the release of the tape constitutional. Robert David Goodstein and Paula Johnson Kelly of Goodstein & West in New Rochelle represented Freeman. Deborah A. Porder, of counsel, and County Attorney Charlene M. Indelicato represented the county.

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