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Dillard v. City of Springdale

United States Court of Appeals, Eighth Circuit

July 12, 2019

Jill Dillard; Jessa Seewald; Jinger Vuolo; Joy Duggar Plaintiffs - Appellees
v.
City of Springdale, Arkansas; Washington County, Arkansas; Kathy O'Kelley; Ernest Cate Defendants Rick Hoyt, in his individual and official capacities Defendant-Appellant Steve Zega; Bauer Publishing Company, L.P.; Bauer Magazine, L.P.; Bauer Media Group, Inc.; Bauer, Inc.; Heinrich Bauer North America, Inc.; Bauer Media Group USA, LLC; Does, 1-10 Defendants Jill Dillard; Jessa Seewald; Jinger Vuolo; Joy Duggar Plaintiffs - Appellees
v.
City of Springdale, Arkansas; Washington County, Arkansas Defendants Kathy O'Kelley, in her individual and official capacities; Ernest Cate, in his individual and official capacities Defendants - Appellants

          Submitted: December 12, 2018

          Appeals from United States District Court for the Western District of Arkansas - Fayetteville

          Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

          SMITH, Chief Judge.

         Plaintiff-appellees Jill Dillard, Jessa Seewald, Jinger Vuolo, and Joy Duggar allege violations of their constitutional right to privacy and of Arkansas tort law in connection with defendant-appellants' decisions to release information identifying them as victims of childhood sexual abuse. The appellees sued several parties and entities, but this appeal concerns their constitutional and tort claims against City of Springdale ("City") officials Kathy O'Kelley and Ernest Cate, and Washington County ("County") official Rick Hoyt. O'Kelley, Cate, and Hoyt (collectively, "the officials") moved to dismiss the appellees' constitutional claims on the basis of qualified immunity and the tort claims on the bases of qualified and statutory immunity. The district court[1] denied their motion. Because we agree that the officials were not entitled to either qualified or statutory immunity, we affirm.

         I. Background

         The appellees are sisters and stars of the popular reality show 19 Kids and Counting. The show chronicles the lives of Jim Bob and Michelle Duggar and their 19 children. In 2006, the appellees, as well as their siblings and parents, were interviewed as part of a police investigation into sexual misconduct by the appellees' brother, Josh Duggar. The appellees were under the age of 16 at the time of the alleged misconduct and at the time of the investigation. The police promised the appellees and their family that their statements would remain confidential. The family's statements were documented in reports by both the City Police Department and the County Sheriff's Department. The County prosecutor also filed a Family in Need of Services (FINS) petition pursuant to a request by the City police. No charges were ever filed against Josh.

         In 2015, a tabloid publisher submitted Freedom of Information Act (FOIA) requests to the City and County to access these reports. On May 19, 2015, the tabloid published an article naming Josh as the target of an "Underage Sex Probe" and promised more details to follow. Dillard v. City of Springdale, Ark., No. 5:17-cv-05089, 2017 WL 4392049, at *1 (W.D. Ark. Sept. 29, 2017). The original article identified Josh as the perpetrator and unnamed sisters-later identified as the appellees-as the victims. On May 20, the City released its report to the tabloid; the next day, the County released its report as well. O'Kelley, the City Police Chief, and Cate, the City Attorney, directed the release of the City's report, while Hoyt, an officer in the County Sheriff's Office, directed the release of the County's report. The appellees describe the released City report, for example, as containing "graphic descriptions about their molestation." Compl. at 17, ¶ 58, Dillard v. City of Springdale, Ark., No. 5:17-cv-05089 (W.D. Ark. May 18, 2017), ECF No. 1. Though the appellees' names were redacted, the reports contained other identifying information-such as the appellees' parents' names and the appellees' address and ages.

         At the district court, the officials claimed FOIA required them to release the reports in the time and manner in which they did. However, the appellees alleged that the officials hastily and wrongfully released the reports. We read the appellees' complaint as alleging that the officials released the reports in response to pressure from the press in an effort to promote the appearance of transparency.

