Opinion
Nos. 20-6126 & 20-6137
04-08-2022
Patrick STEWART; Lorie Stewart, Plaintiffs - Appellants/Cross-AppzsDszellees, v. CITY OF OKLAHOMA CITY, a municipal corporation; William J. Citty, in his individual capacity; Vance Allen, in his individual capacity, Defendants - Appellees. and Richard Mahoney, in his individual capacity, Defendant - Appellee/Cross-Appellant.
Carl Hughes, of Hughes & Hughes, Edmond, Oklahoma, for the Plaintiffs - Appellants/Cross-Appellees. Richard N. Mann and Thomas Lee Tucker, Assistant Municipal Counselors (Kenneth Jordan, Municipal Counselor, Sherri R. Katz, Civil Litigation Division Chief, and Brett M. Logan, Assistant Municipal Counselor, with them on the brief), of the City of Oklahoma City, Oklahoma, for the Defendants - Appellees. John J. Love (Margaret McMorrow-Love with him on the briefs), of The Love Law Firm, Oklahoma City, Oklahoma, for the Defendant - Appellee/Cross-Appellant.
Carl Hughes, of Hughes & Hughes, Edmond, Oklahoma, for the Plaintiffs - Appellants/Cross-Appellees.
Richard N. Mann and Thomas Lee Tucker, Assistant Municipal Counselors (Kenneth Jordan, Municipal Counselor, Sherri R. Katz, Civil Litigation Division Chief, and Brett M. Logan, Assistant Municipal Counselor, with them on the brief), of the City of Oklahoma City, Oklahoma, for the Defendants - Appellees.
John J. Love (Margaret McMorrow-Love with him on the briefs), of The Love Law Firm, Oklahoma City, Oklahoma, for the Defendant - Appellee/Cross-Appellant.
Before TYMKOVICH, Chief Judge, LUCERO, Senior Circuit Judge, and MORITZ, Circuit Judge.
LUCERO, Senior Circuit Judge.
This case presents statutory and constitutional privacy issues arising from a domestic dispute involving an off-duty police officer. In June 2015, plaintiffs Patrick and Lorie Stewart ("the Stewarts") were involved in a verbal and physical altercation with Lorie's ex-husband. Audio and video recordings of that confrontation were used by defendants, Oklahoma City ("the City") and three municipal employees, in support of a disciplinary action against Patrick, a Major in the Oklahoma City Police Department ("OCPD"). The Stewarts subsequently brought this lawsuit, contending that defendants’ use of the recordings violated the Federal Wiretap Act ("FWA"), 18 U.S.C. § 2510 et seq. They also asserted claims under 42 U.S.C. § 1983 for infringements of their constitutional right to privacy. Summary judgment was granted to defendants on all claims. We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM .
Specifically, we hold that the Stewart recordings did not violate the FWA as a matter of law, and therefore the statutory claims based on their use and disclosure necessarily fail. Moreover, we agree with the district court that the Stewarts have not shown a constitutional privacy violation sufficient to support their § 1983 claims.
I
A
Patrick and Lorie Stewart met and began a relationship in 2010. At that time, Lorie was married to Charles Samples, a retired Oklahoma state trooper. Lorie and Samples divorced in 2011, and Lorie and Patrick married a year later. The Stewarts contend that, in 2010, Samples sought retribution against Patrick by attempting to interfere with Patrick's employment with OCPD. This included unsuccessful efforts to convince defendant William Citty, the then-police chief, to take disciplinary action against Patrick for his relationship with Lorie.
On the evening of July 25, 2015, the Stewarts attended a party at a friend's house, where each consumed multiple alcoholic beverages. Lorie and Samples’ two children, who Lorie had custody of that night, remained at the Stewarts’ home. Around 11 p.m., Lorie contacted the children, who were nine and thirteen years old at the time, to inform them that she and Patrick were leaving the party. Instead, the Stewarts stayed at the party until approximately 1:30 a.m. When Lorie and Patrick did not return home promptly, the children unsuccessfully tried calling and texting them. Finally, Lorie's daughter called her father, Samples, who picked up the children around midnight and drove them to his house in nearby Norman, Oklahoma.
