## Facts

- Federal wildlife agents investigated Paul Berger for suspected wildlife-related offenses on the Bergers’ Montana ranch.
- Federal officers obtained and executed search warrants at the ranch in March 1993.
- Before execution, federal officers entered a written arrangement with television media entities and personnel allowing them to accompany officers and record the searches for broadcast.
- Media personnel participated in planning and were present during the warrant execution on the Bergers’ property, including in areas protected as part of the home’s curtilage.
- The Bergers did not consent to the media’s presence or recording during the search.
- The Bergers sued federal officers and media defendants, asserting a Fourth Amendment damages claim under Bivens and state-law claims including trespass and intentional infliction of emotional distress.
- The district court granted summary judgment to both the federal officers and the media defendants; the case returned to the Ninth Circuit after Supreme Court review and remand.

## Issues

1. Whether federal officers could be held liable for damages under Bivens for allowing media to accompany them during execution of a search warrant, or whether qualified immunity barred recovery.
2. Whether the media defendants could be treated as joint actors with federal officers and thus face Bivens liability for the alleged Fourth Amendment violation.
3. Whether summary judgment for the media defendants on state-law claims for trespass and intentional infliction of emotional distress was proper.

## Decision

- Affirmed summary judgment for the federal officer defendants based on qualified immunity.
- Reversed summary judgment for the media defendants on the Bergers’ Bivens claim, allowing the joint-actor theory to proceed.
- Reversed summary judgment for the media defendants on the Bergers’ state-law claims for trespass and intentional infliction of emotional distress.
- Remanded for further proceedings.

## Legal Principles

- The Fourth Amendment is violated when officers bring media or other third parties into a home (or constitutionally protected areas) during execution of a warrant when the third parties’ presence is not in aid of executing the warrant.
- Federal officers are protected by qualified immunity when, at the time of the challenged conduct, the unlawfulness of their actions was not clearly established.
- Private parties may be liable for constitutional torts under Bivens when they act jointly with federal officials in conduct that results in a constitutional violation.
- Private media defendants sued as joint actors are not entitled to qualified immunity in this context.
- Where nonconsensual media entry and recording accompany a search, those same allegations may also support state-law tort claims such as trespass and intentional infliction of emotional distress sufficient to defeat summary judgment.

## Conclusion

The Ninth Circuit held that federal officers who allowed media “ride-alongs” during a 1993 warrant search were immune from damages because the law was not clearly established, but the media defendants could still face Bivens liability as joint actors and could not obtain summary judgment on related state-law tort claims.


Berger v. Hanlon, 188 F.3d 1155 (9th Cir. 1999)