Opinion
CAUSE NO. SA-01-CA-1160-OG
June 11, 2002
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION TO DISMISS
Before the Court is the motion to dismiss for failure to state a claim filed by defendants City of Seguin and Officer Jesse Treviño. FED. R. CIV. P. 12(b)(6). A claim will not be dismissed on a Rule 12(b)(6) motion unless it appears to a certainty (1) that no relief can be granted under any set of facts provable in support of its allegations, or (2) that the allegations, accepted as true, do not present a claim upon which relief legally can be obtained. Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988). The Court will accept the well-pleaded allegations in the compliant as true, construe those allegations in the light most favorable to the plaintiff, and draw all inferences in his favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Truman v. United States, 26 F.3d 592, 594 (5th Cir. 1994).
The third defendant is the City of Seguin's police department. A city police department has no jural existence and cannot be sued independently of the city. Darby v. Pasadena Police Dept., 939 F.2d 311, 313-14 (5th Cir. 1991).
The facts alleged by plaintiff Anthony "Lucky" Tomblin, and accepted as true for the purposes of this motion, are simple and straightforward. Seguin police officer Jesse Treviño stopped Tomblin for speeding. Treviño requested Tomblin's social security number (SSN), stating it was official city policy to make such a request. Tomblin refused, and Treviño told him he would be arrested if he did not provide his SSN. Under this threat, Tomblin disclosed his SSN to Treviño. Tomblin brought this suit under 42 U.S.C. § 1983 alleging a violation of his right to privacy guaranteed by the Fourth Amendment of the United States Constitution and the Texas Constitution. He also asserted a state law claim for invasion of privacy. Tomblin seeks a declaratory judgment, monetary damages, attorney's fees, and costs.
Treviño asserts qualified immunity. The qualified immunity inquiry has two parts. First, a court must determine whether the plaintiff has alleged the violation of a clearly established constitutional or statutory right. Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 223 (5th Cir. 1999). If the plaintiff has done so, the court must then decide if the defendant's conduct was objectively reasonable in light of clearly established law at the time that the challenged conduct occurred. Id. The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991). A legal right is clearly established if the contours of the right are sufficiently clear that reasonable officials would understand that what they were doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987); Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994). To determine if a legal principle is "clearly established," the Court looks only to Supreme Court and Fifth Circuit precedent. Brady v. Fort Bend County, 58 F.3d 173, 175-76 (5th Cir. 1995); Boddie v. City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir. 1993).
It is not clearly established that a police officer at a traffic stop violates a right to privacy guaranteed by the Fourth Amendment by demanding the driver's SSN under threat of arrest. Tomblin cites general case law addressing the right to privacy and recognizing a privacy interest in one's SSN, but none clearly establishes the right to withhold the number from a law enforcement officer during a traffic stop. The only case he cites of arguable relevance is Sherman v. United States Dept. of the Army, 244 F.3d 357 (5th Cir. 2001). Sherman was an action brought against the Army under the Freedom of Information Act (FOIA) to require it to produce records without first redacting the SSNs of Army personnel. While the court recognized an individual's "substantial" privacy interest in his or her SSN, 244 F.3d at 365, that case, unlike this one, turned on the application of the FOIA exemption 6 balancing test. The court recognized no constitutionally protected right to privacy in an individual's SSN.
While there need not have been a specific ruling squarely on point for the issue in question, the law must have been sufficiently clear to put the official on notice of the impropriety of his actions. Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997). The question "is not whether the law was settled, viewed abstractly, but whether, measured by an objective standard, a reasonable officer would know that his action was illegal." Click v. Copeland, 970 F.2d 106, 109 (5th Cir. 1992) (internal quotations omitted).
Because Tomblin's allegations cannot establish the violation of a clearly established constitutional right, Treviño is entitled to qualified immunity from Tomblin's federal claims. Saucier v. Katz, 533 U.S. 194, 201 (2001).