As they left the party, the Stewarts learned the children were with Samples and decided to drive to his house. Lorie, who was driving, called Samples, and the two spoke on the phone for eighteen minutes. Charles asked his wife, Becky Samples, to secretly record part of the call. He later told investigators he wanted to record the interactions that evening because he suspected the Stewarts had been drinking and he did not know what might occur once they arrived at the house, and also because he wanted evidence of the night's events in case Lorie accused him of interfering with her custody of the children. During the recorded portion of the phone conversation, Charles questioned Lorie's sobriety, told her not to come to his house, and offered to drive the kids back to the Stewarts’ that night. Patrick, who was riding with Lorie, could be heard in the background cursing at Charles.
Patrick and Lorie arrived at the Samples’ house at approximately 2:20 a.m. Lorie went up to the door while Patrick waited near the car. Charles again advised Becky to secretly record the interaction. Once outside, Charles and Lorie conversed briefly. Charles then began performing a field sobriety test on Lorie in the front yard. Upon seeing this, Patrick approached and told his wife to stop the sobriety test. Patrick and Charles then engaged in a profane verbal and physical altercation in the front yard and street. Becky video recorded the entire incident, initially hiding inside the home and later moving outside as the confrontation escalated. Becky also called 911, though the Stewarts departed before Norman police arrived. Patrick and Charles filed police reports. Criminal charges were not filed.
Patrick Stewart informed his OCPD supervisors of the altercation, which prompted an internal affairs ("IA") investigation. Charles and Becky Samples were interviewed as part of the investigation and shared the recordings from that night. These recordings were discussed in the subsequent IA report compiled by defendant Vance Allen, an OCPD Captain. The Stewarts claim the recordings were edited by Charles, though IA investigators found no evidence of tampering.
OCPD eventually sustained nineteen allegations of misconduct against Patrick for violating various department policies. The sustained allegations included: being intoxicated in public; allowing his wife to drive while intoxicated; and engaging in a profane verbal and physical confrontation. Patrick was demoted from Major to Captain and placed on a one-year disciplinary probation.
In response to his demotion, Patrick filed a grievance with the City, which triggered arbitration. Prior to the arbitration, Allen provided the IA investigative file—including the recordings made by the Samples—to defendant Richard Mahoney, the attorney representing the City during the hearings. The recordings were offered into evidence and referred to during the arbitration proceedings.
The arbitrator later reversed OCPD's decision to demote Patrick, concluding this punishment was disproportionate compared to other disciplinary incidents for which the department had declined to demote the offending officers.
B
Following arbitration, the Stewarts filed this lawsuit. They asserted claims against all defendants for violating the FWA, which regulates and prohibits the willful interception, disclosure, and use of certain wire, oral, and electronic communications. 18 U.S.C. § 2510 et seq. Specifically, the Stewarts alleged the Samples unlawfully recorded them, and therefore defendants violated the FWA when they used the supposedly illegal recordings during the IA investigation and arbitration hearing. The Stewarts also asserted § 1983 claims against the City and Chief Citty in his individual capacity for invasion of their constitutional right to privacy.
The FWA was adopted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Pub. L. 90-351, 82 Stat. 197, 211-25. It was later amended by the Electronic Communications Privacy Act of 1986. Pub. L. 99-508, 100 Stat. 1848, 1848-59.
Defendants eventually filed motions for summary judgment, which the district court granted. On the FWA claims, the district court held that (1) the City could not be sued for violating the relevant substantive provisions of the statute, which apply only to "persons," and (2) the individual defendants were entitled to qualified immunity. In a footnote, the court rejected Mahoney's argument that he was entitled to absolute official immunity for his actions as the City's attorney at the arbitration hearing. With respect to the § 1983 claims, the court concluded the Stewarts had failed to introduce evidence showing a constitutional privacy violation.
