Appeal by plaintiff, a free-lance photographer, from summary judgment in the United States District Court for the Southern District of New York dismissing action for false arrest, malicious prosecution and interference with business against Secret Service agents, Edward C. McLean, Judge, dismissal after trial of similar complaint against Jacqueline Onassis, grant of injunctive relief to defendant on counterclaim and to United States on intervening complaint and from taxation of costs, Irving Ben Cooper, Judge. 353 F. Supp. 196 (1972).
Smith, Hays and Timbers, Circuit Judges. Timbers, Circuit Judge (concurring in part and dissenting in part).
Donald Galella, a free-lance photographer, appeals from a summary judgment dismissing his complaint against three Secret Service agents for false arrest, malicious prosecution and interference with trade (S.D.N.Y., Edward C. McLean, Judge),*fn1 the dismissal after trial of his identical complaint against Jacqueline Onassis and the grant of injunctive relief to defendant Onassis on her counterclaim and to the intervenor, the United States, on its intervening complaint and a third judgment retaxing transcript costs to plaintiff (S.D.N.Y., Irving Ben Cooper, Judge), 353 F. Supp. 196 (1972). In addition to numerous alleged procedural errors, Galella raises the First Amendment as an absolute shield against liability to any sanctions. The judgments dismissing the complaints are affirmed; the grant of injunctive relief is affirmed as herein modified. Taxation of costs against the plaintiff is affirmed in part, reversed in part.
Galella is a free-lance photographer specializing in the making and sale of photographs of well-known persons. Defendant Onassis is the widow of the late President, John F. Kennedy, mother of the two Kennedy children, John and Caroline, and is the wife of Aristotle Onassis, widely known shipping figure and reputed multimillionaire. John Walsh, James Kalafatis and John Connelly are U.S. Secret Service agents assigned to the duty of protecting the Kennedy children under 18 U.S.C. § 3056, which provides for protection of the children of deceased presidents up to the age of 16.
Galella fancies himself as a "paparazzo" (literally a kind of annoying insect, perhaps roughly equivalent to the English "gadfly.") Paparazzi make themselves as visible to the public and obnoxious to their photographic subjects as possible to aid in the advertisement and wide sale of their works.*fn2
Some examples of Galella's conduct brought out at trial are illustrative. Galella took pictures of John Kennedy riding his bicycle in Central Park across the way from his home. He jumped out into the boy's path, causing the agents concern for John's safety. The agents' reaction and interrogation of Galella led to Galella's arrest and his action against the agents; Galella on other occasions interrupted Caroline at tennis, and invaded the children's private schools. At one time he came uncomfortably close in a power boat to Mrs. Onassis swimming. He often jumped and postured around while taking pictures of her party, notably at a theater opening but also on numerous other occasions. He followed a practice of bribing apartment house, restaurant and nightclub doormen as well as romancing a family servant to keep him advised of the movements of the family.
After detention and arrest following complaint by the Secret Service agents protecting Mrs. Onassis' son and his acquittal in the state court, Galella filed suit in state court against the agents and Mrs. Onassis. Galella claimed that under orders from Mrs. Onassis, the three agents had falsely arrested and maliciously prosecuted him, and that this incident in addition to several others described in the complaint constituted an unlawful interference with his trade.
Mrs. Onassis answered denying any role in the arrest or any part in the claimed interference with his attempts to photograph her, and counterclaimed for damages*fn3 and injunctive relief, charging that Galella had invaded her privacy, assaulted and battered her, intentionally inflicted emotional distress and engaged in a campaign of harassment.
The action was removed under 28 U.S.C. § 1442(a) to the United States District Court. On a motion for summary judgment, Galella's claim against the Secret Service agents was dismissed, the court finding that the agents were acting within the scope of their authority and thus were immune from prosecution. At the same time, the government intervened requesting injunctive relief from the activities of Galella which obstructed the Secret Service's ability to protect Mrs. Onassis' children.*fn4 Galella's motion to remand the case to state court, just prior to trial, was denied.
