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Gillard v. Schmidt

argued: March 30, 1978.



Adams, Van Dusen, and Rosenn, Circuit Judges.

Author: Rosenn

ROSENN, Circuit Judge.

On February 4, 1976, a political cartoon, drawn over the signature "Ed Ucation," appeared in a local newspaper of Fair Lawn, New Jersey, the "Fair Lawn Shopper." The cartoon ridiculed the financial and personnel policies of the Fair Lawn, New Jersey, Board of Education by depicting the Board members as poker players, apparently gambling away employees' salaries and jobs. At the first meeting of the Board following publication of the cartoon, defendant-appellee Harold Schmidt, an elected member of the Board, directed the Board's attention to the cartoon, which he characterized as a "total disgrace to the elected body," and urged the Board to find the artist and punish him. The Board never took any action on the matter.

Schmidt subsequently received information indicating that Francis Gillard, plaintiff-appellant, a guidance counselor employed by the Fair Lawn School System, was the offending cartoonist. On the evening of February 10, 1976, Schmidt went to Gillard's school, the Thomas Jefferson Junior High School, which was open that evening for participants in the Adult Education Program. After entering the building, Schmidt found a janitor with a pass key, and directed him to unlock the door to the guidance counselor's suite - one large room partitioned into five smaller offices. In the janitor's presence, Schmidt reconnoitered the offices to ascertain which one was Gillard's. When he had located it, he entered it to search for clues linking Gillard to the cartoon. Observing a slightly open drawer in Gillard's desk, Schmidt pulled it completely open, revealing copies of the cartoon. Having confirmed his expectations, Schmidt left the office without further rummaging through Gillard's desk, and the janitor followed him out, locking the office behind him.

Gillard brought suit in the United States District Court for the District of New Jersey, alleging a violation of his fourth amendment rights to be free from unreasonable government intrusion, and asserting a cause of action under 42 U.S.C. § 1983. The district court, trying the case without a jury, found that Schmidt had surreptitiously searched Gillard's office as part of a campaign to retaliate against Gillard's unflattering cartoon. Accepting, arguendo, plaintiff's contention that he had a reasonable expectation of privacy from his employer's investigatory desk search, the district court nevertheless dismissed the complaint, reasoning that the injury alleged fell outside the protection of the fourth amendment. We disagree and we reverse.


42 U.S.C. § 1983 reads, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity . . . .

Recovery in a section 1983 action requires the presence of two elements: deprivation of a right secured by the "Constitution and laws" of the United States, and a showing that such deprivation occurred under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 151, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). For the purposes of analysis, we will discuss these elements separately.

A. Constitutional Deprivation

The district court, in holding that the injury alleged here did not enjoy fourth amendment protection, reasoned that plaintiff's assertion of a reasonable expectation of privacy in his desk was an attempt to translate constitutional protection against unlawful search and seizure - in the context of suppression of criminal evidence - into a nebulous right of privacy. The district court's holding is based on its reading of Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). In that case, government officials published Davis' photograph in a flyer depicting local "active shoplifters," even though his guilt was never established, and the charge was dismissed shortly after the flyer's circulation. The Supreme Court held, first, that distribution of the flyer deprived Davis of no liberty or property interest protected by the fourteenth amendment, in particular an alleged injury to reputation. Second, the Supreme Court held that Davis' privacy interest was not constitutionally protected; it involved neither an unreasonable search and seizure, prohibited by the fourth amendment, nor an intrusion of certain fundamental privacy rights, prohibited by the fourteenth amendment. Noting an absence of a general right of privacy, the Court found that Davis' privacy interest was not embraced within the limited "zones of privacy" created by the specific constitutional guarantees in the fourth and fourteenth amendments.

The district court misconstrued the essence of the injury alleged and it failed to recognize that the fourth amendment's protection of certain privacy interests did apply in this case. Consequently, the district court focused on the Court's general disclaimer of a general right of privacy. In fact, Gillard's allegation of injury stemming from Schmidt's foraging ...

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