Demar Nilson v. Layton City and Rex Brimhall

45 F.3d 369, 10 I.E.R. Cas. (BNA) 321, 23 Media L. Rep. (BNA) 1375, 1995 U.S. App. LEXIS 137, 1995 WL 3759
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 6, 1995
Docket94-4077
StatusPublished
Cited by66 cases

This text of 45 F.3d 369 (Demar Nilson v. Layton City and Rex Brimhall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Demar Nilson v. Layton City and Rex Brimhall, 45 F.3d 369, 10 I.E.R. Cas. (BNA) 321, 23 Media L. Rep. (BNA) 1375, 1995 U.S. App. LEXIS 137, 1995 WL 3759 (10th Cir. 1995).

Opinion

SEYMOUR, Chief Judge.

Demar Nilson brought this 42 U.S.C. § 1983 action alleging violations of his constitutional right to privacy because a Layton City official publicized an expunged portion of his criminal record. In a bench trial, the district court rejected Mr. Nilson’s claim, and he appeals. We affirm.

I.

In 1981, while a school teacher in the Davis County School District, Mr. Nilson pled no contest to forcible sexual abuse charges. Although charged in Davis County, Mr. Nilson was arrested and booked in Layton. The court sentenced him to one year of suspended jail time, indefinite probation, and a $1,000 fine. The Davis County School District terminated Mr. Nilson’s employment, and the state revoked his teaching certificate for approximately one year. In 1984, the Jordan School District in Salt Lake County hired Mr. Nilson. On motion of Mr. Nilson, a district judge in Davis County entered an Order of Expungement on July 23, 1990, pursuant to Utah Code Ann. § 77-18-2 (1990). 1 The court never filed the expungement order with Layton or any Layton official.

The Jordan School District began receiving information and complaints regarding Mr. Nilson’s prior criminal history in 1990. Soon thereafter, the Salt Lake County Sheriffs Office learned of Mr. Nilson’s past eon- *371 ■vietion and received new complaints of sexual abuse by Mr. Nilson. Salt Lake County began investigating these new sexual abuse allegations and charged Mr. Nilson in 1991 with forcible sexual abuse.

On October 23,1991, Sergeant Brimhall of the Layton Police Department discussed Mr. Nilson’s prior conviction with Steve Eager of KSL-TV. As a Layton police officer in 1981, Sergeant Brimhall had first-hand knowledge of Mr. Nilson’s arrest and conviction. However, because no one filed the expungement order with any Layton official or agency, the Layton records did not provide knowledge of the expungement, and it is unclear from the district court’s findings whether Sergeant Brimhall actually knew of the expungement. Following his discussion with Sergeant Brim-hall, Mr. Eager reported on the evening news that Layton had arrested and convicted Mr. Nilson for child abuse in 1981 and that some time thereafter his record was expunged. Also on the October 23 broadcast, two of Mr. Nilson’s former Davis County students anonymously claimed to be victims of his sexual abuse. The charges and the news broadcast received substantial publicity.

Although Mr. Nilson was not convicted of the 1991 charges, the Jordan School District terminated his employment in 1992. Mr. Nilson then filed this section 1983 action against Layton and Sergeant Brimhall, alleging that Sergeant Brimhall’s post-expungement interview with Mr. Eager and the ensuing media publicity violated his constitutional right to privacy. The district court concluded that neither Layton nor Sergeant Brim-hall had first-hand knowledge of the ex-pungement order and therefore did not violate Utah Stat.Ann. § 77-18-2(5)(a). Because defendants were not liable under section 77-18-2, the court further concluded, they could not be held liable under section 1983. 2

II.

On appeal, Mr. Nilson argues that the district court’s analysis was misguided. He contends that the constitutionally-rooted right to privacy is a question of federal law, and the relevant inquiry is whether he had a legitimate expectation of privacy in his expunged criminal records. Mr. Nilson further argues that the Utah expungement statute created a .legitimate expectation of privacy, and violations thereof implicated his constitutional right to privacy. We agree with Mr. Nilson’s assertion that the constitutional right of privacy is a question of federal law, but we disagree that he had a legitimate expectation of privacy in his expunged criminal records.

Whether Sergeant Brimhall’s postexpungement disclosure of Mr. Nilson’s criminal history violated Mr. Nilson’s right to privacy is a question of law which we review de novo. Estate of Holl v. Commissioner of Internal Revenue, 967 F.2d 1437, 1438 (10th Cir.1992). The Due Process Clause of the Fourteenth Amendment protects individuals from state intrusion on fundamental aspects of personal privacy. See Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). The Supreme Court has held that the right to privacy safeguards individuals from government disclosure of personal information. See Nixon v. Administrator of Gen’l Serv., 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977); Whalen v. Roe, 429 U.S. 589, 599 & n. 24, 97 S.Ct. 869, 876 & n. 24, 51 L.Ed.2d 64 (1977). In determining whether information is of such a personal nature that it demands constitutional protection, we must consider “(1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner.” Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir.1981). Because the alleged unconstitutional conduct in this case fails to meet the first prong of this test, we hold that Mr. Nilson has no constitutional right to privacy in his expunged criminal record.

*372 Expectations of privacy are legitimate if the information which the state possesses is highly personal or intimate. Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986). Information readily available to the public is not protected by the constitutional right to privacy. Consequently, government disclosures of arrest records, see Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), judicial proceedings, see Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328 (1975), and information contained in police reports, see Scheetz v. The Morning Call, Inc., 946 F.2d 202, 207 (3d Cir.1991), cert. denied — U.S. -, 112 S.Ct. 1171, 117 L.Ed.2d 417 (1992), do not implicate the right to privacy.

Furthermore, a validly enacted law places citizens on notice that violations thereof do not fall within the realm of privacy. Mangels, 789 F.2d at 839. Criminal activity is thus not protected by the right to privacy.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Griffin v. City of Artesia
D. New Mexico, 2025
Ferrari v. Francis
N.D. Texas, 2023
Morant v. New Haven
D. Connecticut, 2023
John Doe v. Merrick Garland
17 F.4th 941 (Ninth Circuit, 2021)
Melnick v. Camper
D. Colorado, 2020
Mitchell v. City of Bartow
M.D. Florida, 2019
TRAMAGLINI v. MARTIN
D. New Jersey, 2019
Dillard v. City of Springdale, Arkansas
930 F.3d 935 (Eighth Circuit, 2019)
Stamm v. Cnty. of Cheyenne
326 F. Supp. 3d 832 (D. Nebraska, 2018)
Shaw v. Kaemingk
D. South Dakota, 2017
Yusef Steele v. Warden Cicchi
855 F.3d 494 (Third Circuit, 2017)
United States v. Willis
826 F.3d 1265 (Tenth Circuit, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
45 F.3d 369, 10 I.E.R. Cas. (BNA) 321, 23 Media L. Rep. (BNA) 1375, 1995 U.S. App. LEXIS 137, 1995 WL 3759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demar-nilson-v-layton-city-and-rex-brimhall-ca10-1995.