Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 18, 2008

U.S. District Judge Allows IIED Claim Against NBC "To Catch a Predator" To Go Forward

In Conradt v. NBC Universal, the U.S. District Court for the Southern District of New York refused to dismiss NBC's motion to dismiss the plaintiff's suit for intentional infliction of emotional distress and two civil rights claims based on its actions in working with local law enforcement during filming of an episode of its television series "To Catch a Predator." Plaintiff is personal representative of her brother's estate.

As the district judge indicated, "On November 5, 2006, Louis William Conradt, Jr. ("Conradt") -- an assistant district attorney in Texas -- shot himself in his home as he was about to be arrested by the police for attempting to solicit a minor online. Waiting outside the house were members of the cast and crew of the national televison news show Dateline NBC ("Dateline"). They were there to film Conradt's arrest for a segment of "To Catch A Predator" -- a show that works with local police departments and an on-line "watchdog" group called Perverted Justice to identify and arrest "sexual predators." Apparently unable to face the humiliation of the public spectacle that faced him, Conradt took his own life. In this case, Conradt's sister, Patricia Conradt, sues defendant NBC Universal... alleging that Dateline is responsible for her brother's death and the harm to his reputation and "good name." On behalf of herself and his estate (the "Estate"), she seeks in excess of $ 100 million in compensatory and punitive damages. NBC moves, pursuant to Rule 12(b)(6) dismiss the amended complaint for failure to state a claim upon which relief may be granted. NBC argues, among other things, that it owed Conradt no duty to protect him from suicide and that neither it nor the police violated Conradt's rights under the Fourth Amendment to be free from unreasonable searches and seizures. It alleges further that its alleged conduct was not "extreme and outrageous" in the sense required under Texas law for a claim of intentional infliction of emotional distress. Although many of plaintiff's claims will be dismissed, the principal claims survive, for if the allegations of the amended complaint are proven, a reasonable jury could find that NBC crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement. Rather than merely report on law enforcement's efforts to combat crime, NBC purportedly instigated and then placed itself squarely in the middle of a police operation, pushing the police to engage in tactics that were unnecessary and unwise, solely to generate more dramatic footage for a television show. On the facts alleged in the amended complaint, for example, a reasonable jury could find that there was no legitimate law enforcement need for a heavily armed SWAT team to extract a 56-year old prosecutor from his home when he was not accused of any actual violence and was not believed to have a gun, and that this was done solely "to sensationalize and enhance the entertainment value" of the arrest. A reasonable jury could find that by doing so, NBC created a substantial risk of suicide or other harm, and that it engaged in conduct so outrageous and extreme that no civilized society should tolerate it."

With regard to the 1983 claim, the judge wrote, "To prevail on [a] § 1983 claim, a plaintiff must show that (1) the defendant acted under color of state law and (2) the defendant's actions deprived plaintiff of her constitutional rights or privileges....As to the first element, although NBC is not a "state actor," the amended complaint alleges that the actions of the police officer must be imputed to NBC.... NBC does not dispute this allegation for purposes of this motion....Accordingly, for purposes of this motion only, I assume the first element is met. As to the second element, plaintiff alleges that Conradt's constitutional rights were violated in two respects: (1) he was subjected to an unreasonable search and seizure, in violation of the Fourth Amendment ..., and (2) he was deprived of life, liberty, and property without clue process of law, in violation of the Fourteenth Amendment....

"I discuss the Fourth Amendment claim first and the Fourteenth Amendment claim second....At this early stage of the litigation, I conclude that a fair issue exists as to the reasonableness of the police officers' (and NBC's) actions in this case. Based on the allegations of the amended complaint, I conclude that a reasonable jury could find that the intrusion on Conradt's privacy substantially outweighed the promotion of legitimate governmental interests. If the facts alleged in the amended complaint are true, the intrusion was great -- Dateline was camped outside Conradt's house with cameras and crew, waiting to film his arrest for a national television show, as a SWAT team entered his home. On the other hand, the extent to which the search was necessary to promote a legitimate governmental interest is debatable. Although there are legitimate reasons for publicizing arrests...the amended complaint plausibly asserts that many of the police officers' actions were motivated not by a genuine law enforcement need, but by Dateline's desire for more sensational footage....For example, on the circumstances presented, a reasonable jury could find that the following decisions and actions of the police officers were motivated at least in part by Dateline's involvement...Certain other actions also would appear to be deviations from prudent law enforcement practice. In the operations at the sting house, for example, the police permitted Dateline to interview the suspects first, before the police interviewed them. And in his interview with Dateline after Conradt's suicide, the Murphy police chief was willing to speculate on camera as to what a forensic examination of Conradt's computers might show....Here, although the amended complaint does not allege that Dateline representatives entered the house, it does plausibly allege, in substance, that Dateline personnel were "active participants in planned activity that transformed the execution of [the warrants] into television entertainment." The amended complaint alleges that the Dateline representatives did not just have a "passive role, as observers," but that they were involved in the planning, and that, indeed, they purportedly pushed the police officers into dramatizing their actions for the benefit of the television cameras. Moreover, the amended complaint alleges that Dateline personnel trespassed onto Conradt's property. NBC steadfastly denies these allegations, but for purposes of this motion to dismiss, of course, I must assume the allegations are true. NBC argues that, even assuming the allegations of the amended complaint are true, Conradt's Fourth Amendment claim is barred as a matter of law because the police officers had arrest and search warrants that authorized them to enter the house, which thus insulated them from liability....The argument is rejected, for in the circumstances alleged here, the issuance of the warrants does not insulate the officers and NBC from liability....