Certain incidents of photographic coverage by Galella, subsequent to an agreement among the parties for Galella not to so engage, resulted in the issuance of a temporary restraining order to prevent further harassment of Mrs. Onassis and the children. Galella was enjoined from "harassing, alarming, startling, tormenting, touching the person of the defendant . . . or her children . . . and from blocking their movements in the public places and thoroughfares, invading their immediate zone of privacy by means of physical movements, gestures or with photographic equipment and from performing any act reasonably calculated to place the lives and safety of the defendant . . . and her children in jeopardy." Within two months, Galella was charged with violation of the temporary restraining order; a new order was signed which required that the photographer keep 100 yards from the Onassis apartment and 50 yards from the person of the defendant and her children. Surveillance was also prohibited.
Upon notice of consolidation of the preliminary injunction hearing and trial for permanent injunction, plaintiff moved for a jury trial -- nine months after answer was served, and to remand to state court. The first motion was denied as untimely, the second on grounds of judicial economy. Just prior to trial Galella deposed Mrs. Onassis. Under protective order of the court, the defendant was allowed to testify at the office of the U.S. Attorney and outside the presence of Galella.
After a six-week trial the court dismissed Galella's claim and granted relief to both the defendant and the intervenor. Galella was enjoined from (1) keeping the defendant and her children under surveillance or following any of them; (2) approaching within 100 yards of the home of defendant or her children, or within 100 yards of either child's school or within 75 yards of either child or 50 yards of defendant; (3) using the name, portrait or picture of defendant or her children for advertising; (4) attempting to communicate with defendant or her children except through her attorney.
We conclude that grant of summary judgment and dismissal of Galella's claim against the Secret Service agents was proper. Federal agents when charged with duties which require the exercise of discretion are immune from liability for actions within the scope of their authority. Ordinarily enforcement agents charged with the duty of arrest are not so immune. Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2d Cir. 1972). The protective duties assigned the agents under this statute, however, require the instant exercise of judgment which should be protected. The agents saw Galella jump into the path of John Kennedy who was forced to swerve his bike dangerously as he left Central Park and was about to enter Fifth Avenue, whereupon the agents gave chase to the photographer. Galella indicated that he was a press photographer listed with the New York City Police; he and the agents went to the police station to check on the story, where one of the agents made the complaint on which the state court charges were based. Certainly it was reasonable that the agents "check out" an individual who has endangered their charge,*fn5 and seek prosecution for apparent violation of state law which interferes with them in the discharge of their duties.
If an officer is acting within his role as a government officer his conduct is at least within the outer perimeter of his authority. Bivens, supra, 456 F.2d at 1345.*fn6 The Secret Service agents were charged under 18 U.S.C. § 3056 with "guarding against and preventing any activity by any individual which could create a risk to the safety and well being of the . . . children or result in their physical injury." It was undisputed that the agents were on duty at the time, and there was evidence that they believed John Kennedy to be endangered by Galella's actions. Unquestionably the agents were acting within the scope of their authority.*fn7
To be sure, even where acting within their authority, not all federal agents are immune from liability. Immunity is accorded officials whose decisions involve an element of discretion so that the decisions may be made without fear or threat of vexatious or fictitious suits and alleged personal liability. Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir. 1962), cert. denied, 374 U.S. 827, 10 L. Ed. 2d 1050, 83 S. Ct. 1862 (1963). The issue in each case is whether the public interest in a particular official's unfettered judgments outweighs the private rights that may be violated.*fn8 See Bivens, supra, 456 F.2d at 1346. The protective duties of the agents on assignments similar to this warrant this protection.*fn9 See Scherer v. Brennan, 379 F.2d 609 (7th Cir.), cert. denied, 389 U.S. 1021, 19 L. Ed. 2d 666, 88 S. Ct. 592 (1967).
