Order granting rehearing en banc filed 7/30/97;
published opininion of 4/11/97 is vacated
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES H. WILSON; GERALDINE E.
WILSON; RAQUEL WILSON, next
friend/mother of Valencia Snowden,
a minor,
Plaintiffs-Appellees,

v.

HARRY LAYNE, Deputy, United
States Marshal, Supervisor for the
Washington Area, Operation
Gunsmoke; JOSEPH L. PERKINS;
JAMES A. OLIVO,                      No. 96-1185
Defendants-Appellants,

and

RAYMOND M. KIGHT, Sheriff,
Montgomery County, Maryland;
JOHN DOE, Unknown Sheriff's
Deputies; JOHN DOE, Unknown U.S.
Marshals; UNITED STATES OF
AMERICA; ERIC E. RUNION; MARK A.
COLLINS; BRIAN E. ROYNESTAD,
Defendants.
CHARLES H. WILSON; GERALDINE E.
WILSON; RAQUEL WILSON, next
friend/mother of Valencia Snowden,
a minor,
Plaintiffs-Appellees,

v.

MARK A. COLLINS; ERIC E. RUNION;
BRIAN E. ROYNESTAD,
Defendants-Appellants,

and
                                                               No. 96-1188
RAYMOND M. KIGHT, Sheriff,
Montgomery County, Maryland;
JOHN DOE, Unknown Sheriff's
Deputies; HARRY LAYNE, Deputy,
United States Marshal, Supervisor
for the Washington Area, Operation
Gunsmoke; JOHN DOE, Unknown
U.S. Marshals; UNITED STATES OF
AMERICA; JOSEPH L. PERKINS;
JAMES A. OLIVO,
Defendants.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-1718-PJM)

Argued: January 30, 1997

Decided: April 11, 1997

Before RUSSELL and WILKINS, Circuit Judges, and
HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

                   2
Reversed by published opinion. Judge Wilkins wrote the majority
opinion, in which Judge Herlong joined. Judge Russell wrote a dis-
senting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Adams Cordray, Grove City, Ohio, for Appel-
lants. James Stephen Felt, STEPTOE & JOHNSON, L.L.P., Washing-
ton, D.C., for Appellees. ON BRIEF: Stuart M. Nathan, John B.
Howard, Jr., OFFICE OF THE ATTORNEY GENERAL OF MARY-
LAND, Baltimore, Maryland, for Appellants Collins, Runion, and
Roynestad. David H. Coburn, STEPTOE & JOHNSON, L.L.P.,
Washington, D.C.; Richard Seligman, Washington, D.C.; Arthur B.
Spitzer, AMERICAN CIVIL LIBERTIES UNION OF THE
NATIONAL CAPITAL AREA, Washington, D.C., for Appellees.

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Charles H. Wilson and Geraldine E. Wilson (the Wilsons)1 brought
this action against federal and state law enforcement officers and oth-
ers not pertinent to this appeal. The Wilsons allege that their Fourth
and Fourteenth Amendment rights were violated when officers
entered their home and sought to execute an arrest warrant for their
son. See 42 U.S.C.A. § 1983 (West 1994); Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-97
(1971). The district court granted summary judgment in part in favor
of the officers, but refused to do so on the Wilsons' claim that the
officers violated the Fourth Amendment by permitting two newspaper
reporters to accompany them into the Wilsons' home and photograph
_________________________________________________________________

1 Raquel Wilson joined the Wilsons as a plaintiff in this action on
behalf of her daughter Valencia Snowden, the Wilson's grandchild who
was present during a portion of the actions that form the basis of this
lawsuit. For ease of reference, however, we refer only to the Wilsons as
prosecuting this litigation.

                    3
the officers' attempt to execute the arrest warrant. The officers appeal
from the decision of the district court denying them qualified immu-
nity with respect to this claim. We reverse.

I.

The material facts are not disputed. On April 14, 1992, federal and
state law enforcement agents were engaged in a joint effort to appre-
hend fugitives with a history of armed, violent, criminal conduct. A
team composed of Joseph L. Perkins and James A. Olivo of the
United States Marshals Service and Mark A. Collins, Brian E. Royne-
stad, and Eric E. Runion of the Montgomery County, Maryland Sher-
iff's Department was formed to execute an outstanding arrest warrant.
The warrant stated:

          THE STATE OF MARYLAND, TO ANY DULY AUTHO-
          RIZED PEACE OFFICER, GREETINGS: YOU ARE
          HEREBY COMMANDED TO TAKE DOMINIC JEROME
          WILSON IF HE/SHE BE FOUND IN YOUR BAILIWICK
          ....