Government employees in Texas are entitled to official immunity from suit arising from the performance of (1) their discretionary duties (2) in good faith, so long as (3) they are acting within the scope of their authority. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). While the test employed under Texas law is essentially the same as the § 1983 standard, it has no threshold requirement that a right be clearly established. Lancaster v. Chambers, 883 S.W.2d 650, 657 (Tex. 1994). Rather, official immunity hinges on whether the official's activities were undertaken in "good faith," that is, whether any reasonably prudent official could have believed that the conduct was consistent with the plaintiff's rights. Id. at 656-67; Cantu v. Rocha, 77 F.3d 795, 808-09 (5th Cir. 1996). Thus, "Texas' test focuses solely on the objective legal reasonableness of the officer's conduct." Cantu, 77 F.3d at 809. Treviño was performing a discretionary duty and acting within the scope of his authority at the traffic stop. See Texas Dep't of Pub. Safety v. Perez, 905 S.W.2d 695, 698-700 (Tex.App.-Houston [14th Dist.] 1995, writ denied). Tomblin has alleged that Treviño was acting pursuant to official City policy when he requested Tomblin's SSN; he has alleged no facts to show that a reasonably prudent officer under the same or similar circumstances could have believed that the disputed action should not have been taken. Chambers, 883 S.W.2d at 656-657. Treviño is entitled to official immunity.
The City moves to dismiss Tomblin's § 1983 cause of action on the ground that Tomblin has failed to state a claim as a matter of law. A claim for relief under 42 U.S.C. § 1983 must contain two elements: (1) that plaintiff has been deprived of a right secured by the Constitution or laws of the United States; and (2) that the defendant acted under color of state law. A governmental entity can be found liable under Section 1983 only if the entity itself causes the constitutional violation at issue. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978). Tomblin must establish that he sustained a deprivation of constitutional or other federally-protected rights as a result of some official policy, practice, or custom of the City of Seguin. Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397 (1997); Snyder v. Trepagnier, 142 F.3d 791, 795 (5th Cir. 1998). Put another way, municipal liability may be imposed when the enforcement of a municipal policy or custom was the moving force behind the violation of federally-protected rights. Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 216 (5th Cir. 1998).
Tomblin has alleged that the City violated his Fourth Amendment right to privacy by requiring him, as a matter of official policy, to disclose his SSN during a non-custodial traffic stop. Even though a constitutional privacy right in one's SSN is not clearly established, the Court cannot say at this stage of litigation that there is no constitutional right to privacy that will support his § 1983 claim. The constitutional right to privacy, while largely undefined, is generally recognized to encompass at least two interests: the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important personal decisions. Whalen v. Roe, 429 U.S. 589, 598-99 (1977); National Treasury Employees Union v. U.S. Dept. of Treasury, 25 F.3d 237, 242 (5th Cir. 1994). The first interest, also known as the right to confidentiality, is the one at issue in the present case. In assessing Tomblin's claim, the Court must determine whether, and to what extent, he has a reasonable expectation of privacy his SSN under the facts of the present case. See National Treasury Employees Union, 25 F.3d at 243. If he has no reasonable expectation of privacy, he has no standing to sue. Id. If there is a reasonable expectation of privacy in the information disclosed, the Court must then decide whether the intrusion on the right of privacy is justified, balancing the governmental interest in disclosure against the private interest in confidentiality. Id. at 242-43.
These issues are not yet ripe for resolution as they have not been properly briefed. The balancing test especially seems to be one that calls for the weighing of fact issues, a task inappropriate in a 12(b)(6) motion. Likewise, the more fundamental issue for the § 1983 cause of action — whether demanding SSNs at non-custodial traffic stops is official City policy — must await discovery. The issue presently before the Court is whether Tomblin's allegations, accepted as true, present a claim upon which relief legally can be obtained. At this point, it does not appear to a certainty that Tomblin cannot prove a violation of his constitutional right to privacy under the facts he has alleged. Therefore, he has pleaded a cause of action, and the City's motion to dismiss his § 1983 action must be denied.
The City next argues that plaintiff's claims based on the Texas Constitution must fail because Texas does not recognize a state constitutional tort. While it is true that Texas does not recognize a common law cause of action for damages to enforce constitutional rights, when a law conflicts with rights guaranteed by the Texas Bill of Rights, it may be declared void. City of Beaumont v. Bouillion, 896 S.W.2d 143, 148-49 (Tex. 1995). "Thus, suits for equitable remedies for violation of constitutional rights are not prohibited." Id. at 149. The Texas Supreme Court has held that "the Texas Constitution protects personal privacy from unreasonable intrusion. This right to privacy should yield only when the government can demonstrate that an intrusion is reasonably warranted for the achievement of a compelling governmental objective that can be achieved by no less intrusive, more reasonable means." Texas State Employees Union v. Texas Dept. of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987). The court went on to hold that factual determinations in applying the balancing test "are properly made by the trial court." Id. at 206. Thus, the City's contentions that disclosure of SSNs under threat of arrest is not mandated by the City, and that acquiring SSNs is an accepted law enforcement technique ( i.e., the intrusion is reasonably warranted to achieve a compelling governmental objective) are factual issues that cannot be resolved in a Rule 12(b)(6) motion.
