D.N.H.: Seizure of a pseudo-fireman’s camera for impersonating a first responder didn’t violate First or Fourth Amendments [Updated: aff’d 12/23/16]

Seizure of the named plaintiff photographer’s camera for evidence of his impersonating a first responder at the scene of a fatal accident for potential proof of the offense failed to state a claim under the First or Fourth Amendments. Plaintiff showed up driving a repurposed ambulance to take pictures at a fatal accident, and he was wearing a fireman’s turn out coat and helmet with “photographer” on it. The first responders at the scene thought he was one of them. Even if he stated a Fourth Amendment claim, it wasn’t clearly established in 2010. Belsito Communications, Inc. v. Decker, 2016 U.S. Dist. LEXIS 3694 (D.N.H. Jan. 12, 2016), aff’d Belsito Communications, Inc. v. Decker, 2016 U.S. App. LEXIS 23201 (1st Cir. Dec. 23, 2016). From the District Court:

The highlighted language underscores an important fact that readily distinguishes this case from those upon which plaintiffs rely: Blackden was not acting within the law while taking the photographs at issue. To the contrary, Blackden was engaged in criminal conduct. He was within a restricted area without authorization, dressed in a way that falsely conveyed that he was a member of one of the responding emergency crews, and he was operating a vehicle with flashing red emergency lights — all in violation of New Hampshire law. Trooper Decker unquestionably had probable cause to believe that Blackden’s conduct was unlawful, and Blackden unarguably could have been placed under arrest. That was not the case in either Glik or Iacobucci. Indeed, in both cases the court explicitly noted that the arresting officers lacked probable cause to arrest the plaintiffs. See Glik, 655 F.3d at 88; Iacobucci, 193 F.3d at 24.