United States Court of Appeals

For the First Circuit 

No. 16-1130 

BELSITO COMMUNICATIONS, INC., d/b/a 1st Responder Newspaper; 

BRIAN K. BLACKDEN, 

Plaintiffs, Appellants, 

 v. 

JAMES DECKER, New Hampshire State Trooper; COLONEL ROBERT L. 

QUINN, Director of the Division of State Police, New Hampshire 

Department of Safety, 

 Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Steven J. McAuliffe, U.S. District Judge] 

Before 

Thompson and Barron, Circuit Judges, 

and McConnell, District Judge.*

 Robert N. Isseks for appellant. 

Matthew T. Broadhead, Assistant Attorney General, with whom 

Joseph A. Foster, New Hampshire Attorney General, was on brief, 

for appellees. 

___________________ 

December 23, 2016 

___________________ 

 * Of the District of Rhode Island, sitting by designation. 
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THOMPSON, Circuit Judge. 

LEAD-IN 

Brian Blackden is a part-time freelance photographer who 

for years has sent photos to a bunch of regional-media outlets, 

including Belsito Communications, Inc. (just "Belsito" from now 

on). Belsito and Blackden filed this suit alleging that New 

Hampshire State Trooper James Decker violated their constitutional 

rights when he seized Blackden's camera at the scene of a vehicle 

crash in August 2010. Belsito and Blackden lost on summary 

judgment. And they fare no better on appeal: having studied the 

record and considered the parties' arguments in light of applicable 

law, we conclude, first, that Belsito lacks standing to pursue its 

constitutional claim; and, second, that even if Trooper Decker did 

violate Blackden's constitutional rights (a point we need not 

decide), Blackden failed to identify clearly-established law in 

August 2010 placing the illegality of the Trooper's conduct beyond 

debate. 

HOW THE CASE GOT HERE1

Back in the early 1980s, Blackden briefly worked as a 

firefighter-EMT for the New Hampshire towns of Kingston and Newton 

 1 We summarize the facts in the light most agreeable to 

Blackden and Belsito, the summary-judgment losers. See, e.g., 

Rivera-Corraliza v. Morales, 794 F.3d 208, 210 (1st Cir. 2015). 

Trooper Decker's brief points out that the parties (and the judge) 

relied on his statement of undisputed facts sketched in his 
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— though he has never been licensed or certified as a firefighter 

by the state.2 Jump forward a few years. In the early to mid1990s, Blackden worked as an in-house photographer for the town of 

Milton's fire department, a job that involved taking videos and 

pictures of fires and accidents for the department. And since the 

mid-2000s, he has worked as a freelance photographer, in addition 

to owning a company that sells camping-survival equipment (he gets 

most of his income from selling that gear). 

As a freelance photog, Blackden submits photos to a 

number of regional news outlets, including Belsito, a publisher of 

a website and newspaper called "1st Responder News" — a "niche 

publication . . . delivered to the emergency services community 

. . . that reports on local news and incidents within the states 

that it serves."3 Turns out, anyone can send in photos or stories 

to the website. All a person has to do is first create a username 

and password to access the website and then submit the material 

using an online form. Editors typically review stories submitted 

 

summary-judgment memo — plaintiffs' memo opposing summary judgment 

"did not contest the facts described" in his summary-judgment 

papers, he adds. And plaintiffs' reply brief does not contradict 

that point. So we "deem[]" Trooper Decker's fact statement 

"admitted." See D. N.H. R. 56.1. 

2 All towns mentioned in this opinion are in New Hampshire. 

3 Blackden has also sent photos to various television stations 

and newspapers, like New England Cable News and the Concord 

Monitor. 
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by newer "correspondents" — with "correspondent" defined as anyone 

who submits content to the website. But correspondents who have 

submitted content "for a while" can skip the review process. Most 

of the material Belsito publishes in its print newspaper comes 

from items it chooses to take from the website postings. And 

Belsito only pays correspondents if it publishes their content in 

its newspaper. 

Blackden began sending photos to Belsito in 2009. He 

has submitted over 400. He does not remember how many made it 

into Belsito's newspaper. But he does recall that one photo made 

the paper's front page. Belsito has never paid him a dime for any 

photos. Blackden says that "instead of money" the company will 

give him "a trade-off for advertising." But Belsito denies having 

that kind of relationship with him. 

