LOWER MERION SCHOOL DISTRICT v. BLAKE J. ROBBINS

DISPOSITION: Affirmed in favor of Robbins.

SUMMARY: The Lower Merion School District violated Blake Robbins constitutional right to privacy by capturing pictures of him in his home. The district is responsible for compensation and all lawyer fees

accrued both before and after 14 May 2010.

JUDGES: Authored by Drew A. Powell and Nicholas W. Farrell Peck with whom Chief Justice Jim Hanson joins

In the Matter of

LOWER MERION SCHOOL DISTRICT, Appellant, v. BLAKE J. ROBBINS, Respondent.

HANSON COURT

March 9, 2012, Filed

PRIOR HISTORY: Appeal from the United States District Court for the Eastern District of Pennsylvania. Date filed: February 23, 2010

COUNSEL: For Appellant: Jack J. Gretsch, 280 Boyer Avenue, Walla Walla, WA. For Respondent: Martha B. Russell, 280 Boyer Avenue, Walla Walla, WA.

I.

Mr. Robbins, a student, was issued a loaner laptop from the Lower Marion School district in October of 2009. Robbins took the laptop off school grounds which violated its insurance policy; Mr. Robbins was unaware that this was a violation and neither Mr. Robbins nor his parents were informed of this violation. Shortly after, the laptop's TheftTrack system was activated including a web cam feature that took photos of the computer's user. The system was active for between 10 and 15 days. In early November an information services employee brought TheftTrack photos of Robbins to the Vice Principal, who then called Mr. Robbins into her office to discuss some “questionable behavior.” On February 16, 2010, Mr. Robbins initiated a lawsuit against the district, claiming his constitutional rights had been violated. The court issued preliminary injunctions against the district starting on February 23, 2010, the last of which was issued on May 14, 2010. On August 30, 2010, The District Court for the Eastern District of Pennsylvania ruled that attorney fees accrued prior to May 14, 2010 should be awarded to the plaintiffs, and that attorney fees accrued after May 14, 2010 could not yet be awarded because a permanent injunction had not been obtained as a result of that work. On October 12, 2010, the Court ordered a permanent injunction.

II.

A.

Mr. Robbins claims that his right to privacy has been violated. In order to determine whether or not this is true we must examine the right to privacy in the home from electronic surveillance. In Katz v. United States, 389 U.S. 347 (1967) the Supreme Court found that attaining personal information that was not intended to be public, without the consent of the of the individual to whom the information pertains, does qualify as a search and seizure and is therefore unconstitutional under the Fourth Amendment. In the Katz case, the police placed a listening device on a public telephone booth and attained a recording used as evidence against Mr. Katz in a criminal case. The Supreme Court ruled, on appeal that the recordings were inadmissible because the method by which police obtained them qualified as a search and seizure and were therefore a violation of the Fourth Amendment.

In the Robbins case, the device used to capture information, the loaner laptop's web cam, was much more sophisticated and intrusive because it captured pictures from inside Mr. Robbins' home. In the Katz case the court ruled to protect the privacy of a conversation that, though it took place in a public area, was not meant to be heard. The violation of privacy in the Robbins case was even more severe because it took place in a private space, Mr. Robbins' home. The actions Mr. Robbins preformed inside his home and bedroom were not intended to be seen publicly, and they were certainly not meant to be captured and distributed in the form of images taken from the TheftTrack system's web cam feature.

The Supreme Court's stance on upholding privacy within the home was made clear in Silverman v. United States, 365 U. S. 505, 511 (1961). In Silverman, the police used a “spike mic,” a microphone with a spike on it that was used to physically penetrate the walls of a home, in order to obtain information about illegal gambling. The Court ruled that the use of the spike mic was unconstitutional saying: “The Fourth Amendment, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” (511) Silverman shows the Court's reverence for privacy of the home, and its grounding for this right to privacy in the Fourth Amendment. Silverman also shows that using technology to search a home is a violation of that right to privacy. In the Robbins case technology of a much more modern and pervasive type was used. Capturing web cam photos of Mr. Robins without his consent or knowledge is a direct parallel to inserting a microphone into a home. Silverman makes it clear that the schools actions are an unlawful search of Mr. Robbins' home.