Discrediting all of Galella's testimony*fn10 the court found the photographer guilty of harassment, intentional infliction of emotional distress, assault and battery, commercial exploitation of defendant's personality, and invasion of privacy. Fully crediting defendant's testimony, the court found no liability on Galella's claim. Evidence offered by the defense showed that Galella had on occasion intentionally physically touched Mrs. Onassis and her daughter, caused fear of physical contact in his frenzied attempts to get their pictures, followed defendant and her children too closely in an automobile, endangered the safety of the children while they were swimming, water skiing and horseback riding. Galella cannot successfully challenge the court's finding of tortious conduct.*fn11
Finding that Galella had "insinuated himself into the very fabric of Mrs. Onassis' life . . ." the court framed its relief in part on the need to prevent further invasion of the defendant's privacy. Whether or not this accords with present New York law, there is no doubt that it is sustainable under New York's proscription of harassment.*fn12
Of course legitimate countervailing social needs may warrant some intrusion despite an individual's reasonable expectation of privacy and freedom from harassment. However the interference allowed may be no greater than that necessary to protect the overriding public interest. Mrs. Onassis was properly found to be a public figure and thus subject to news coverage. See Sidis v. F.R. Publishing Corp., 113 F.2d 806 (2d Cir.), cert. denied, 311 U.S. 711, 61 S. Ct. 393, 85 L. Ed. 462 (1940). Nonetheless, Galella's action went far beyond the reasonable bounds of news gathering. When weighed against the de minimis public importance of the daily activities of the defendant, Galella's constant surveillance, his obtrusive and intruding presence, was unwarranted and unreasonable. If there were any doubt in our minds, Galella's inexcusable conduct toward defendant's minor children would resolve it.
Galella does not seriously dispute the court's finding of tortious conduct. Rather, he sets up the First Amendment as a wall of immunity protecting newsmen from any liability for their conduct while gathering news. There is no such scope to the First Amendment right. Crimes and torts committed in news gathering are not protected. See Branzburg v. Hayes, 408 U.S. 665, 33 L. Ed. 2d 626, 92 S. Ct. 2646 (1972); Rosenbloom v. Metromedia, 403 U.S. 29, 29 L. Ed. 2d 296, 91 S. Ct. 1811 (1971); Dietemann v. Time, Inc., 449 F.2d 245, 249-50 (9th Cir. 1971). See Restatement of Torts 2d § 652(f), comment k (Tent. Draft No. 13, 1967). There is no threat to a free press in requiring its agents to act within the law.
In addition to his substantive claims, Galella challenges the court's (a) refusal to remand the case; (b) refusal to allow a jury trial despite an untimely request; (c) exclusion of Galella from defendant's deposition; (d) failure to recuse himself; (e) consolidation of the temporary injunctive proceedings and trial on the merits. Numerous claims of error in evidentiary rulings are also raised. Little need be said about most of these evidentiary rulings;*fn13 the rulings were either clearly correct or if error, harmless.*fn14 Galella's procedural claims must fail.
Galella's claim against Mrs. Onassis, originally in federal court as an action joined with that against the Secret Service agents, was not automatically stripped of federal pendent jurisdiction by the dismissal of the claim against the agents. United Mineworkers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966); see Almenares v. Wyman, 453 F.2d 1075, 1084 (2d Cir. 1971), cert. denied, 405 U.S. 944, 30 L. Ed. 2d 815, 92 S. Ct. 962 (1972). Whether the claim was to be remanded was within the court's discretion after consideration of judicial economy and fairness to the litigants. United Mineworkers v. Gibbs, supra, 383 U.S. at 726. The motion to remand was made six months after dismissal of the suit against the agents and on the eve of trial; the United States Government had then intervened in the case,*fn15 a series of hearings on the substantive claims had been heard by the federal court, a special master in charge of discovery had been appointed and a number of motions had been heard, and others were pending.*fn16 ...