         Following the officials' release of the reports, the tabloid published both reports, as well as several salacious articles based on the reports' content. Because of the public's prior knowledge about the Duggar family, the non-redacted details-i.e., the parents' names, the victims' ages and address-allowed readers to ascertain the appellees' exact identities. While the pre-disclosure March 19 article indicated that some of the many Duggar children had been abused, the March 20 and 21 reports confirmed these rumors and enabled the appellees to be specifically identified. A torrent of media attention followed, and the appellees claim they "were subjected to spiteful and harsh comments and harassment on the Internet and in their daily lives." Compl. at 20, ¶ 68. Joy Duggar subsequently filed a motion in state court to expunge copies of the City report from the public record; the court granted this motion on the basis that Arkansas law had prohibited their release. Nonetheless, copies of the report continued to circulate online.

         The appellees then brought this suit in federal court, alleging the officials violated their constitutional and common law rights by directing the reports' release. They sued under 42 U.S.C. § 1983 and the Arkansas Civil Rights Act (ACRA) for violations of their right to privacy and under Arkansas tort law for invasion of privacy-public disclosure of private fact; invasion of privacy-intrusion upon seclusion; and outrage.[2] The officials moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, invoking the protection of qualified immunity for the constitutional claims and qualified and statutory immunity for the tort claims. With regard to the constitutional claims, they argued the appellees had not alleged constitutional violations, or, in the alternative, that the constitutional right at issue-i.e., the right to informational privacy-was not "clearly established." The officials renew this argument on appeal, with an emphasis on the "clearly established" element. With regard to the state law claims, they argued that Ark. Code Ann. § 21-9-301 immunized them from suit and likewise renew this argument on appeal.

         II. Discussion

         A. Constitutional Claims

         "A denial of qualified immunity is an appealable final decision only to the extent it turns on an issue of law. . . . At this early stage of the litigation, to warrant reversal, defendants must show that they are entitled to qualified immunity on the face of the complaint." Dadd v. Anoka Cty., 827 F.3d 749, 754 (8th Cir. 2016) (internal quotations omitted). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely." Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009) (internal quotations omitted). "Like the district court, we must review the complaint most favorably to the non-moving party and may dismiss only if it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations." Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir. 1993) (internal quotations omitted).

         "The obvious function of the qualified immunity rule is to excuse an officer who makes a reasonable mistake in the exercise of his official duties." Edwards v. Baer, 863 F.2d 606, 607 (8th Cir. 1988). "An individual defendant is entitled to qualified immunity if his conduct does not violate clearly established constitutional rights of which a reasonable person would have known." Estate of Walker v. Wallace, 881 F.3d 1056, 1060 (8th Cir. 2018). This court "review[s] de novo the denial of a motion to dismiss on the basis of qualified immunity, and must consider whether the plaintiff has stated a plausible claim for violation of a constitutional or statutory right and whether the right was clearly established at the time of the alleged infraction." Dadd, 827 F.3d at 754-55 (internal quotations omitted). Absent either a clearly established right or a constitutional violation, qualified immunity applies. See Estate of Walker, 881 F.3d at 1060. We apply the same standard to claims under the Arkansas Constitution. See Hudson v. Norris, 227 F.3d 1047, 1054 (8th Cir. 2000) (citing Robinson v. Langdon, 970 S.W.2d 292, 296 (Ark. 1998)).

         1. Constitutional Violation

         "In Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (Whalen), the Supreme Court determined that one component of the protection of the right to privacy embodied in the [F]ourteenth [A]mendment is an individual's interest in avoiding disclosures of personal matters." Peffer, 993 F.2d at 1349. We have adopted that understanding of the Fourteenth Amendment, recognizing a "right to confidentiality" protecting "against public dissemination of information" concerning "highly personal matters representing the most ...


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