J.A. 124. In addition, two newspaper reporters, one outfitted with a
stillshot camera, were to accompany the officers to observe and
chronicle the execution of the warrant. The reporters' participation
was part of a two-week, news-gathering investigation by the newspa-
per; it was not designed to serve any legitimate law enforcement pur-
pose.

During the early morning hours, the officers proceeded to the
address listed in police reports, as well as probation and court records,
as the fugitive's home. Upon entering the residence, the officers
encountered a man dressed only in undergarments who was very
angry because of the intrusion. The confrontation between the man
and the officers ultimately resulted in the officers subduing the man
on the floor. In the meantime, a woman dressed in a sheer nightgown
emerged from the back of the house. These two individuals were later
identified as the Wilsons. The subject of the warrant, the Wilsons'

                     4
son, was not present. Throughout these events, the reporters observed
and photographed what transpired.2

The Wilsons subsequently brought this action against the federal
and state officers who comprised the arrest team that entered their
home, the team's supervisor, Harry Layne, and others not pertinent to
this appeal. The Wilsons asserted that their constitutional rights under
the Fourth and Fourteenth Amendments were violated by the officers'
actions in three ways: (1) the officers used excessive force in attempt-
ing to execute the arrest warrant; (2) the officers lacked probable
cause to believe that the fugitive would be found at the Wilsons'
home; and (3) the officers permitted representatives of the media to
enter the Wilsons' home to observe and photograph the execution of
the arrest warrant. Ruling on the officers' motion for summary judg-
ment, the district court dismissed the allegations of use of excessive
force and lack of probable cause, concluding that the evidence viewed
in the light most favorable to the Wilsons demonstrated that the
amount of force the officers employed was reasonable and that the
officers possessed probable cause to believe that the fugitive they
sought would be found at the Wilsons' home. However, the district
court rejected the officers' assertions that allowing the reporters to
enter the Wilsons' home without their consent did not violate their
constitutional rights. Furthermore, the district court refused to accept
the officers' alternative argument that, at a minimum, they were enti-
tled to qualified immunity because in April 1992, the law was not
clearly established that permitting members of the media to accom-
pany law enforcement officers into a private residence during the exe-
cution of an arrest warrant was unconstitutional. The officers appeal
this latter ruling.3
_________________________________________________________________

2 These photographs have never been published.

3 The district court denied the Wilsons' request to certify for immediate
appeal its rulings with respect to the allegations of use of excessive force
and lack of probable cause to permit those issues to be considered in con-
junction with the appeal of the question of the officers' entitlement to
qualified immunity. As a result, the only issue pending before us is the
qualified immunity inquiry. And, because the facts are undisputed, this
question presents a purely legal inquiry into whether the law was clearly
established when the underlying events occurred. Thus, we may properly
consider this appeal. See Johnson v. Jones, 115 S. Ct. 2151, 2159 (1995);
Winfield v. Bass, 106 F.3d 525, 528-30 (4th Cir. 1997) (en banc).

                    5
II.

A.

Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." E.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);
Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc). In ana-
lyzing an appeal from the rejection of a qualified immunity defense,
our first task is to identify the specific right that the plaintiff asserts
was infringed by the challenged conduct. Taylor v. Waters, 81 F.3d
429, 433 (4th Cir. 1996). The court then must consider whether, at the
time of the claimed violation, this right was clearly established and
"`whether a reasonable person in the official's position would have
known that his conduct would violate that right.'" Id. (quoting
Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992)).

The constitutional right that the Wilsons claim the officers violated,
defined at the appropriate level of specificity, is their Fourth Amend-
ment right to avoid unreasonable searches or seizures resulting from
the officers' decision to permit members of the media, who were not
authorized to execute the warrant and were not present to aid law
enforcement efforts, to enter into a private residence, without the
homeowners' consent, to observe and photograph the execution of an
arrest warrant. The question before us, then, is whether in April 1992
this right was clearly established and whether a reasonable officer
would have understood that the conduct at issue violated it.

B.

