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18 Finally, no cases were located for this digest holding that a transit agencyâs deployment of a public video surveillance system violates the Constitution. V. THE RIGHT TO PRIVACY UNDER STATE CONSTITUTIONS A. State Constitutions Recognizing a Right to Privacy At least ten state constitutions include a provi- sion for the protection of an individualâs right to privacy,230 such as the constitutions of Alaska,231 Arizona,232 Florida,233 Montana,234 and Washington.235 However, it does not appear that the state constitu- tional provisions would apply necessarily to the use of video surveillance in public places. Alaskaâs constitution states that â[t]he right of the people to privacy is recognized and shall not be infringed.â236 In Arizona, â[n]o person shall be disturbed in his private affairsâ¦without authority of law.â237 In California, individualsâ âinalienable rightsâ238 are secured, including their pursuit of âsafety, happiness, and privacy.â239 Floridaâs constitu- tion states, âThe right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communica- tions by any means, shall not be violated.â240 In Iowa, âAll men and women are, by nature, free and equal, and have certain inalienable rightsâamong which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.â241 Other state constitutional provisions mirror the United States Constitutionâs Fourth Amend- mentâs protection against unreasonable searches and seizures.242 Additionally, in some states the courts have recog- nized a constitutional right to privacy. In 2002, the Supreme Court of Arkansas held that âArkansas has a rich and compelling tradition of protecting indi- vidual privacyâ and that a âfundamental right to privacy [is] guaranteed to the citizens of Arkan- sas.â243 Georgiaâs Supreme Court has held that there is an implicit right to privacy in Georgiaâs constitu- tion, stating âthat Georgia citizens have a liberty of privacy guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law.â244 The Kentucky Supreme Court likewise has stated that â[t]he right of privacy has been recognized as an integral part of the guarantee of liberty in our 1891 Kentucky Constitution since its inception.â245 Some state constitutions provide, or some courts have held, that an individualâs right to privacy must be balanced against a compelling state interest in disclosure. A California appellate court has held that, even though a patient has a constitutionally protected interest in his or her medical file, a âdisclosure may be appropriate in narrowly limited circumstances to serve a compelling interest.â246 Hawaiiâs constitution provides that â[t]he right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest.â247 Montanaâs constitution similarly provides that â[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.â248 230 Douma & Deckenbach, supra note 122, at 307. See also, National Conference of State Legislatures, Privacy Protections in State Constitutions (citing alaSka conSt. art. I, Â§ 22; ariz. conSt. art. II, Â§ 8; cal. conSt. art. I, Â§ 1; fla. conSt. art. I, Â§ 12; haW. conSt. art. I, Â§ 6; ill. conSt. art. I, Â§ 6; la. conSt. art. I, Â§ 5; Mont. conSt. art. II, Â§ 10; S.C. conSt. art. I, Â§ 10; and WaSh. conSt. art. I, Â§ 7), http://www.ncsl.org/research/telecommunications-and- information-technology/privacy-protections-in-state- constitutions.aspx (last accessed Aug. 22, 2017). 231 alaSka conSt. art. I, Â§ 22 (2017). 232 ariz. conSt. art. II, Â§ 8 (2017) (âNo person shall be disturbed in his private affairs, or his home invaded, without authority of law.â). 233 fla. conSt. art. I, Â§ 23 (2017) (âEvery natural person has the right to be let alone and free from governmental intrusion into the personâs private life....â). 234 Mont. conSt. art. II, Â§ 10 (2017) (âThe right of indi- vidual privacy is essential to the well-being of a free soci- ety and shall not be infringed without the showing of a compelling state interest.â). 235 WaSh. conSt. art. I, Â§ 7 (2017) (âNo person shall be disturbed in his private affairs, or his home invaded, with- out authority of law.â). 236 alaSka conSt. art. I, Â§ 22 (2017). 237 ariz. conSt. art. II, Â§ 8 (2017). 238 cal. conSt. art. I, Â§ 1 (2017). 239 Id. 240 fla. conSt. art. I, Â§ 12 (2017). 241 ioWa conSt. art. I, Â§ 1 (2017). 242 See haW. conSt. art. I, Â§ 7 (2017); ill. conSt. art. I, Â§ 6 (2017); la. conSt. art. I, Â§ 5 (2017); and S.C. conSt. art. I, Â§ 10 (2017). 243 Jegley v. Picado, 349 Ark. 600, 632, 80 S.W.3d 332, 350 (2002). 244 Powell v. State, 270 Ga. 327, 329, 510 S.E.2d 18, 21 (1998) (citing Pavesich v. New England Life Ins. Co., 122 Ga. 190, 197, 50 S.E. 68, 71 (1905) (internal citation omitted)). 245 Commonwealth v. Wasson, 842 S.W.2d 487, 495 (Ky. 1993). 246 Cutter v. Brownbridge, 183 Cal. App. 3d 836, 842, 228 Cal. Rptr. 545, 549â50 (1986). However, when there has been a deliberate disclosure of oneâs personal information, the disclosure âleaves no room for the careful balancing that must take place prior to possible infringement of a con- stitutional right.â Id., 183 Cal. App. 3d at 847, 228 Cal. Rptr. at 553 (citations omitted). 247 haW. conSt. art. I, Â§ 6 (2017). 248 Mont. conSt. art. II, Â§ 10 (2017).
