Willan, Thomas v. Columbia County ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2971
Thomas Willan,
Plaintiff-Appellant,
v.
Columbia County, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01-C-075-S--John C. Shabaz, Judge.
Submitted December 18, 2001--Decided February 19, 2002
Before Posner, Manion, and Rovner, Circuit
Judges.
Posner, Circuit Judge. Willan sued
county law-enforcement officers and
authorities under 42 U.S.C. sec.
1983,claiming that they had violated his
constitutional rights by obtaining and
disseminating information about his
criminal history. He appeals from the
grant of summary judgment to the
defendants.
Willan was locked in a bitter campaign
in 1999 for the mayoralty of the town of
Lodi, Wisconsin. His opponent, the
incumbent, complained to the police that
Willan was harassing her. (The record
does not reveal the nature of the alleged
harassment.) The police queried the
computerized database maintained by the
FBI’s National Crime Information Center
and discovered that Willan had been
convicted of the felony of burglary in
Georgia in 1981. After losing the
election, Willan sued the mayor for
fraud. The suit was dismissed because, as
the mayor reminded the court, an
unpardoned felon is ineligible to run for
public office in Wisconsin. Although
Willan had been convicted under Georgia’s
Youthful Offender Act, with the result
that his civil rights (except the right
to own a gun) had been restored upon
completion of his sentence, the Wisconsin
appellate court concluded that this was
not the same as a pardon. Willan v.
Brereton, No. 99-1816, 2000 WL 992250, at
*4 (Wis. App. July 20, 2000); see State
v. Village of Lyndon Station, 295 N.W.2d
818 (Wis. App. 1980), aff’d, 305 N.W.2d
89 (Wis. 1981). Willan had sworn under
oath, in his declaration of candidacy,
that he had never been convicted of an
unpardoned felony. When it was discovered
that he had sworn falsely, he was
arrested and charged with a false-
swearing felony, though the charge was
later dropped.
He argues that the querying of the FBI
database was a search within the meaning
of the Fourth Amendment that not being
supported by probable cause was
unreasonable. Records of conviction are
public rather than private documents,
however; the information in them is not
the property of the convicted persons,
and therefore the National Crime
Information Center had every right, at
least so far as the Constitution is
concerned, to record and disseminate
Willan’s conviction. The Fourth Amendment
does not entitle a person to conceal the
fact that he has been convicted of a
crime. Eagle v. Morgan, 88 F.3d 620, 627-
28 (8th Cir. 1996); Cline v. Rogers, 87
F.3d 176, 179 (6th Cir. 1996); Nilson v.
Layton City, 45 F.3d 369, 372 (10th Cir.
1995).
Willan also argues that the disclosure
of his felony conviction violated his
right of privacy. In the famous case of
Melvin v. Reid, 297 Pac. 91 (Cal. App.
1931), now rather long in the tooth
however, a limited right to prevent the
publicizing of one’s criminal history was
recognized in the name of the tort right
of privacy. See also Briscoe v. Reader’s
Digest Ass’n, 483 P.2d 34, 43 (Cal.
1971). Mrs. Melvin was a former
prostitute who had been prosecuted for
murder but acquitted. According to the
uncontradicted allegations of her
complaint, after her acquittal she had
married, changed her name, and lived a
blameless life in a community in which
her past was unknown, until the defendant
made a movie about her murder case, using
her maiden name. The case is
distinguishable. Mrs. Melvin had at least
been acquitted; Willan had been
convicted. And Willan, unlike
Melvin,voluntarily attracted public
attention to his past behavior by running
for public office. "Political candidates
in today’s society, for good or for ill,
should expect information about their
past behavior to come to light, and [the
plaintiff] had to recognize the
possibility that his status as a ex-felon
would become a campaign issue." Medina v.
City of Osawatomie, 992 F. Supp. 1269,
1277 (D. Kan. 1998); see also Kapellas v.
Kofman, 459 P.2d 912, 923 (Cal. 1969).
Serious constitutional issues, akin to
those raised by defamation suits by
public officials, see, e.g., New York
Times Co. v. Sullivan, 376 U.S. 254(1964), would arise if candidates for
office could use the concept of privacy
to conceal their criminal records from
the electorate. The defendants in our
case, moreover, had not publicized
Willan’s criminal record, that is,
disseminated it widely, as the privacy
tort requires, Restatement (Second) of
Torts sec. 652D, comment a (1977), though
they had used it to defend against
Willan’s suit, which is what made it
public. All else aside, that was a
privileged use.