In 2009 or 2010, Blackden bought an ambulance once used 

by the town of Derry. He modified the vehicle only slightly, 

swapping out the red lenses from the vehicle's front for yellow 

lenses (he did not touch the rear red lenses) and adding a sign 

above the rear license plate that read "Fire Department 

Photographer." Blackden kept a portable radio in the ambulance 

tuned to all the fire department radio bands for essentially the 

whole southern half of the Granite State. And he usually kept 

lots of different gear in the ambulance, like a black firefighter 
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helmet with the word "photographer" on it, a black turnout coat, 

and a blue vest with the word "photographer" on the back. The 

vest also had an ID badge with Blackden's photo and the words "1st 

Responder News, Brian K. Blackden, New Hampshire Region 

Contributing Correspondent" on it. 

Early on the morning of August 25, 2010, Blackden was 

awakened by an alert on his radio indicating that an auto accident 

had occurred on Interstate 93. The car had hit a tree in the 

median on the left side of the highway. And the Penacook rescue 

squad and the Canterbury fire department hurried to the scene. 

Dragging himself out of bed, Blackden hopped into his repurposed 

ambulance and drove to the scene. When he got there, he parked on 

the right side of the highway, at the edge of the pavement. He 

put on his "gear," walked across the interstate, stood in front of 

a Penacook fire department's rescue vehicle, and started taking 

pictures of the scene. His "gear" included a firefighter's helmet 

with the word "photographer" on it and a firefighter's turnout 

coat. Blackden knew that protocol required that he get the 

commanding firefighter's permission before accessing the accident 

scene — he could tell where the scene was based on how the emergency 

vehicles parked. Anyway, he did not ask for permission here. 

It is fair to say that Blackden's getup confused some of 

the emergency responders at the crash site. For example, the scene 
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commander, Canterbury Fire Chief Peter Angwin, assumed that 

Blackden was with the Penacook rescue team. At some point, Chief 

Angwin asked Blackden if that was his vehicle parked on the right 

side of the highway. Blackden said "yes." Convinced that the 

vehicle's location posed a potential safety hazard, Chief Angwin 

asked him to move it to the same side of the interstate as the 

rescue vehicles. Blackden did just that, driving his repurposed 

ambulance to the left side of the highway and pulling up behind a 

fire truck. As he got out of the ambulance, Blackden activated 

the red "wig-wag" lights on the top rear of his vehicle, the yellow 

"arrow" lights, and the emergency (brake light) flashers. 

Hearing that the driver of the vehicle involved in the 

accident had died, Blackden told Chief Angwin that "Penacook Rescue 

is leaving[;] I take photographs at a lot of their scenes" and 

asked if he would "like extraction photos," to which the Chief 

replied "no." Chief Angwin later said that Blackden had "stated 

that he was with Penacook or something about Penacook Rescue," 

adding that had Blackden been "dressed in a shirt and a tie, I 

would have had him removed from the scene" and stressing that 

"Blackden was able to get that close to the vehicle because of the 

gear that he had on and because of what he had previously said" 

about being "with Penacook." Anyhow, after Chief Angwin said "no" 
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to his photo-extraction offer, Blackden started walking back to 

his ambulance. And that is when he ran into Trooper Decker. 

When Trooper Decker got to the crash site, he saw an 

"ambulance-like" vehicle parked at the rear of the scene, with its 

red lights activated in a "wig-wag" fashion. Spotting Blackden in 

the "active scene" wearing a firefighter's getup, the Trooper 

questioned him. According to Trooper Decker, Blackden identified 

himself as being "with Penacook Rescue" and said he was there to 

photograph the scene on behalf of Penacook Rescue. After 

determining that Blackden was not a rescue-team member of any of 

the responding fire departments, Trooper Decker asked him for his 

firefighter credentials. "You claimed you're here with Penacook 

Rescue," Trooper Decker recalled saying to Blackden, so "[y]ou 

must have something that says you're with Penacook Rescue" — 

"[n]obody over there knows you." To this Trooper Decker recalled 

Blackden saying that he had "left them at home." 

Based on what had gone down, Trooper Decker believed 

Blackden had committed a slew of state-law crimes, including 

unlawfully impersonating an emergency rescue provider, unlawfully 

entering an emergency scene, and unlawfully using emergency 

lights. Trooper Decker also believed Blackden knew he was under 

investigation for possible state-law violations. And because he 

believed the camera contained evidence of criminal activity — 
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evidence that easily could be destroyed quickly — Trooper Decker 

thought exigent circumstances justified taking the camera without 

a warrant.4 Still, he took the precaution of running this by a 

local prosecutor. 