Early cases considering the constitutionality of law enforcement
officers allowing members of the media to enter a private residence
to observe or record the execution of a warrant are scarce. But, the
few decisions that we have located on this issue are uniform in con-
cluding that such conduct does not violate constitutional principles.
See Moncrief v. Hanton, 10 Media L. Rep. (BNA) 1620, 1621-22
(N.D. Ohio Jan. 6, 1984) (rejecting argument that police violated the
Fourth Amendment by permitting media to enter home and film arrest

                     6
on the basis that no protected privacy interest was violated); Higbee
v. Times-Advocate, 5 Media L. Rep. (BNA) 2372, 2372-73 (S.D. Cal.
Jan. 9, 1980) (declining to accept plaintiff's assertion that officers
violated his constitutional rights by inviting the press to be present
during the execution of a search warrant at his residence); Prahl v.
Brosamle, 295 N.W.2d 768, 774 (Wis. Ct. App. 1980) (rejecting
claim that officers infringed the Fourth Amendment by allowing a
television reporter to enter plaintiff's property and film search, rea-
soning "that the filming and television broadcast of a reasonable
search and seizure, without more, [do not] result in unreasonable-
ness").

Subsequently, in Bills v. Aseltine, 958 F.2d 697 (6th Cir. 1992),
which was decided approximately one month prior to the incident
under review, the court held that law enforcement officers may vio-
late the Fourth Amendment by permitting a security guard to accom-
pany them into a private residence to execute a search warrant and to
engage in a search for items that were not described in the warrant.
Id. at 701-05. The court explained:

          [W]here an intrusion is justified, whether by warrant or by
          probable cause and exigent circumstances, police are tempo-
          rarily placed in control of the premises and its occupants. It
          is as though the premises were given to the officers in trust
          for such time as may be required to execute their search in
          safety and then depart. Officers in unquestioned command
          of a dwelling may violate that trust and exceed the scope of
          the authority implicitly granted them by their warrant when
          they permit unauthorized invasions of privacy by third par-
          ties who have no connection to the search warrant or the
          officers' purposes for being on the premises. The warrant in
          this case implicitly authorized the police officers to control
          and secure the premises during their search . . . . It did not
          implicitly authorize them to invite a private security officer
          to tour plaintiff's home for the purpose of finding[evidence
          not specified in the search warrant] . . . .

Id. at 704-05 (internal quotation marks omitted). Based on this rea-
soning, the Court of Appeals for the Sixth Circuit held that the offi-
cers' conduct presented a jury question concerning whether the

                    7
officers had exceeded the scope of the search warrant and remanded
for further proceedings. Id. at 705.

Such was the state of the law in April 1992 when the events under-
lying this litigation occurred. No court had held unconstitutional con-
duct similar to that in which the officers here engaged, and in fact
those courts addressing the constitutionality of similar conduct had
expressly upheld it. Moreover, the only court to have found a consti-
tutional problem with a third party accompanying officers to execute
a warrant had done so under circumstances in which the officers had
exceeded the scope of the warrant by allowing the third party to
undertake an independent search for items that were not specified in
the warrant--circumstances remarkably unlike those presented by this
action.

Subsequent to the events underlying this action, the Court of
Appeals for the Second Circuit addressed exactly the question pres-
ented here in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), and held
that it was clearly established in March 1992 that officers violated the
Fourth Amendment when they permitted a television crew to enter a
private residence and film the execution of a search warrant that pro-
vided no authorization for their presence. Id. at 684-86. The court rea-
soned that although there were no decisions expressly holding that
searching agents violate the Constitution by bringing members of the
press into a home to observe and report on their activities, it had

          long been established that the objectives of the Fourth
          Amendment are to preserve the right of privacy to the maxi-
          mum extent consistent with reasonable exercise of law
          enforcement duties and that, in the normal situations where
          warrants are required, law enforcement officers' invasion of
          the privacy of a home must be grounded on either the
          express terms of a warrant or the implied authority to take
          reasonable law enforcement actions related to the execution
          of the warrant. [The defendant officer] exceeded well-
          established principles when he brought into the Ayeni home
          persons who were neither authorized by the warrant to be
          there nor serving any legitimate law enforcement purpose by
          being there.

                    8
Id. at 686. Furthermore, the court held that an objectively reasonable
officer could not have failed to appreciate "that inviting a television
crew--or any third party not providing assistance to law enforcement
--to participate in a search was [not] in accordance with Fourth
Amendment requirements." Id.

