Doe v. Borough of Barrington

Presently before the court is the motion of plaintiffs Jane Doe and her children 1 for partial summary judgment against defendants Borough of Runnemede (“Runnemede”) and Officer Smith. These defendants have cross-moved for summary judgment. This case presents novel issues concerning the privacy rights of individuals who have contracted Acquired Immune Deficiency Syndrome (“AIDS”) and the privacy rights of their family members. For the reasons stated in this opinion, plaintiffs’ motion for summary judgment against defendants Runnemede and Smith will be granted. Accordingly, the motion of defendants Runnemede and Smith for summary judgment will be denied.

I. FACTS AND PROCEDURE

The facts are largely undisputed. On March 25, 1987, Jane Doe, her husband, and their friend James Tarvis were traveling in the Doe’s pickup truck through the Borough of Barrington (“Barrington”). At approximately 9:00 a.m., a Barrington police officer stopped the truck and questioned the occupants. As a result of the vehicle stop, Barrington officers arrested Jane Doe’s husband and impounded the pickup truck. Barrington officers escorted Jane Doe, her husband, and James Tarvis to the Barrington Police Station.

When he was initially arrested, Jane Doe’s husband told the police officers that he had tested HIV positive and that the officers should be careful in searching him because he had “weeping lesions.” There is some dispute over the exact words used by Jane Doe’s husband and about the number of persons present when Jane Doe’s husband revealed the information. These disputed facts do not change the outcome here. Barrington police released Jane Doe and James Tarvis from custody, but detained Jane Doe’s husband on charges of unlawful possession of a hypodermic needle and a burglary detainer entered by Essex County.

Sometime in the late afternoon of the same day, Jane Doe and James Tarvis drove Tarvis’s car to the Doe residence in the Borough of Runnemede (“Runnemede”). The car engine was left running, and the car apparently slipped into gear, rolling down the driveway into a neighbor’s fence. The neighbors owning the fence are Michael DiAngelo and defendant Rita DiAngelo. Rita DiAngelo is an employee in the school district in Runnemede.

Two Runnemede police officers, Steven Van Camp and defendant Russell Smith, responded to the radio call about the incident. While they were at the scene, Detective Preen of the Barrington police arrived and, in a private conversation with Van Camp, revealed that Jane Doe’s husband had been arrested earlier in the day and had told Barrington police officers that he had AIDS. Van Camp then told defendant Smith.

After Jane Doe and Tarvis left the immediate vicinity, defendant Smith told the DiAngelos that Jane Doe’s husband had AIDS and that, to protect herself, Rita DiAngelo should wash with disinfectant. There is some dispute about Smith’s exact words to the DiAngelos, 2 however this dis *379 pute does not change the outcome here. Defendant Rita DiAngelo became upset upon hearing this information. Knowing that the four Doe children attended the Downing School in Runnemede, the school that her own daughter attended, DiAngelo contacted other parents with children in the school. She also contacted the media. The next day, eleven parents removed nineteen children from the Downing School due to a panic over the Doe children’s attending the school. The media was present, and the story was covered in the local newspapers and on television. At least one of the reports mentioned the name of the Doe family. Plaintiffs allege that as a result of the disclosure, they have suffered harassment, discrimination, and humiliation. They allege they have been shunned by the community.

Plaintiffs brought this civil rights action against the police officer Smith and the municipalities of Barrington and Runnemede for violations of their federal constitutional rights pursuant to 42 U.S.C. § 1983 (1982). The federal constitutional right is their right to privacy under the fourteenth amendment. The suit contains pendent state claims against defendant DiAngelo for invasion of privacy and intentional infliction of emotional distress. The plaintiffs’ motion for summary judgment seeks judgment against only defendants Runnemede and Smith; these defendants filed a cross-motion for summary judgment with their response to plaintiffs’ motion.

Plaintiffs maintain that the fourteenth amendment protects them from the government’s disclosure of plaintiff Jane Doe’s husband’s infection with the AIDS virus. Plaintiffs assert that Officer Smith and the Borough of Runnemede are liable under 42 U.S.C. § 1983 (1982) for this violation of their constitutional rights.