The Stewarts appeal that ruling to us. Mahoney brings a conditional cross-appeal to challenge the district court's denial of official immunity.
II
We review the district court's grant of summary judgment de novo, drawing all reasonable factual inferences in the Stewarts’ favor. Throupe v. Univ. of Denver, 988 F.3d 1243, 1250 (10th Cir. 2021). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine "if a rational jury could find in favor of the nonmoving party on the evidence presented." EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). "[T]he relevant inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1179 (10th Cir. 2007) (quotation omitted). Furthermore, we may affirm a grant of summary judgment "on grounds other than those relied on by the district court when the record contains an adequate and independent basis for that result." Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
III
We begin with the Stewarts’ FWA claims. The Stewarts allege defendants violated various FWA provisions when they used and disclosed audio and video recordings of the June 2015 altercation during the IA investigation and subsequent arbitration hearing. See 18 U.S.C. §§ 2511(1)(c)-(d) ; 2515. These provisions share a common trait: they only prohibit the use of communications that were intercepted in violation of the FWA. Id.; see Thompson v. Dulaney, 970 F.2d 744, 749 (10th Cir. 1992) (to violate § 2511(1)(c)-(d), defendant must know or have reason to know the communications were obtained in violation of the statute); United States v. Davis, 780 F.2d 838, 846 (10th Cir. 1985) (no suppression required under § 2515 if the interception was lawful). As a threshold matter, then, the Stewarts’ FWA claims cannot succeed if the recordings in question were permissible under the FWA.
In relevant part, § 2511(1)(c) and (d) prohibit "intentionally disclos[ing]" or "intentionally us[ing]" the "contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection." § 2511(1)(c)-(d). In addition, § 2515 precludes the contents of communications obtained in violation of the FWA from being received in evidence at "any trial, hearing, or other proceeding." § 2515.
Although in their summary judgment briefing the City and the Stewarts addressed the issue of whether the recordings made by the Samples violated the FWA, the district court felt it unnecessary to decide the question. Rather, it granted summary judgment on the grounds that: (1) the City could not violate the substantive FWA provisions relied on by the Stewarts because they apply only to "persons"; and (2) the individual defendants were entitled to qualified immunity. Because "we can affirm on any ground supported by the record, so long as the appellant has had a fair opportunity to address that ground," Alpine Bank v. Hubbell, 555 F.3d 1097, 1108 (10th Cir. 2009) (quotation omitted), we first consider the antecedent issue of whether the recordings in question were obtained legally. If so, then the Stewarts’ FWA claims fail as a matter of law.
The district court rejected the Stewarts’ argument that qualified immunity is not available as a defense to FWA claims. Because we resolve the case on alternative grounds, we decline to address this issue.
In determining whether to exercise our discretion to affirm on alternative grounds, we consider three guiding factors: "[1] whether the ground was fully briefed and argued here and below; [2] whether the parties have had a fair opportunity to develop the factual record; and [3] whether, in light of factual findings to which we defer or uncontested facts, our decision would involve only questions of law." Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (cleaned up).
The Elkins factors are satisfied in this case. First, the issue of whether the recordings made by Charles and Becky Samples violated the FWA was raised and argued both below and on appeal. The Stewarts dedicate much of their reply brief to rebutting defendants’ argument that no illegal interceptions occurred in this case. Second, the Stewarts had ample opportunity to develop the factual record with respect to the legality of the Samples’ recordings. Along with the dozens of exhibits submitted in support of the summary judgment briefing, the Stewarts previously moved to suppress the recordings on the grounds that they violated the FWA, see § 2515, and submitted ample evidence in support of that motion. Finally, our decision as to whether a genuine and material dispute exists is a legal judgment based on undisputed facts. Accordingly, we exercise our discretion to consider whether the recordings at issue violated § 2511(1).