The Court of Appeals for the Eighth Circuit, however, on materi-
ally identical facts, reached the opposite conclusion in Parker v.
Boyer, 93 F.3d 445 (8th Cir. 1996), cert. denied, 117 S. Ct. 1081
(1997), also decided after the events relevant to this litigation. Rely-
ing on the dearth of authority holding the conduct in question to be
violative of the Fourth Amendment, the existence of decisions hold-
ing that these types of actions by law enforcement officers did not
transgress constitutional principles, and the lack of Supreme Court
direction on the question, the Parker court held that officers were
entitled to qualified immunity. Id. at 447. We agree.

Qualified immunity protects "all but the plainly incompetent or
those who knowingly violate the law." Malley v. Briggs, 475 U.S.
335, 341 (1986). It protects law enforcement officers from "bad
guesses in gray areas" and ensures that they are liable only for "trans-
gressing bright lines." See Maciariello v. Sumner, 973 F.2d 295, 298
(4th Cir. 1992). Thus, although the exact conduct at issue need not
have been held to be unlawful in order for the law governing an offi-
cer's actions to be clearly established, the existing authority must be
such that the unlawfulness of the conduct is manifest. See Anderson
v. Creighton, 483 U.S. 635, 640 (1987). When these officers acted,
however, the smidgen of case law that had considered the constitu-
tionality of permitting the media to accompany officers into a private
residence while they executed a warrant had found no constitutional
infirmity with the practice.4 Further, we cannot agree with the Court
_________________________________________________________________

4 In support of their contention that the law was clearly established, the
Wilsons also rely on Houchins v. KQED, Inc., 438 U.S. 1 (1978). This
case is inapposite. In Houchins, the Supreme Court considered whether
First Amendment rights asserted by a television station were violated by
prohibiting representatives of the station from filming inside a prison. A
plurality of the Court--in a footnote to a recitation of the explanations
offered by prison officials for preventing the filming, one of which was
that it would infringe on inmate privacy--wrote that inmates "retain cer-

                     9
of Appeals for the Second Circuit that simply because the objective
of the Fourth Amendment is to preserve privacy in the home to the
greatest extent possible consistent with reasonable law enforcement
efforts, the unlawfulness of the officers' conduct must have been
apparent. See DiMeglio v. Haines, 45 F.3d 790, 803-04 (4th Cir.
1995) (explaining the importance of examining the law at the appro-
priate level of particularity to decide whether it is clearly established
to such an extent that a reasonable officer would understand the ille-
gality of the conduct at issue).

We stress that we are not called upon to determine whether the
officers' conduct was constitutional or appropriate, only whether the
legal landscape when these events occurred was sufficiently devel-
oped that it would have been obvious to reasonable officers that the
actions at issue were violative of the Fourth Amendment. Because in
April 1992 it was not clearly established that permitting media repre-
sentatives to accompany law enforcement officers into a private resi-
dence to observe and photograph their attempt to execute a warrant
would violate the homeowner's constitutional rights, we hold that
these officers are entitled to qualified immunity.5 Consequently, we
_________________________________________________________________

tain fundamental rights of privacy; they are not like animals in a zoo to
be filmed and photographed at will by the public or by media reporters,
however `educational' the process may be for others." Id. at 5 n.2. This
footnote provides no support for the existence of a clearly established
Fourth Amendment right prohibiting a law enforcement officer from per-
mitting a member of the media to accompany him into a private resi-
dence during the execution of an arrest warrant.

5 Our decision in Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995),
does not dictate a contrary result. The facts underlying Buonocore were
essentially identical to those at issue in Bills: Officers allowed a security
guard to enter a private residence and conduct a search for property not
authorized by a warrant. In the appeal from the denial of summary judg-
ment to the officers, we characterized the issue presented as whether it
was clearly established on November 24, 1992 that "Fourth Amendment
law prohibited government agents from bringing a private citizen into
Buonocore's home to conduct an independent, general search for items
not identified in any warrant." Id. at 353 (internal quotation marks omit-
ted). And, we held that it was, reasoning:

                     10
reverse the decision of the district court refusing to grant summary
judgment in favor of the officers.