Defendants Runnemede and Smith respond by stating:

1. plaintiffs have no standing because only Jane Doe’s husband’s privacy was invaded, and he is not party to this suit; 3

2. Smith’s action was not misconduct, and thus no action can be maintained under section 1983;

3. Jane Doe’s husband “published” the information and, therefore, gave up any right to privacy in this information;

4. cases cited by plaintiff are all distinguishable on their facts;

5. there are no conclusive facts about AIDS, thus Smith’s warning that DiAngelo might have been exposed through casual contact with Jane Doe was justified; and

6. Runnemede’s failure to have an nondisclosure policy for arrestees is not actionable because no other municipality or state agency has a policy in place.

II. DISCUSSION

A. The Summary Judgment Standard.

The standard for granting summary judgment is a stringent one, but it is not insurmountable. A court may grant summary judgment only when the materials of record “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983), cert. denied, 465 U.S. 1091, 104 S.Ct. 2144, 79 L.Ed.2d 910 (1984); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The *380 threshold inquiry is whether there are “any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Recent Supreme Court decisions mandate that “a. motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party’s burden of proof at trial, could be the basis for a jury finding in that party’s favor.” J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202, and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, “its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, even if the movant’s evidence is merely “colorable” or is “not significantly probative,” the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511.

B. Facts about AIDS.

AIDS is a viral disease that weakens or destroys the body’s immune system. The disease is caused by the presence of the Human Immunodeficiency Virus (“HIV”), which attacks the body’s T-lymphocyte cells that are a critical part of the body’s immune system. As a result, the body is unable to withstand infections it would normally suppress. These resulting infections, known as “opportunistic diseases,” eventually cause permanent disability and death. AIDS is defined by New Jersey health regulations as the presence of both the HIV virus and one or more opportunistic diseases. 4 Thus, a person may test positive for the HIV virus 5 and yet not exhibit any signs of illness; that person is asymptomatic. Persons who exhibit effects of immunodeficiency, such as fever, weight loss, night sweats, or diarrhea, but do not have any opportunistic diseases are described as having AIDS-related Complex (“ARC”). See N.J.A.C. 8:57-1.14(b). AIDS has no known cure.

HIV is transmitted through contact with contaminated blood, semen, or vaginal fluids. The virus is transmitted through activities such as sexual intercourse, anal sex, use of nonsterile hypodermic needles, and transfusions of contaminated blood or blood products. Additionally, women infected with HIV can transmit the virus to their children before or during birth. Although HIV has been detected in other bodily fluids such as saliva and urine, the virus is much less concentrated, and there are no known cases of transmission of the virus by such means. The Centers for Disease Control (“CDC”) terms the risk of infection from such fluids as “extremely low or nonexistent.” CDC, Update: Universal Precautions for Prevention of Transmission of Human Immunodeficiency Virus, Hepatitis B Virus, and Other Bloodborne Pathogens in Health-Care Settings, 37 MMWR 377, 378 (June 24, *381 1988); CDC, Summary: Recommendations for Preventing Transmissions of Infection with Human T-Lympho tropic Virus Type III/Lymphadenopathy-Associated Virus in the Workplace, 34 MMWR 681 (1985) (hereinafter “CDC Summary”).

In 1986, the Surgeon General announced that HIV is not transmitted through casual contact with an infected person, such as shaking hands, kissing, or contacting an object used by an infected person. United States Public Health Service, Surgeon General’s Report on Acquired Immune Deficiency Syndrome 13-14 (1986). See also CDC Summary, at 681; Friedland, Saltzman, & Rogers, Lack of Transmission of HTLV-III/LAV Infection to Household Contacts of Patients with AIDS or AIDS-Related Complex with Oral Candidiasis, 314 New England J.Med. 344 (Feb. 6, 1986); T. Hammett, AIDS in Correctional Facilities: Issues and Options 7 (1986); Curran, Morgan, Hardy, Jaffe, Darrow & Dowdle, The Epidemiology of AIDS: Current Status and Future Prospects, 229 Science 1352, 1356 (1985).

Later reports confirm this fact. Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic 119 (June 24, 1988); T. Hammett, AIDS and the Law Enforcement Officer: Concerns and Policy Responses 4-5, 17 (1987); M. Rogers, Transmission of Human Immunodeficiency Virus Infection in the United States, Report of the Surgeon General’s Workshop on Children with HIV infection and Their Families 17 (1987); Friedland & Klein, Transmission of the Human Immunodeficiency Virus, 317 New England J.Med. 1124 (Oct. 29, 1987).