In particular, the Samples recorded two incidents used by OCPD in the disciplinary proceedings: (1) a video of the altercation outside the Samples’ home, and (2) an audio recording of the preceding phone conversation between Charles Samples and Lorie Stewart. As we explain below, we conclude that no reasonable jury could find on the evidence presented that the recordings were unlawful, meaning the Stewarts’ FWA claims necessarily fail. We therefore affirm the district court's grant of summary judgment on these claims.
A
Concerning the video recording of the altercation outside the Samples’ home, the FWA generally prohibits "intentionally intercept[ing] ... or procur[ing] any other person to intercept" any oral communications. § 2511(1)(a). An oral communication, as defined by the Act, includes only those statements "uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." § 2510(2). Accordingly, a plaintiff asserting an FWA violation for intercepted oral communications must show a reasonable expectation of privacy in those statements. See United States v. Longoria, 177 F.3d 1179, 1181-82 (10th Cir. 1999). The FWA's legislative history "shows that Congress intended [the Act's oral communication] definition to parallel the ‘reasonable expectation of privacy test’ articulated by the Supreme Court." United States v. Turner, 209 F.3d 1198, 1200 (10th Cir. 2000) (citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ); see also S. Rep. No. 90–1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2178.
The FWA does not protect intercepted video images. See United States v. Jackson, 213 F.3d 1269, 1280 (10th Cir. 2000), vacated on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000). Therefore, while Becky Samples recorded a video of the altercation, our analysis concerns only oral statements captured by that video.
Thus, for an oral communication to be protected by the FWA, "the court must conclude: (1) the defendant had an actual, subjective expectation of privacy—i.e., that his communications were not subject to interception; and (2) the defendant's expectation is one society would objectively consider reasonable." Longoria, 177 F.3d at 1181-82 (citing Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring)); see also United States v. Wells, 739 F.3d 511, 518 n.16 (10th Cir. 2014) ("There is not ... any material difference in analysis between [the FWA] and the Fourth Amendment."). We may assume for the purposes of this appeal that, based on the Stewarts’ undisputed assertions, they had an actual, subjective expectation that their oral statements would not be intercepted. See Longoria, 177 F.3d at 1182. The key question, then, is whether the Stewarts’ expectation of privacy in their statements outside the Samples’ home is one society would consider objectively reasonable. Id. We conclude it is not.
In Katz, the Supreme Court refined the proposition that there is not a reasonable expectation of privacy in activity "a person knowingly exposes to the public." 389 U.S. at 351, 88 S.Ct. 507. Statements exposed "to the plain view of outsiders ... are not protected under the Fourth Amendment because the speaker has not exhibited an intention to keep them to himself." Longoria, 177 F.3d at 1182 (quotations omitted). Thus, in Longoria, we held that a person who voluntarily entered a government informant's store had no reasonable expectation of privacy in clearly audible statements made in the informant's presence, meaning such statements were not "oral communications" under § 2510(2). Id. at 1183. And in United States v. Burns, 624 F.2d 95 (10th Cir. 1980), we concluded that the Fourth Amendment does not protect conversations overheard by law enforcement from a position they rightfully occupy. Id. at 100.
These cases lead us to conclude that the Stewarts lacked an objectively reasonable expectation of privacy in statements made during a profane altercation that occurred in full public view. The altercation between Charles Samples and Patrick Stewart occurred in the Samples’ front yard and street, and therefore would have been plainly visible—and audible—to any passersby. Plaintiffs plainly cannot have a reasonable expectation of privacy in these and other statements that were "exposed to the plain view of outsiders" by a speaker who "has not exhibited an intention to keep [statements] to himself." Longoria, 177 F.3d at 1182 ; see Burns, 624 F.2d at 100.
