Emergency Scene Photos and Expectation of Privacy in Gated Communities

Today’s burning question: I serve as the photographer for my department. In my station’s first due district we have a gated community that has two access points, a main entrance with a guard shack and an second unmanned gate that we can activate by a siren. The development is pretty well shielded by trees and fences. In the event of a response into the development, would the residents have a greater expectation of privacy from photo-taking since the area is gated?

Answer: This is a very good, yet complicated, question with no easy answer. The short answer is the taking of the photos/video is probably legal, but the use of the photos/video is what is more likely to get you into trouble.

Because of the complexity of the issues I bounced the scenario off two other attorneys, both firefighter-attorneys. The first is my Dad, John Varone, who also has a broad background in private homeowner association law. The other is my good friend Chip Comstock. What follows is a summary of our collective thoughts on the question.

First, it is important to recognize that the problem is not simply whether someone in the community has an “expectation of privacy” that could be violated, although that certainly is part of the equation.

There are actually two questions associated with emergency scene photography, and the distinction is often missed in favor of the very direct question you asked: does the person photographed have an expectation of privacy. The two questions are:

1. Is the taking of the photos/video legal?

– does the taking of the photos invade any expectation of privacy or other legal requirement

2. Is the use of any photos/video legal?

Each question needs to be analyzed separately because each has its own subset of legal quagmires. All too often a judge/attorney dealing with a particular case does not draw this sharp distinction – and the issues get blurred into one confusing discussion centering on expectations of privacy. Breaking it down allows us to consider the issues separately.

The first question – whether the taking of the photo is legal – implicates 4 sub-issues:

(a) the 4th Amendment (assuming the firefighter taking the photo/video is a governmental employee)

(b) trespass law

(c) the tort of invasion of privacy

(d) state laws that regulate where photos may be taken.

From the perspective of the 4th Amendment, trespass law, and invasion of privacy – if the firefighter/governmental employee is illegally present in the gated community – there is the potential for a 4^th Amendment violation, trespass action and perhaps even an invasion of privacy action as well. However, assuming you are talking about being in the gated community on an emergency run, none of those concerns would likely prevent the taking of work related photos.

Digging a little deeper, while someone in a gated community arguably has an increased expectation of privacy compared to someone who lives on a public street – that expectation is not an absolute. In fact nowhere would someone have a greater expectation of privacy than in the confines of their own home – gated or not. Yet even in one’s own home there are limits to the expectation of privacy.

For example when a governmental agent has “exigent circumstances” that justify a warrantless entry into someone’s home (including the well known the fire scene exception) the entry is legal. Once there lawfully – the homeowner’s expectations of privacy are clearly diminished.

A good example of how someone’s expectations of privacy are changed once a governmental agent enters are the cases where a firefighter lawfully enters a dwelling to extinguish a fire, finds evidence of a crime (let’s say drugs or explosives) and asks a police officer to enter to seize the evidence. In such a case, courts routinely find that the homeowner’s expectations of privacy are not violated by the warrantless entry of the police officer.

The legal theory is that the entry by the police officer causes no greater a violation of the homeowner’s expectations of privacy than the original entry by the firefighter. Said another way the original entry extinguished the homeowner’s expectations of privacy. CAVEAT: The factual detail in many of these cases make them subject to strenuous argument in court. Reasonable minds may differ on how the specific facts in a specific case may cause it to be decided. My point is simply this: expectations of privacy are altered by the reality of a governmental agent being lawfully in a place where someone may otherwise have an expectation of privacy.

In my opinion it is not a 4th Amendment violation, nor trespassing, nor an invasion of privacy for a governmental agent who is lawfully in a location to film what he/she can see with his/her own eyes. There is no greater violation of a person’s expectation of privacy by a governmental agent recording what he/she has a legal right to see.

The last of the four sub-issues – state laws that regulate photo taking – can limit the right of responders to take photos in certain locations. Some states prohibit photo taking in locations such as bathrooms, bedrooms, locker-rooms, etc. without the prior written consent of the person being filmed. The state of Illinois prohibits taking someone’s photo/video in their residence without their permission:

720 ILCS 5/26-4 (a-5) It is unlawful for any person to knowingly make a video record or transmit live video of another person in that other person’s residence without that person’s consent.

The Illinois law has an exception for police officers (think bodycams), but that law does not extend to fire and EMS. New Jersey and Connecticut have laws that limit the ability of police, fire and EMS to take photos of victims, although both allow them for business related purposes pursuant to a policy.

None of us are aware of a law regulating photo-taking inside gated communities. In the absence of a state law like Illinois, NJ or Conn. – I think the taking of photos/video in a gated community, or even inside a home in a gated community, would be legal provided the firefighter is lawfully present and the photos/video are work related. BTW – the department would be well advised to have a policy that addresses photo-taking… just sayin…

 

The second big question – and the more difficult one – is: can the photo/video be used legally? The answer is yes it can… but it can also very easily violate someone’s expectations of privacy. This is where firefighters and fire departments can easily get themselves in trouble.

The big concern with regard to the use of the photos would be four separate torts that all fall under the umbrella of invasions of privacy. The four torts are:

1. Appropriation of Another’s Name or Likeness for Commercial Purposes
2. Public Disclosure of Private Facts
3. False light Invasion of Privacy
4. Intrusion Upon the Seclusion

It would be beyond the scope of this post to fully discuss how these torts can apply to photos taken in a gated community, but firefighters would be well advised to understand that one of the key concepts underlying invasions of privacy is that the violation must be highly offensive to the reasonable person.

So how can any photos/videos be used without running afoul of one of the four invasion of privacy torts? The answer will probably surprise you: public records!!!

When a public employee takes a photo about a work related matter in the course of his/her employment, chances are he/she has created a public record. As your fire department’s official photographer, chances are all of the photos you take on behalf of the department would be considered public records.

Most public records laws have a list of exclusions that allow a governmental agency to withhold certain records for specified reasons. Barring a photo fitting into one of the various exceptions allowed by law, the photos you take at an emergency scene would probably be public records that the public would have a right to. Other firefighters would also have a right to them as well. Thus, someone in a gated community who objected to a fire department’s use of a photo of their house or property would have a tough time claiming that their right to privacy was violated. IMHO, it would be relatively difficult for someone to claim they had an “expectation of privacy” in something that constitutes a public record.

Having said that, one common exception to public records laws that firefighters need to be aware of are records “the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”. IMHO a clearly unwarranted invasion of personal privacy is much more likely to occur when the photo includes the image of a recognizable person as opposed to property.

Notice a lot of the terms here seem to overlap: expectations of privacy, highly offensive to the reasonable person, and a clearly  unwarranted invasion of personal privacy. One theme from the discussions I had with my Dad and Chip is that photographers and fire departments need to exercise common sense with regard to their release of photos and videos from emergency scenes. There is a slim line indeed between documenting an incident and needlessly glorifying someone’s tragedy for your own purposes.

So to wrap this long winded discussion up – and to sound like a broken record – fire departments that allow firefighters to take photos and video – need to have a strong policy to manage (1) photo taking and (2) the release and use of those photos. That – to me – is the kind of common sense that is lacking… even more so than the lack of common sense displayed by those taking and sharing the photos in the absence of a policy.