Finally, the City argues without elaboration that Tomblin's allegations do not state a cause of action for tortious invasion of privacy as a matter of law. The City cites Hogan v. Hearst Corp., 945 S.W.2d 246 (Tex.App.-San Antonio 1997 no writ). The Hogan case is not helpful because it involved a suit against a newspaper for publishing information obtained from public arrest records. Texas law, however, recognizes three distinct instances that may constitute the tort of invasion of privacy. Cornhill Ins. PLC v. Valsamis, Inc., 106 F.3d 80, 85 (5th Cir. 1997). Only two are arguably relevant to the present cause of action: unreasonable intrusion upon the plaintiff's seclusion or solitude, and unreasonable public disclosure of embarrassing private facts about the plaintiff.
To prove a cause of action for unreasonable intrusion upon the plaintiff's seclusion or solitude, the plaintiff must prove: "(1) an intentional intrusion; (2) upon the seclusion, solitude, or private affairs of another; (3) which would be highly offensive to a reasonable person." Farrington v. Sysco Food Servs., Inc., 865 S.W.2d 247, 253 (Tex.App.-Houston (1st Dist.) 1993, writ denied) (citing Gill v. Snow, 644 S.W.2d 222, 223-24 (Tex.App.-Fort Worth 1982, no writ)). The intrusion must be unreasonable, unjustified, or unwarranted.Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973). Typically, an action for intrusion upon one's seclusion exists "only when there has been `a physical invasion of a person's property or . . . eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying.'" Ross v. Midwest Communications, Inc. 870 F.2d 271, 273 (5th Cir. 1989) (quoting Gill, 644 S.W.2d at 224). While the facts of the present case do not fit the circumstances of a physical invasion of property or eavesdropping, at least one court has found that a plaintiff had stated a cause of action for intrusion upon seclusion in a case where his former employers publically disclosed his SSN. St. Paul Guardian Ins. Co. v. Centrum G.S. Ltd., 2000 WL 1639345 at *8 (N.D. Tex. 2000),aff'd in part, rev'd in part on other grounds, 283 F.3d 709 (5th Cir. 2002).
To establish a cause of action for unreasonable public disclosure of embarrassing private facts, the plaintiff must show:
(1) that the publicized information "contains highly intimate or embarrassing facts about a person's private affairs, such that its publication would be highly objectionable to a person of ordinary sensibilities," (2) that such information was "communicated to the public at large," not simply to "a small group of persons," and (3) "that the information publicized not be of legitimate concern to the public."Johnson v. Sawyer, 47 F.3d 716, 731 (5th Cir. 1995) (quoting Industrial Found. of the South v. Texas Indus. Accident Bd., 540 S.W.2d 668, 683-85 (Tex. 1976) (citations omitted)). It could be argued that one's SSN is at least an intimate, although not an embarrassing, private fact. Further, if the City of Seguin makes the SSNs part of public reports of the traffic stops, these records are disclosed to the public at large. See Industrial Found., 540 F.2d at 684; Hogan, 945 S.W.2d at 250 (publication of public arrest records, which may include the arrestee's SSN, does not violate individual's right to privacy). Finally, it cannot be disputed that Tomblin's SSN is not a matter of legitimate concern to the public. Under a liberal reading of his complaint, the Court concludes that Tomblin has alleged facts sufficient to state a cause of action for invasion of privacy.
ORDERS
Defendants' motion to dismiss (docket no. 2) is granted in part and denied in part. Tomblin's causes of action against Treviño are DISMISSED on the grounds of qualified and official immunity. The defendants' motion to dismiss Tomblin's causes of action against the City are DENIED.
Because the city police department cannot be sued independently of the City, it is ORDERED that the Seguin Police Department is DISMISSED as a defendant in this case.
It is further ORDERED that the motion for protective order filed by Treviño and the police department (docket no. 7) is DENIED as moot.