Plaintiffs nonetheless contend that certain statements captured on video would not have been audible to parties other than those present on the Samples’ property. They point to Lorie Stewart's initial conversation with Charles, which preceded the physical altercation involving Patrick. The Stewarts also argue Lorie was a "social invitee" on the Samples’ property to discuss private family matters. See, e.g., Wells, 739 F.3d at 521-22 (distinguishing between social and commercial guests in determining whether an individual has a reasonable expectation of privacy while on another's property). Based on these factors, the Stewarts claim that, at the very least, Lorie reasonably assumed her initial communications with Charles would remain private. But it is unclear how Lorie Stewart could be considered a "social invitee," given that she and Patrick showed up at the Samples residence uninvited, after 2 a.m., and in disregard of Charles Samples’ prior statements telling her not to come. At no point were Lorie or Patrick invited into the Samples’ house, and they remained on the property for a matter of minutes. Moreover, Lorie's statements outside the home were audible to at least one other person—Becky Samples, a resident of the property who overheard and recorded Lorie's statements from a position she was entitled to occupy. See Longoria, 177 F.3d at 1182 ; Burns, 624 F.2d at 100. Under these circumstances, we cannot say that Lorie's expectation of privacy in clearly audible statements made outside the Samples’ home is one that society would objectively consider reasonable. Longoria, 177 F.3d at 1181-82.
To the extent the Stewarts possessed a subjective expectation of privacy covering their statements and actions outside the Samples’ home and on a public street, this expectation was not reasonable. Their recorded statements were therefore not "oral communications" protected by the FWA.
B
That leaves only the interception of the preceding phone conversation between Charles and Lorie. In addition to oral communications, the FWA also prohibits intentionally intercepting, or procuring another to intercept, wire communications. § 2511(1)(a). This includes telephone conversations. See United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir. 1979). Unlike the oral communications discussed above, a plaintiff asserting an FWA claim for intercepted wire communications is not required to show an expectation of privacy in those communications. Compare § 2510(1), with § 2510(2).
The FWA's general prohibition on intercepting phone calls is subject to several exceptions. Of concern to our analysis is the one-party consent rule. See § 2511(2)(d). Under this provision, interception of a wire communication by or with the consent of any party to the communication is lawful, "unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State." Id.; see also Thompson, 970 F.2d at 748 ("[C]onsent ... will take many fact patterns out of [FWA] liability."). As the Second Circuit has explained, a "temporal thread" runs through the one-party consent rule. Caro v. Weintraub, 618 F.3d 94, 99 (2d Cir. 2010). The plain language of § 2511(2)(d) requires that we ask whether, at the time a communication was intercepted, the consenting party possessed a criminal or tortious intent. Id. at 99-100 ; see also Sussman v. Am. Broad. Cos., 186 F.3d 1200, 1202-03 (9th Cir. 1999) (tortious use of a recorded telephone conversation does not give rise to FWA liability where the recording was not made with a tortious purpose); Desnick v. Am. Broad. Cos., 44 F.3d 1345, 1353 (7th Cir. 1995) (same). In short, "[i]f, at the moment he hits ‘record,’ the offender does not intend to use the recording for criminal or tortious purposes, there is no violation." Caro, 618 F.3d at 100.
It is undisputed that Charles Samples was a party to the phone call with Lorie and consented to its interception when he procured Becky Samples to record the conversation. The Stewarts argued before the trial court, as they do before us, that the one-party consent rule does not apply because Charles made the recording with the allegedly tortious intent of interfering with Patrick's employment. See Wilspec Techs., Inc. v. DunAn Holding Grp., Co., 204 P.3d 69, 73 (Okla. 2009) (recognizing a common law tort for intentional interference with contractual relations).