Anyway the Melvin case, paternalistic in
doubting the ability of people to give
proper rather than excessive weight to a
person’s criminal history, is dead, see,
e.g., Rawlins v. Hutchinson Publishing
Co., 543 P.2d 988, 993-96 (Kan. 1975);
Barbieri v. News-Journal Co., 189 A.2d
773, 776-77 (Del. 1963); Jones v. New
Haven Register, Inc., 763 A.2d 1097,
1100-03 (Conn. Super. 2000), killed by
Cox Broadcasting Corp. v. Cohn, 420 U.S.
469, 494-96 (1975); see Haynes v. Alfred
A. Knopf, Inc., 8 F.3d 1222, 1230-32 (7th
Cir. 1993); Romaine v. Kallinger, 537
A.2d 284, 292-95 (N.J. 1988); Montesano
v. Donrey Media Group, 668 P.2d 1081,
1086-88 (Nev. 1983); McCormack v.
Oklahoma Publishing Co., 613 P.2d 737,
741-42 (Okla. 1980); Rawlins v.
Hutchinson Publishing Co., supra, 543
P.2d at 995-96; Pemberton v. Bethlehem
Steel Corp., 502 A.2d 1101, 1118-19 (Md.
Spec. App. 1986); Shulman v. Group W.
Productions, Inc., 955 P.2d 469, 500-01
(Cal. 1998) (concurring opinion). The
Supreme Court held in Cox that the First
Amendment creates a privilege to publish
matters contained in public records even
if publication would offend the
sensibilities of a reasonable person.
(The matter in question was the identity
of a woman who had been raped and
murdered.) See also Florida Star v.
B.J.F., 491 U.S. 524, 537-38 (1989).
There is an even deeper objection to
Willan’s privacy claim. The tort law of
privacy, the law on which the plaintiff
in Melvin v. Reid relied, is a body of
state law, and Willan is claiming a
violation of his federal constitutional
rights. Although several provisions of
the Constitution protect privacy in the
sense of confidentiality, including the
Fourth Amendment and the self-
incrimination clause of the Fifth
Amendment, the only place to look for a
general right of informational privacy
would be the due process clause of the
Fifth Amendment or (in this case, in
which the defendants were acting under
color of state rather than federal law)
of the Fourteenth Amendment. Information
about oneself, such as one’s criminal
history, would have to be deemed a form
of liberty or property, and the
unjustified disclosure of such
information a violation of (substantive)
due process. Paul v. Davis, 424 U.S. 693,
711-13 (1976), holds that the interest in
reputation is not a form of liberty or
property within the meaning of the due
process clauses and therefore is not
protected by those clauses, and it is
reputation that Willan seeks to protect
by concealment of his criminal record.
Even if reputation were a form of
constitutional property, it would not be
infringed in any invidious sense by the
disclosure of legitimately discreditable
information about a person, such as his
criminal record. No one should have a
right to induce other people to deal with
him on the basis of false pretenses, a
contrived and misleading reputation. It
would be a considerable paradox, quite
apart from the First Amendment, to allow
a person to obtain damages for the
disclosure of his criminal record when if
he had sued for defamation his suit would
be barred by the defense of truth.
There is some case authority, though its
supposed roots in Whalen v. Roe, 429 U.S.
589, 599-600 (1977), and Nixon v.
Administrator of General Services, 433
U.S. 425, 457-65 (1977), are tenuous and
it is in tension with Fisher v. United
States, 425 U.S. 391 (1976), that if
Willan were complaining not about an
impairment of his reputation but about
the revelation of intensely private
financial or medical information that was
not a matter of public record or germane
to his candidacy, he might be able to
appeal to a concept of "privacy" that is
a form of property or liberty within the
meaning of the due process clauses. See,
e.g., Denius v. Dunlap, 209 F.3d 944,
955-58 (7th Cir. 2000); cf. Paul P. v.
Verniero, 170 F.3d 396, 403-04 (3d Cir.
1999); Russell v. Gregoire, 124 F.3d
1079, 1093-94 (9th Cir. 1997); Eagle v.
Morgan, supra, 88 F.3d at 625-27; Nilson
v. Layton City, supra, 45 F.3d at 371-72.
That is not the nature of his claim,
however, and so we need not decide how
well it might fare.
Affirmed.