REVERSED

RUSSELL, Circuit Judge, dissenting:

I cannot agree with the majority's disposition that the officers have
not violated clearly established law. The Fourth Amendment prohibits
"unreasonable searches and seizures." It is not reasonable for officers
to invite reporters into a private home while they execute an arrest
_________________________________________________________________

          [W]e have no doubt that the Fourth Amendment prohibits gov-
          ernment agents from allowing a search warrant to be used to
          facilitate a private individual's independent search of another's
          home for items unrelated to those specified in the warrant. Such
          a search is not reasonable. It obviously exceeds the scope of the
          required specific warrant and furthermore violates the sanctity of
          private dwellings.

Id. at 356 (internal quotation marks omitted). Buonocore, therefore,
addressed the question of whether a third party, who is not authorized by
the warrant to conduct a search, may accompany law enforcement offi-
cers in executing a warrant and undertake an independent search for
items not described in the warrant--an issue much different than the one
presented to us.

Here, the Wilsons agree that the reporters who accompanied the offi-
cers into their home did not engage in a search of, or intrude into, any
areas of their home into which the officers would not have been permit-
ted to go. Moreover, the Supreme Court has indicated that a seizure only
occurs when there has been a "meaningful interference with an individu-
al's possessory interests in . . . property"--a circumstance not alleged
here. United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also
Arizona v. Hicks, 480 U.S. 321, 324 (1987) (recording the serial numbers
on equipment "did not meaningfully interfere with respondent's posses-
sory interest in either the serial numbers or the equipment, and therefore
did not amount to a seizure" (internal quotation marks omitted). But see
Ayeni, 35 F.3d at 688. Although an application of this definition indicates
that the photographic images captured by the reporters were not seized
within the meaning of the Fourth Amendment, we need not decide this
issue because, at a minimum, it was not clearly established that it was.

                    11
warrant. In this case, the act of bringing reporters into the Wilsons'
home, and allowing them to take photographs and remain in the
home, was particularly unreasonable. The officers clearly had the
wrong man, and the reporters, complete strangers to the Wilsons, pho-
tographed them in embarrassing states of undress.

At 6:45 in the morning, plainclothes officers entered the Wilsons'
home while Mr. and Mrs. Wilson were lying in bed. Hearing a com-
motion, Mr. Wilson, wearing only his undershorts, got up to investi-
gate, and encountered a number of plainclothes officers with guns in
his living room. When Mrs. Wilson, wearing only a thin, sheer night-
gown, came out of the bedroom, she found her husband face down on
the floor with an officer holding a gun to his head.

The officers should have immediately realized that Charles Wilson
was not Dominic Wilson. A photograph and description of Dominic
Wilson given to the officers identified him as 27 years old, 185
pounds and clean shaven. Charles Wilson, Dominic's father, was 47,
weighed 220 pounds, and wore a beard that was almost completely
white. Nonetheless, Charles Wilson was kept face down on the floor
for at least 10 minutes while the police determined that Dominic Wil-
son was not in the house.

While all this was going on, two Washington Post reporters took
photographs of the scene and the interior of the Wilsons' home. The
reporters, a male and a female, had entered the Wilsons' home with
the officers and at their invitation.

I believe the officers acted unreasonably in this case, first by allow-
ing the reporters into the home, and then by permitting them to take
photographs of Mr. Wilson face down on the floor in his undershorts,
and Mrs. Wilson in her sheer nightgown. I agree with the Second Cir-
cuit's analysis that Fourth Amendment jurisprudence long ago clearly
established that police may not invite reporters into private homes
when they are executing warrants if those reporters are neither "ex-
pressly nor impliedly authorized to be there." Ayeni v. Mottola, 35
F.3d 680, 686 (2d Cir. 1994). Furthermore, the majority reads our
opinion in Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995), too nar-
rowly. Although the strict holding of Buonocore addressed the issue
of third parties who accompanied officers on the execution of a search

                    12
warrant, and then exceeded the limits of the warrant, the opinion can
be fairly read to prohibit "government agents from bringing a private
citizen into [the Wilsons'] home" whose presence is unrelated to the
execution of the warrant. Id. at 353.

Finally, because the Supreme Court is not likely to offer guidance
in this area anytime soon, see Parker v. Boyer, No. 96-883, 1997 WL
73486 (U.S. Feb. 24, 1997), denying cert. to 93 F.3d 445 (8th Cir.
1996) (no clearly established law prevented reporters from entering
private home with police), I would use this opportunity to apply the
analyses of Ayeni and Buonocore to these facts.

I respectfully dissent.

                     13