Defendants assert that there are no conclusive facts about AIDS, therefore, a material issue of fact exists whether warning the DiAngelos was justified. Defendants cite one article to demonstrate that, although no case of AIDS has yet been attributed to casual contact with an infected person, so much is unknown about the disease that infection through casual contact cannot be ruled out. See Heyward & Curran, The Epidemiology of AIDS in the U.S., Scientific American 72, 80 (Oct. 1988). 6 The Surgeon General of the United States, however, has maintained since 1986 that “AIDS is not spread by common everyday contact but by sexual contact....” United States Department of Health and Human Services, Surgeon General’s Report on Acquired Immune Deficiency Syndrome 5 (1986) (emphasis in original). Defendants ignore the multitude of information, available in 1987, that flatly rejects their argument that AIDS may be spread through casual contact.

This court must take medical science as it finds it; its decision may not be based on speculation of what the state of medical science may be in the future. Ray v. School District of DeSoto County, 666 F.Supp. 1524, 1529 (M.D.Fla.1987). This court finds that the defendants’ argument that the AIDS virus is transmitted by casual contact does not raise an issue of material fact that could “reasonably be resolved in favor of either party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). AIDS is not spread by casual contact and this fact was established before March 25, 1987. Other courts considering the question at the time agree. See Thomas v. Atascadero Unified School District, 662 F.Supp. 376, 380 (C.D.Cal.1987) (decided February 20, 1987); District 27 Community School Board v. Board of Education, 130 Misc.2d 398, 502 N.Y.S.2d 325 (Sup.Ct.1986) (decided February 11, 1986).

The opponent to a motion for summary judgment “must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, *382 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Defendants’ argument that AIDS may be spread by casual contact does not meet this burden, thus, it does not bar summary judgment here.

C. Plaintiffs’ Right to Privacy.

The linchpin here is whether the Constitution protects plaintiffs’ confidentiality with respect to Jane Doe’s husband’s AIDS. If the Constitution does not protect the Does from disclosure of Jane Doe’s husband’s condition, there is no constitutional violation to support a section 1983 claim against the officer or the municipality. There is no case directly on point. Plaintiffs assert that this privacy right was recognized in Roe v. Wade, 410 U.S. 113, 153, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973) (Constitution protects woman’s decision whether or not to terminate pregnancy); Griswold v. Connecticut, 381 U.S. 479, 483, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965) (law prohibiting use of contraceptives violates zone of privacy created by several fundamental constitutional guarantees); Gillard v. Schmidt, 579 F.2d 825, 829 (3d Cir.1978) (nonconsensual search of teacher’s desk by school board member is violation of constitutional rights that states cause of action under section 1983).

This court finds that the Constitution protects plaintiffs from governmental disclosure of their husband’s and father’s infection with the AIDS virus. The United States Supreme Court has recognized that the fourteenth amendment protects two types of privacy interests. “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.” Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977) (footnotes omitted). Disclosure of a family member’s medical condition, especially exposure to or infection with the AIDS virus, is a disclosure of a “personal matter.”

The Third Circuit recognizes a privacy right in medical records and medical information. United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980) (employee medical records clearly within zone of privacy protection). See also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3233, 97 L.Ed.2d 739 (1987) (medical records clearly within constitutional sphere of right of privacy); Trade Waste Management Ass’n, Inc. v. Hughey, 780 F.2d 221, 234 (3d Cir.1985) (personal medical history protected from random governmental intrusion).

In United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980), the Third Circuit held that the National Institute for Occupational Safety and Health (“NIOSH”) could compel the production of employee medical records from a private corporation. The court noted that governmental intrusion into medical records is permitted only after a finding that the societal interest in disclosure outweighs the individual's privacy interest on the specific facts of the case. Id. at 578. The court stated that the factors to be considered include (1) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosures; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognizable public interest militating toward access. Id. In finding that NIOSH could compel production of the documents, the Third Circuit affirmed the trial court’s finding that NIOSH’s security precautions sufficiently assured nondisclosure by the agency. Id. at 580.

Westinghouse, however, addresses compelled disclosure of medical records to the government. This case is somewhat different than Westinghouse and its progeny because Jane Doe’s husband voluntarily gave the information to the police. See United States v. Westinghouse, 638 F.2d 570, 577 (3d Cir.1980). See also In re Search Warrant (Sealed), 810 F.2d 67, 71 (3d Cir.), cert. denied, 483 U.S. 1007, 107 S.Ct. 3233, 97 L.Ed.2d 739 (1987); Trade Waste Management Ass’n, Inc. v. Hughey, *383 780 F.2d 221, 234 (3d Cir.1985). Third Circuit precedents are silent on the duty of the government to protect medical information once such confidential information is disclosed to the government.