In Kyllo v. United States, 533 U.S. 27 (2001), the Court addressed what constitutes a “reasonable expectation of privacy” while taking into consideration more modern technology. In this case, the police used a thermal imaging device to scan Kyllo's home. They used this information to then physically search Mr. Kyllo's home, where they found marijuana growing. On appeal, the Supreme Court concluded that the means by which the warrant was attained constituted a “search” under the Fourth Amendment and was therefore unlawful.

This case directly addresses how more modern technology applies to the rules regarding searches. The Court's ruling states:

To withdraw protection of this minimum expectation [of privacy] would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical 'intrusion into a constitutionally protected area,' constitutes a search (34)

The Kyllo case affirms the Court's stance in several key areas of the Robbins case. First Kyllo reiterates the Court's stance on protecting privacy within the home. The school district’s use of the TheftTrack system to capture images of Mr. Robbins in his home was a clear violation of his right to privacy within his home. Kyllo also reiterates that the use of technology implicates the right to privacy. The police were not allowed to use thermal imaging because its invasive nature constituted a search. The Court concluded: “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search.'”(40) Without the use of TheftTrack, a program that is “not in general public use,” the school would not have been able to view inside Mr. Robbins' home. Therefore the school's use of the TheftTrack system to obtain images of Mr. Robbins inside his home constituted a “search,” according to Kyllo, and it is therefore deemed unconstitutional under the Fourth Amendment.

The appellant’s claim that the school district had “probable cause” to activate the TheftTrack system does not justify the web cam's use in this case. The district claims they had probable cause because Mr. Robbins violated the insurance policy by taking the loaner laptop off of school grounds. According to school policy, taking the loaner laptop off of school property was prohibited because the laptop was only insured as long as it was on school grounds. This could be deemed probable cause to activate the TheftTrack system in order to track the stolen laptop. The school, however, made no additional efforts to recover the laptop that they claim was regarded as “stolen.” For approximately two weeks, Mr. Robbins continued to attend school and transport the loaner laptop between the school and his home. At no point during that time was Mr. Robbins, nor his parents, informed that he was in possession of “stolen” property. If the school was aware that the laptop was taken off campus they could have easily checked the record and seen that Mr. Robbins had checked out the laptop. The lack of effort to locate the laptop undermines the argument that the school had “probable cause” to activate the TheftTrack system.

Further, the school's use of the web cam feature of TheftTrack violated the probable cause they had for tracking the location of the laptop. Information provided by the TheftTrack system, without the web cam feature, was more than sufficient to prove that Mr. Robbins had that laptop. The Vice Principal's use of the TheftTrack images was not legally sanctioned because by looking at them, and then using them to question Mr. Robbins' actions in his home, she went beyond using them for the express purpose of tracking the laptop's location.

For all the stated reasons, this Court finds that the respondent's use of the TheftTrack system to capture images of Mr. Robbins in his home was a violation of his right to privacy granted under the Fourth Amendment.

B.

Mr. Robbins is Owed Attorney’s Fees for all Actions Leading to Injunctions

Since the Plaintiff, Mr. Robbins, obtained a permanent injunction against the LMSD as a direct result of legal action in response to a violation of his rights and the constitution, according to 42 U.S.C. Section 1983 and 42 U.S.C Section 1988(b), he is owed reasonable attorney fees for the work both prior to and after March 14, 2010.

Appellants argue that the respondents were not entitled to fees because the LMSD initiated a change in policy after learning about the legal action and one day before being restrained by the Court. As addressed in the appellant brief:

The District, in fact, discontinued its use of the web-camera feature of TheftTrack on February 18th, 2010, upon learning of the complaints of the plaintiff filed on February 16th, 2010, resulting in a temporary restraining order on February 19th, 2010, that prohibited the remote activations already voluntarily ceased the day prior to this judicial injunction.

