Berger v. Hanlon

In 1993, federal law-enforcement authorities entered a written agreement with Cable News Network, Inc., and Turner Broadcasting System, Inc. (media) that permitted the media to accompany federal agents (agents) executing a warrant to search the ranch of Paul and Erma Berger (plaintiffs) for evidence of possible environmental crimes. The media sought footage of the search for their television programs, and the federal government welcomed the publicity this would bring to its crime-fighting efforts. The Bergers alleged the agents gave the media information about the warrant that was supposed to remain under seal until the search was completed. The media videotaped a pre-search gathering of agents discussing the execution of the warrant, and the media’s cameras recorded a caravan of the agents’ vehicles approaching the Bergers’ ranch. One of the agents was equipped with a hidden microphone, which transmitted a live audio feed to the media of the agent’s conversation with the Bergers. The Bergers were not told that the agent was wearing a microphone or that the video cameras visible during the search were the media’s. At times, the agents engaged in tough talk with the Bergers, which appeared to be mainly for entertainment purposes. The Bergers filed a Bivens claim against the agents and the media, asserting that (1) the agents violated the Bergers’ Fourth Amendment rights by allowing the media to record the search and helping the media obtain dramatic material; and (2) the media, as government actors, should be liable for that violation. The district court ruled that the agents had qualified immunity and that the media were not government actors for Bivens purposes. The Bergers appealed to the United States Court of Appeals for the Ninth Circuit.