The United States Supreme Court has indicated that the government’s duty to avoid unwarranted disclosures arguably has its roots in the federal Constitution. In Whalen v. Roe, 429 U.S. 589, 606, 97 S.Ct. 869, 879, 51 L.Ed.2d 64 (1977), the United States Supreme Court held that a New York state statute that required the recording, in a centralized computer, of the names of persons receiving prescriptions for drugs that had a lawful and unlawful market did not contravene the requirements of the fourteenth amendment. The statute expressly prohibited public disclosure of the identity of patients. Id. at 594, 97 S.Ct. at 873. Additionally, the state Department of Health took security measures to prevent unwarranted disclosure of patient information. Id. at 593-95, 97 S.Ct. at 873-74.

The Court noted that it was not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal information. Moreover, the Court stated that the right to collect and to use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosure. Id. at 605, 97 S.Ct. at 879. The Court stated that Whalen v. Roe did not decide whether unwarranted disclosure from a government system without comparable security provisions, made intentionally or unintentionally, would violate the fourteenth amendment. Id. at 605-06, 97 S.Ct. at 879. The Court specifically found that the New York statute evidenced a proper concern with protection of the individual’s privacy interest. Id. at 605, 97 S.Ct. at 879. The case suggests that, absent the nondisclosure provisions, the statute might violate the fourteenth amendment.

Lower courts have held that, once the government has confidential information, it has the obligation to avoid disclosure of the information. In Carter v. Broadlawns Medical Center, 667 F.Supp. 1269, 1282 (S.D.Iowa 1987), cert. denied, — U.S. -, 109 S.Ct. 1569, 103 L.Ed.2d 935 (1989), the court held that a public hospital had violated plaintiffs’ constitutional rights by giving chaplains open access to patient medical records without patient authorization. The court noted that, in permitting free access to medical records, the hospital did not properly respect a patient’s confidentiality and privacy as recognized in Whalen v. Roe, 429 U.S. 589, 599 n. 23, 97 S.Ct. 869, 876 n. 23, 51 L.Ed.2d 64 (1977). The court concluded that a chaplain could review patient medical records only upon prior express approval of the individual patient or his or her guardian. The court noted that this restriction is not so broad as to bar doctors, medical and psychiatric personnel, and nurses from providing basic, unprivileged information to chaplains. The case demonstrates that, not only is the government restricted from collecting personal medical information, it may be restricted from disclosing such private information it lawfully receives.

At least one court has addressed disclosure of a patient’s condition with AIDS. In Woods v. White, 689 F.Supp. 874, 876 (W.D.Wis.1988), the court held that prison officials who discussed the fact that plaintiff had tested positive for AIDS with nonmedical prison personnel and with other inmates violated the inmate’s constitutional rights and could be held liable under section 1983. The court recognized plaintiff’s privacy interest in the information. The court stated that, to define the scope of the right to privacy in personal information, it must balance the individual’s right to confidentiality against the governmental interest in disclosure. Id. The court noted that information about one’s body and state of health is particularly sensitive, and that such information has traditionally been treated differently from other types of personal information. Id. (citing United States v. Westinghouse Electric Corp., 638 F.2d 570, 577 (3d Cir.1980)). Noting the most publicized aspect of the disease, that it is related more closely than other diseases to sexual activity and intravenous drug use, the court stated that “it is difficult to argue that information about this *384 disease is not information of the most personal kind, or that an individual would not have an interest in protecting against the dissemination of such information.” Id. The court held that plaintiff had a constitutional right to privacy in his medical records. Id.