19 B. States Recognizing an Implied Cause of Action for a Violation of a State Constitutional Provision In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,249 the United States Supreme Court held that there is an implied right of action for a violation of the United States Constitu- tionâs prohibition on unreasonable searches and seizures. Some state courts have held that an âan individual may bring a cause of action for monetary damages for violations of state constitutional provi- sions,â250 whereas other statesâ high courts have not done so.251 Some state courts that have recognized an implied cause of action under their state constitution did not rely solely on the Supreme Courtâs reasoning in Bivens252 but relied also on the common law253 or Â§ 874A of the Restatement (Second) of Torts:254 When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it deter- mines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effective- ness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.255 In Cutter v. Brownbridge,256 a psychotherapist revealed information about his patient to the patientâs wife while they were in the midst of a divorce that resulted in the plaintiff âs loss of his visi- tation rights. A California appellate court held that the privacy provision in the California Constitution âis self-executing and needs no legislation to create âa legal and enforceable right of privacy for every Californian.ââ257 Violation of a privacy right is permissible only âwhen the need for disclosure outweighs [the plaintiff âs] interest in privacy.â258 Because the plaintiff âs privacy interests outweighed the need for disclosure,259 the court reversed the lower courtâs dismissal of the plaintiff âs complaint.260 In Moresi v. State,261 the Louisiana Supreme Court recognized an implied right of action for a violation of Article I, Â§ 5 of the 1974 Louisiana Constitution.262 Article I, Â§ 5 states, âEvery person shall be secure in his person, property, communica- tions, houses, papers, and effects against unreason- able searches, seizures, or invasions of privacyâ and âAny person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.â263 However, as had the Supreme Court in Bivens, and later the New York Court of Appeals in Brown, discussed below, the Louisiana Supreme Court recognized a qualified immunity defense for acting in good faith.264 The police officers were acting in good faith because their âinvestigatory stops [were] based on reasonable, articulable suspicion [that] do not violate state constitutional law 249 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (holding that the plaintiff was entitled to redress for his injuries caused by federal agentsâ violation of his Fourth Amendment rights), on remand, 456 F.2d 1339 (2d Cir. N.Y. 1972) (holding that federal agents were not immune from actions for damages based on allegations of constitu- tional violations but that defenses of good faith and rea- sonable belief were available). 250 Sharon N. Humble, Annotation, Implied cause of action for damages for violation of provisions of state constitutions, 75 A.L.R. 5th 619, 633 (2000), (citing Porten v. University of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976) (recognizing an implied cause of action for violations of the right to privacy) and Fenton v. Groveland Community Ser- vices Dist., 135 Cal. App. 3d 797, 185 Cal. Rptr. 758 (1982) (recognizing an implied cause of action for a violation of the right to vote); Phillips v. Youth Development Program, Inc., 390 Mass. 652, 459 N.E.2d 452 (1983) (recognizing an implied cause of action for violation of the right to due process), id. at 635; Johnson v. Wayne Co., 213 Mich. App. 143, 540 N.W.2d 66 (1995) (recognizing an implied cause of action for viola- tions of the rights of equal protection and due process and right to be free from cruel and unusual punishment) and Woodruff v. Board of Trustees of Cabell Huntington Hosp., 173 W. Va. 604, 319 S.E.2d 372 (1984) (recognizing an implied right of action for an alleged violation of the right to free speech)), id. at 634, hereinafter referred to as âHumble.â 251 Wooley v. Madison County, Tennessee, 209 F. Supp. 2d 836 (W.D. Tenn. 2002). See Humble, supra note 250. 252 Humble, supra note 250, at 632 (citing Porten v. Uni- versity of San Francisco, 64 Cal. App. 3d 825, 134 Cal. Rptr. 839 (1976); Lamartiniere v. Allstate Ins. Co., 597 So.2d 1158 (La. App. 1992); and Bott v. DeLand, 922 P.2d 732 (Utah 1996), id. at 634). 253 Id. at 335â36 (citing Moody v. Hicks, 956 S.W.2d 398 (Mo. Ct. App. E. D. 1997); DiPino v. Davis, 354 Md. 18, 720 A.2d 354 (1999); and Brown v. Consolidated Rail Corp., 223 N.J. Super. 467, 538 A.2d 1310 (N.J. App. 1988)). 254 Id. at 632 (citing Brown v. State, 89 N.Y.2d 172, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (N.Y. 1996) and Dorwart v. Caraway, 2002 MT 240, 312 Mont. 1, 58 P.3d 128 (Mont. 2002)). 255 Restatement (Second) of Torts, Â§ 874A (Am. Law Inst. 1965). 256 183 Cal. App. 3d 836, 228 Cal. Rptr. 545 (Cal. App. 1986), overruled in part, Jacob B. v. County of Shasta, 40 Cal. 4th 948, 56 Cal. Rptr. 3d 477, 154 P.3d 1003 (2007) (holding that the litigation privilege applies even to a constitutionally-based privacy cause of action). 257 Id. at 842, 228 Cal. Rptr. at 549 (citation omitted). 258 Id. at 843, 228 Cal. Rptr. at 552. 259 Id. at 848, 228 Cal. Rptr. at 553. 260 Id. at 844, 228 Cal. Rptr. at 553. 261 567 So.2d 1081 (La. 1990). 262 Id. at 1093. 263 Id. at 1091â92 (quoting la. conSt. art. I, Â§ 5 (1974)). 264 Id. at 1094 (citing Butz v. Economou, 438 U.S. 478, 506â07, 98 S. Ct. 2894, 2911, 57 L. Ed. 2d 895, 916 (1977)).