On summary judgment review, we ask whether the record establishes a genuine dispute as to whether Charles made the recording with the express purpose of interfering with Patrick's job. Drawing all reasonable inferences in the Stewarts’ favor, we conclude no rational jury could find that Charles recorded the phone conversation for such a purpose. See Horizon/CMS Healthcare Corp., 220 F.3d at 1190. To the contrary, the circumstances of the phone call preclude such a conclusion. Lorie Stewart called Charles unexpectedly, in the middle of the night. The conversation took place exclusively between them; though the recording did capture Patrick swearing in the background. Plaintiffs argue, in essence, that upon being awakened by a 2 a.m. phone call from Lorie, Charles instantaneously formulated a plan to record that conversation to interfere with Patrick's job. Such a theory is farfetched, to say the least. This is particularly true given that Charles had no way to know what would occur—namely, that the Stewarts would show up at the Samples’ home and that a physical altercation would ensue. Indeed, Charles repeatedly told investigators he recorded the interactions precisely because he was not sure what would happen. See United States v. Underhill, 813 F.2d 105, 110 (6th Cir. 1987) (noting the purpose of § 2511(d)(2) to protect interceptions made to "preserve an accurate record of a conversation in order to prevent future distortions"); Caro, 618 F.3d at 99 (same).
Viewed against these facts, the Stewarts have failed to introduce sufficient direct or circumstantial evidence to allow a reasonable jury to conclude that Charles recorded the phone call with a tortious purpose. They primarily point to Charles Samples’ actions before and after the June 2015 altercation as evincing an intent to interfere with Patrick's job. Specifically, they cite: (1) Charles’ outreach to Chief Citty in 2010 urging him to discipline Patrick; (2) evidence that the recordings of the June 2015 altercation may have been edited; and (3) emails sent by Charles to Chief Citty after the June 2015 altercation requesting an update on the IA investigation. But Charles’ actions both five years before and days (or weeks) after the altercation are of limited probative value, given that our inquiry is confined to whether, "at the moment [the Samples] hit record," Charles intended to use the recording to interfere with Patrick's job. Caro, 618 F.3d at 100. Given the circumstances of the call and the ample contrary evidence cited by defendants, we conclude that the Stewarts have failed to show a genuine dispute as to whether Charles Samples recorded the phone call for the purpose of committing a tort against Patrick.
Because there is no genuine dispute that interception of the phone call was permissible under the one-party consent rule, § 2511(d)(2), defendants’ subsequent use of that recording did not, as a matter of law, run afoul of the FWA.
* * *
In sum, we hold that there is a lack of any genuine dispute of fact as to whether the Samples’ recordings violated the FWA. Because no reasonable jury could conclude that the recordings at issue were unlawful, the Stewarts’ FWA claims against defendants for using and disclosing them fail as a matter of law. Given that dispositive ruling, we need not consider, and express no opinion on, the district court's holdings on municipal liability and qualified immunity under the FWA.
In addition, our affirmance of the district court's grant of summary judgment on the FWA claims moots the official immunity claim raised in Mahoney's conditional cross-appeal. See Mason v. Okla. Tpk. Auth., 182 F.3d 1212, 1216 (10th Cir. 1999). We thus decline to address whether a municipal attorney is entitled to absolute immunity for official actions at an arbitration hearing.
IV
In addition to their FWA claims, the Stewarts seek damages under § 1983 from the City and Chief Citty in his individual capacity for invasion of their constitutional right to privacy. In granting summary judgment to defendants, the district court concluded that the Stewarts failed to introduce evidence showing a constitutional violation. See Mountain Highlands, LLC v. Hendricks, 616 F.3d 1167, 1170 (10th Cir. 2010) ("Failure of proof of an essential element renders all other facts immaterial." (quotation omitted)). We take the same view as the district court and hold that the Stewarts’ § 1983 claims likewise fail as a matter of law.
The Fourteenth Amendment's Due Process Clause "protects fundamental aspects of personal privacy against intrusion by the State." Mangels v. Pena, 789 F.2d 836, 839 (10th Cir. 1986). We have said this constitutional right to privacy guards two kinds of interests: "[1] the individual's interest in avoiding disclosure of personal matters and [2] the interest in being independent when making certain kinds of personal decisions." Aid for Women v. Foulston, 441 F.3d 1101, 1116 (10th Cir. 2006). The Stewarts claim violations of both types of privacy interests. They first argue that defendants unconstitutionally disclosed certain personal information in connection with Patrick Stewart's disciplinary proceedings. The Stewarts next assert that defendants’ interpretation and application of OCPD policies impermissibly intruded on private family decisions. We amplify both.