Xx no “ in block quotations

It is not reasonable to conclude that the school district’s actions were independent from the legal action that prompted them. The LMSD very clearly changed its policy in response to the restraining order initiated by the Court. The fact that the change in policy was issued 24 hours before they were ordered to cease monitoring of laptops does not make it a completely voluntary action, but rather is an acknowledgement of the impending court order. As the Parker v Califano decision noted, we cannot just look at the sequence of days in the abstract, but must instead provide “a close scrutiny of the totality of circumstances surrounding the settlement, focusing particularly on the necessity for bringing the action and whether the party is the successful party with respect to the central issue” Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C. 1976), aff’d sub nom. Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977). In fact, even without a court order, it is possible to claim fees for significant success on central issues: “The fact that respondent prevailed through a settlement rather than through litigation does not weaken her claim to fees” Maher v. Gagne, 448 U.S. 122, 129 (1980).

Further, even if the LMSD had initiated a change in policy before February 16th, 2010, Mr. Robbins would still be the prevailing party according to Buckhannon Bd. & Care Home v W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605, 212 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). Buckhannon held that to be a prevailing party, Mr. Robbins is required to demonstrate a "judicially sanctioned change in the legal relationship of the parties” (id). A restraining order against LMSD changes its legal relationship with Mr. Robbins, whether or not the district was in compliance already, just as having your driver’s license revoked changes whether you are able to legally drive a car, whether or not you were already planning on driving. The LMSD cannot now return to monitoring students remotely via web-cam, which is a judicially-sanctioned change. Mr. Robbins, having altered the LMSD’s ability to monitor students through legal action, was therefore a prevailing party.

Fees Awarded Prior to March 14, 2010 are Upheld.

Based on 42 U.S.C. Section 1983 and 42 U.S.C Section 1988(b), and the District Court for the Eastern District of Pennsylvania’s previous ruling on this case, Mr. Robbins is entitled to compensation for damages and reasonable attorney’s fees. Fees relating to violations of Mr. Robbins’ constitutional rights are also upheld, based on Justice Powell’s above decision.

Fees relating to attorney work prior to March 14th, 2010, as ordered by the District Court for the Eastern District of Pennsylvania, are upheld. Since Mr. Robbins is the prevailing party and demonstrated that the work being compensated was related to preliminary injunctive relief, which was ordered from February 23, 2010 to March 14, 2010, he is entitled to these compensatory fees.

Fees Incurred After March 14, 2010 Must be Compensated by the LMSD.

During the previous court’s decision, a permanent injunction had not yet been obtained, and therefore the respondents’ claim was correct that they should not be awarded fees for legal action at the time of the decision following March 14, 2010, the last date of an injunction. As Justice DuBois notes in his decision, “With respect to the fees covering work after May 14, 2010, to which defendants object, the Court concludes that these fees are not properly awarded to plaintiffs at this time because final injunctive relief has not yet been ordered.” Robbins v LMSD, 10-665 U.S. Dist. LEXIS 89524 p12 With that, a permanent injunction has been obtained as a direct result of legal action, and therefore it is now appropriate to award compensatory fees.

As Judge DuBois notes in his decision, “Plaintiffs must "prove that [their] request for attorney's fees is reasonable. To meet [this] burden, the fee petitioner must 'submit evidence supporting the hours worked and rates claimed.'" Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990) (quoting Hensley v. Eckerhard, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 20 (1983).” Therefore, the reimbursement reasonable to Mr. Robbins’ attorneys must accurately reflect the work done that relates to injunctions obtained. Since “Defendants [for LMSD - Farrell] do not dispute that the hourly rates submitted by plaintiffs are reasonable for attorneys of equivalent skill and experience,” we can use the previously-submitted hours for compensation, plus additional hours pursuant to the permanent injunction properly submitted to the court.

C. Pennsylvania Wiretapping and Electronic Surveillance Act is Non-Limiting and Superseded by Federal Legislation

The section of the Pennsylvania Wiretapping and Electronic Surveillance Act (PWESA) cited by the counsel for appellants provides guidelines on minimum compensation fees, and is therefore not a limiting factor in the calculation of attorney fees. Furthermore, because PWESA is a state law, whereas the charges relevant to this case are at a federal level involving violation of 4th Amendment protections, PWESA is not a controlling law in this case.

III.

For the reasons set forth above, respondent’s request is granted. All previously-ordered compensatory fees are upheld, and additional fees are awarded to the respondent based on 42 U.S.C. Section 1983 and 42 U.S.C Section 1988(b), for attorney fees after March 14, 2010.