"To sustain a § 1983 claim based on a Fourteenth Amendment due process violation, a plaintiff must show that (1) she possessed a liberty or property interest protected by law and (2) she was deprived of that interest without due process....In moving to dismiss this claim, NBC argues principally that under Texas law a party has no duty to prevent the suicide of another and that generally suicide is an intervening cause that breaks the chain of causation in a civil action for personal injury or wrongful death....Moreover, while acknowledging the "special relationship" cases where courts have imposed a duty on the state to protect individuals in their custody (for example, prisoners and involuntarily committed mental patients) from committing suicide, NBC argues that in those cases the state officials "'knew of a substantial risk that the detainee might commit suicide and violated the detainee's rights by responding with deliberate indifference.'"... NBC contends that here there is no allegation that anyone knew that Conradt posed a risk of suicide, as the amended complaint does not allege that Conradt threatened to commit suicide or exhibited any sign of a suicidal tendency....NBC's arguments are rejected. As an initial matter, the Estate is suing not just for the suicide, but for other injuries as well, including, for example, the invasion of Conradt's privacy, the intrusion into his home, and the public ridicule and loss of his good name....The claims for damages for these injuries are independent of the suicide (at least to some extent) and would survive even assuming the suicide were deemed an intervening cause in the chain of causation. Similarly, the manner in which the police arrested Conradt -- with the involvement of a dozen or so armed police officers -- surely presented risks other than suicide, including the risk that Conradt or someone else would be shot or otherwise injured. More importantly, with respect to the suicide, I conclude that the amended complaint alleges sufficient facts to render plausible plaintiff's claims that (1) the suicide was foreseeable, (2) the police officers had a duty to take steps to protect Conradt from taking his own life, and (3) the police officers and NBC acted with deliberate indifference and in a manner that would shock one's conscience."


With regard to the intentional infliction of emotional distress claim, the judge wrote, "Under Texas law, to recover damages for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe.... In moving to dismiss the Estate's claim for intentional infliction of emotional distress, NBC makes two principal arguments. First, it notes that "'a plaintiff may not assert a claim for intentional infliction of emotional distress merely because of his inability to prevail on another theory of relief designed to address the gravamen of his complaint,'" and argues that plaintiff here is seeking to do just that....Both arguments are rejected. First, while intentional infliction of emotional distress is "a 'gap-filler' tort never intended to supplant or duplicate existing statutory or common-law remedies," is premature to  [*40] dismiss the claim on these grounds at this time. The tort was created "for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress."...On the facts alleged in the amended complaint, plaintiff's contention that this is one of "those rare instances" is plausible. Plaintiff may very well be able to show that there is an independent basis for a claim of intentional infliction of emotional distress. Moreover, I do not believe plaintiff is asserting this claim as a means to circumvent impediments to other claims, and, in fact, I have held that she may proceed with her claims under [sec. 1983]. Finally, of course, plaintiff is permitted to plead "in the alternative," under Rule 8(a) of the Federal Rules of Civil Procedure, and she is doing so here. If NBC so desires, I will revisit this issue at the summary judgment stage, when I will be in a better position to decide whether "the gravamen of . . . plaintiff's complaint is really another tort" or claim. Id. Second, I conclude that reasonable minds could differ as to whether NBC's conduct was so "outrageous and extreme" as to exceed all possible bounds of decency....The amended complaint, however, alleges far more -- it alleges that NBC intruded into a law enforcement operation to such an extent that the police officers deviated from sound police practice, solely for the sake of creating a more dramatic television show. It alleges that what happened here was neither news nor law enforcement, but a blurring of the two with a tragic consequence -- to avoid public humiliation, an otherwise law-abiding man was shamed into committing suicide, before he had been charged by any court, before he had any opportunity to be heard. Significantly, two of the circumstances that give rise to a finding of outrageousness are arguably present here: NBC was in a position of power, both with its ability to disseminate information to the public and with its apparent influence over the police, and NBC knew or should have known that Conradt was peculiarly susceptible to emotional distress and suicide. In considering whether NBC's conduct was outrageous, a jury could take note of the fact that, as alleged in the amended complaint, NBC failed to act "ethically" and violated "numerous journalistic standards."...The reporter-subject relationship is not monitored by statute, but the profession is guided by self-enforced principles and standards of practice. Although unethical conduct, by itself, does not necessarily equate to outrageous conduct, the failure to abide by these journalistic standards may indeed be relevant to the jury's determination of whether Dateline acted in a reckless and outrageous manner. ...In the circumstances alleged in the amended complaint, a reasonable jury could find that Dateline violated some or all of these standards by failing to take steps to minimize the potential harm to Conradt, by pandering to lurid curiosity, by staging (or overly dramatizing) certain events, by paying Perverted Justice and providing equipment and other consideration to law enforcement, by failing to be judicious about publicizing allegations before the filing of charges, by advocating a cause rather than independently examining a problem, and by manufacturing the news rather than merely reporting it. In light of the consequences here, an "average member of the community" could find that NBC abused its power -- the power of the press enhanced by the involvement of law enforcement -- in reckless disregard of Conradt's rights, in a manner that overstepped "all possible bounds of decency." NBC's motion is denied to the extent it seeks dismissal of the claim for intentional infliction of emotional distress."

Read the entire ruling here. The case is Conradt v. NBC Universal, 536 F.Supp.2d 380 (S.D.N.Y.2008).

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