A
We have long held that the constitutional right to privacy prohibits the government from inquiring into or disclosing private information "in which it does not have a legitimate and proper interest." Id. at 1116 (quotation omitted); see also Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000) ; Eastwood v. Dep't of Corrs., 846 F.2d 627, 630-32 (10th Cir. 1988). This is referred to as the right to "informational privacy." Foulston, 441 F.3d at 1116. To analyze an informational privacy claim, we consider: "(1) if the party asserting the right has a legitimate expectation of privacy in that information, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner." Stidham v. Peace Officer Standards & Training, 265 F.3d 1144, 1155 (10th Cir. 2001) (cleaned up). If the first of these factors is not met, we need not consider the other two. Id. To show a legitimate expectation of privacy under this test, the information at issue must be "highly personal or intimate" and not "readily available to the public." Nilson v. Layton City, 45 F.3d 369, 372 (10th Cir. 1995).
Our recent decision in Leiser v. Moore, 903 F.3d 1137 (10th Cir. 2018), does not change our analysis. In Leiser, we noted that the Supreme Court has never expressly recognized an informational privacy right and cited recent Court precedent indicating that the existence of such a right remained "an open question." Id. at 1141-44 (discussing NASA v. Nelson, 562 U.S. 134, 131 S.Ct. 746, 178 L.Ed.2d 667 (2011) ). But Leiser only considered whether the existence of a privacy right in personal medical information was clearly established for qualified immunity purposes, and expressly declined to say that our informational privacy precedents had been overruled. Id. at 1144.
As an initial matter, the Stewarts’ briefing fails to articulate precisely what information they seek constitutional protection of. Rather, the Stewarts appear to object generally to OCPD's inquiring into Patrick and Lorie's marital history, their relationship with Charles Samples, and their conduct on the night of the June 2015 altercation. See Eastwood, 846 F.2d at 631 (recognizing a violation of the plaintiff's informational privacy right when they were forced to answer "irrelevant and embarrassing questions"). The Stewarts also point to various passages of the IA investigation and the published arbitration decision as supposedly containing private material. But these passages merely contain basic biographical and background information about the parties and their relationships to one another. We are skeptical that this information is "highly personal or intimate" so as to merit constitutional protection. Nilson, 45 F.3d at 372.
Even were the Stewarts able to point to any record evidence of disclosed information in which they possessed a legitimate expectation of privacy, their claim would yet fail because such disclosures served a compelling state interest and were accomplished in the least intrusive manner. See Stidham, 265 F.3d at 1155. Of course, the state has a compelling interest in holding police officers accountable for misconduct. See Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008). In this case, OCPD's investigation served this compelling interest. The incident in question pertained to a late-night, verbal and physical altercation involving a high-ranking officer, and included allegations of public intoxication, driving while intoxicated, and assault. Indeed, police responded to the Samples’ home immediately after the incident, and both Patrick and Charles filed police reports. One would naturally expect that OCPD would investigate the altercation, and that the investigation would entail inquiring into the Stewarts’ relationship to the Samples, the dynamics between the families, and the Stewarts’ conduct leading up to the incident. Furthermore, any disclosure of personal information in the IA report and at the arbitration hearing was minimal and narrowly tailored to serving the state's compelling interest in investigating and disciplining misconduct by its police officers. Therefore, the district court's sufficiency of the evidence ruling is sustained.