The court then dismissed the need to balance plaintiffs interest against the governmental interest involved because defendants made no claim that any important governmental interest was served by their informal discussion of plaintiffs positive test for the AIDS virus. Recognizing that there might be circumstances that would limit plaintiffs right to privacy of his condition, the court noted that this case did not present such circumstances. 7

This court finds the reasoning employed by the Carter and Woods courts persuasive. The sensitive nature of medical information about AIDS makes a compelling argument for keeping this information confidential. Society’s moral judgments about the high-risk activities associated with the disease, including sexual relations and drug use, make the information of the most personal kind. Also, the privacy interest in one’s exposure to the AIDS virus is even greater than one’s privacy interest in ordinary medical records because of the stigma that attaches with the disease. The potential for harm in the event of a nonconsensual disclosure is substantial; plaintiff’s brief details the stigma and harassment that comes with public knowledge of one’s affliction with AIDS. 8

The hysteria surrounding AIDS extends beyond those who have the disease. The stigma attaches not only to the AIDS victim, but to those in contact with AIDS patients, see N.Y. Times, Sept. 8, 1985, at Al, col. 1 (doctor of gay patients threatened with eviction), and to those in high risk groups who do not have the disease. See Poff v. Caro, 228 N.J.Super. 370, 374, 549 A.2d 900, 903 (N.J.Super.Law Div.1987) (landlord refused to rent to three gay men for fear of AIDS); Newsweek, July 1, 1985, *385 at 61 (healthy gay men fired because of AIDS phobia); Nat’l L.J., July 25, 1983, at 3, 11 (California police demand masks and rubber gloves be used when dealing with gays); N.Y. Times, June 28, 1983, at A18, col. 1, 4 (Haitians denied employment because of fear of AIDS). Revealing that one’s family or household member has AIDS causes the entire family to be ostracized. The right to privacy in this information extends to members of the AIDS patient’s immediate family. Those sharing a household with an infected person suffer from disclosure just as the victim does. Family members, therefore, have a substantial interest in keeping this information confidential. Disclosures about AIDS cause a violation of the family’s privacy much greater than simply revealing any other aspect of their family medical history.

An individual’s privacy interest in medical information and records is not absolute. The court must determine whether the societal interest in disclosure outweighs the privacy interest involved. United States v. Westinghouse, 638 F.2d at 578. To avoid a constitutional violation, the government must show a compelling state interest in breaching that privacy. McKenna v. Fargo, 451 F.Supp. 1355, 1381 (D.N.J.1978).

The government’s interest in disclosure here does not outweigh the substantial privacy interest involved. The government has not shown a compelling state interest in breaching the Does’ privacy. The government contends that Officer Smith advised the DiAngelos to wash with disinfectant because of his concern for the prevention and avoidance of AIDS, an incurable and contagious disease. While prevention of this deadly disease is clearly an appropriate state objective, this objective was not served by Smith’s statement that the DiAngelos should wash with disinfectant. Disclosure of the Does’ confidential information did not advance a compelling governmental interest in preventing the spread of the disease because there was no risk that Mr. or Mrs. DiAngelo might be exposed to the HIV virus through casual contact with Jane Doe. The state of medical knowledge at the time of this incident established that AIDS is not transmitted by casual contact. Smith’s statement could not prevent the transmission of AIDS because there was no threat of transmission present.

This court concludes that the Does have a constitutional right of privacy in the information disclosed by Smith and the state had no compelling interest in revealing that information. As such, the disclosure violated the Does’ constitutional rights. This conclusion is consistent with the United States Supreme Court’s discussion in Whalen v. Roe, 429 U.S. 589, 605, 97 S.Ct. 869, 879, 51 L.Ed.2d 64 (1977) that the government may have a duty to avoid disclosure of personal information. Although sidestepping the question of whether the government had the duty to protect confidential information it lawfully obtains, the Court suggested that such a duty exists. See id. at 605-06, 97 S.Ct. at 879.

1. Defendant Smith.

To maintain an action under 42 U.S.C. § 1983 (1982) against Officer Smith, plaintiffs must show (1) that Smith deprived them of a right secured by the “Constitution and laws of the United States,” and (2) that Smith deprived them of this right “under color of any statute, ordinance, regulation, custom, usage, of any State or Territory.” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The second element requires that plaintiffs show that defendant Smith acted “under color of law.” Id. Plaintiffs have established that defendant Smith’s disclosure violated their constitutional right to privacy. Additionally, Smith was acting in his capacity as a police officer for Runnemede at all times relevant to this case, therefore, he was acting under color of state law within the meaning of section 1983. See Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982). Section 1983 liability attaches.

Defendant Smith did not assert a qualified immunity defense. Officials perform *386 ing discretionary functions are not liable if their conduct does not violate a clearly established constitutional or statutory right of which a reasonable person should have known. Harlow v. Fitzgerald, 457 U.S. 800, 818