B
The Stewarts also assert that OCPD's personnel conduct policies, as interpreted and applied by defendants, impermissibly infringed their right to make certain family and associational decisions free from government interference. See Foulston, 441 F.3d at 1116. Though the Stewarts’ arguments on this point are threadbare, we understand them to be making a substantive due process claim under the fundamental-rights framework set forth in Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). See Abdi v. Wray, 942 F.3d 1019, 1027 (10th Cir. 2019) (applying fundamental-rights analysis to plaintiff's challenge of a government agency's interpretation and application of its official policies); Maehr v. U.S. Dep't of State, 5 F.4th 1100, 1117 (10th Cir. 2021) (same).
Our fundamental-rights analysis follows in three steps. First, we consider "whether a fundamental right is at stake either because the Supreme Court or the Tenth Circuit has already determined that it exists or because the right claimed ... is objectively among those ‘deeply rooted in this Nation's history and tradition’ and ‘implicit in the concept of ordered liberty.’ " Abdi, 942 F.3d at 1028 (quoting Glucksberg, 521 U.S. at 720-21, 117 S.Ct. 2258 ). Next, we ask whether the claimed right "has been infringed through either total prohibition or direct and substantial interference." Id. (cleaned up). Finally, if a right has been infringed, we generally apply either strict scrutiny (if the right is fundamental) or rational basis review (if the right is not fundamental). Id.
In this case, the Stewarts contend that the threat of future OCPD investigations into off-duty conflicts between Patrick and Charles has chilled their exercise of fundamental liberty interests related to marriage, family life, and child rearing. See Seegmiller, 528 F.3d at 770-71 (recognizing these rights as fundamental). Specifically, they note that Patrick has been unable to attend various social and family events at which Charles might be present out of fear that additional altercations may occur, prompting OCPD investigations. At bottom, the Stewarts claim that the application of OCPD's conduct policies to punish Patrick's private, off-duty acts has impaired their interest in "having full enjoyment of their marriage without fear that the City of Oklahoma City will insert itself into any dispute created by Charles Samples." Op. Br. at 57.
This claim cannot survive summary judgment because the Stewarts have failed to introduce any evidence of a direct and substantial burden on any family or marital interests—fundamental or otherwise. See Abdi, 942 F.3d at 1028. A state may enforce reasonable regulations that impose incidental and non-substantial burdens on even fundamental rights. See Zablocki v. Redhail, 434 U.S. 374, 386-87, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978). In this case, defendants have never purported to interfere with the marital and family interests cited by the Stewarts. Rather, OCPD disciplined Patrick for public and possibly illegal acts in violation of its code of conduct. It was undoubtedly reasonable for the department to do so. See Seegmiller, 528 F.3d at 772 (calling it "reasonable" for a police department to reprimand an officer for violating its code of conduct "when the department believes it will further internal discipline or the public's respect for its police officers and the department they represent"). To the extent that such discipline caused Patrick to avoid future settings at which Charles might be present, such familial impacts are purely incidental to OCPD's reasonable efforts to promote internal discipline and public respect for the department. Moreover, we cannot say that voluntarily declining to attend a handful of family and social events constitutes a "total prohibition or direct and substantial interference" with any marital, familial, or associational right. Abdi, 942 F.3d at 1028.
The Stewarts argue that OCPD's conduct policies are unreasonable to the extent that they allow discipline for conduct absent a showing of a tangible, adverse effect on the department. But we have emphasized that "a police department may, in accordance with its well-established duty to keep peace, place demands upon the members of the police force which have no counterpart with respect to the public at large." Seegmiller, 528 F.3d at 772 (cleaned up). In this case, it was clearly reasonable for OCPD to punish Patrick for public violations of its conduct policy on the theory that such conduct could impair internal discipline or damage the department's public image.
Because the Stewarts have failed to point to any evidence of a significant burden on their marital or family rights, their fundamental-rights claim—like the informational privacy claim discussed above—fails as a matter of law. See Mountain Highlands, 616 F.3d at 1170. The district court was correct to grant summary judgment to the City and Chief Citty on the Stewarts’ § 1983 claims.
V
For the reasons stated, we AFFIRM the district court's grant of summary judgment to defendants. The conditional cross-appeal is moot.