Whenever there is a fatal auto accident, the responding 

trooper must contact the county attorney's office and say whether 

"there is a criminal aspect to the crash." So Trooper Decker 

grabbed his cellphone, called the county attorney's office, and 

spoke with Assistant County Attorney ("ACA") Susan Venus. Trooper 

Decker told her about the auto-crash fatality, saying he thought 

the driver had probably fallen asleep at the wheel. But then he 

told her about 

a subject on scene who was dressed in emergency turnout 

gear who had driven a surplus ambulance with active 

emergency lights to this scene and parked that vehicle 

on a restricted access highway in and amongst the other 

emergency vehicles and had gotten out and was in the 

scene taking photographs. 

"[N]obody" there "knew who this person was," the Trooper added, 

and "he was not a member of any . . . of the responding agencies." 

The Trooper also told ACA Venus that he was considering seizing 

Blackden's digital camera as evidence of criminal conduct. And 

after filling her in on the particulars of the situation, Trooper 

 4 "Exigent circumstances" is a fancy way of saying "there is 

an emergency or other urgent need." United States v. Allman, 336 

F.3d 555, 557 (7th Cir. 2003) (Posner, J., for the court). 
- 9 -

Decker asked ACA Venus what she thought of his camera-seizure idea. 

She gave him the go-ahead. 

So Trooper Decker took the camera. But he did not take 

anything else, like the turnout coat, helmet, or ambulance. Asked 

why he had not seized these other things, the Trooper explained at 

his deposition that he "was most concerned" with the camera because 

it contained easily destroyable evidence of potential criminal 

actions. The photos, he added, placed Blackden 

in the scene. Impersonation is going to be contextual. 

It's a contextual offense. If Mr. Blackden chooses to 

dress as a firefighter for Halloween and goes to a 

costume party, nobody's going to charge him with 

impersonation. 

But, the Trooper noted, if Blackden "dresses as a firefighter and 

drives a surplus ambulance to a fatal crash scene, gets out, takes 

photos which can only be taken from certain points of view" — i.e., 

within the confines of the accident scene — "and then says" several 

times that "he's with Penacook Rescue, contextually that's 

impersonation." Sounding a consistent theme, the Trooper stressed 

that the camera mattered the most because he believed its metadata 

— which Blackden could erase with just a push of a button — could 

help "recreate Blackden's exact location within the scene relative 

to the location of the crash" and so provide evidence of Blackden's 

unauthorized accident-scene presence. 
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Trooper Decker did not arrest Blackden on the spot, 

though the parties concede that he had probable cause to do so. 

After letting him go, the Trooper confirmed with the lead emergency 

responders that Blackden was not a member of their squads and had 

not gotten permission to be there. Running a records check, the 

Trooper also learned that Blackden had never been a licensed 

firefighter and that his EMT license had expired in the late 1980s. 

The next day, August 26, Trooper Decker sought and 

received a warrant authorizing him to search the digital images on 

Blackden's camera. Blackden got his camera back the following 

day. But consistent with state law, the police kept the memory 

card as evidence of Blackden's alleged unlawful conduct. See 

generally N.H. Rev. Stat. Ann. § 595-A:6. Blackden later got 

charged under state law with: unlawfully displaying red emergency 

lights on his repurposed ambulance; unlawfully entering a 

controlled emergency scene; purposely impersonating emergency 

medical personnel; and obstructing government administration. 

Skipping over details not relevant to the issues on appeal, we see 

that after his criminal case wended its way through state court, 

Blackden stands convicted of the red-light violation.5

 5 Belsito and Blackden's lawyer told the district judge in 

this case that his client's red-light-violation conviction is "a 

valid conviction and it's the only conviction of his" — at least 
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Invoking 42 U.S.C. § 1983 — a statute that (broadly 

speaking) imposes liability on a person acting under state law who 

infringes the federally-guaranteed rights of another — Belsito and 

Blackden eventually filed this civil suit against Trooper Decker 

in New Hampshire federal court.6 Their operative complaint alleged 

that Trooper Decker's warrantless seizure of Blackden's digital 

camera and memory card violated Blackden's Fourth Amendment 

rights. They also alleged that Trooper Decker's actions kept 

Blackden from exercising his First Amendment right to publish the 

accident-scene photos. And they further alleged that the Trooper's 

actions violated Belsito's own constitutionally-protected right to 

publish Blackden's accident-scene pics as well. 

After some discovery, Trooper Decker asked for summary 

judgment. Granting the motion, the judge's ruling ran essentially 

as follows (we only hit the highlights). Belsito, the judge said, 

had no standing to bring any constitutional claim because (among 

other things) Belsito did not show that Trooper Decker took "any 

of its property" and did not "show[] any cognizable interest in 

 

that is what the judge said in his decision, and Belsito and 

Blackden's briefs do not contradict that point. 

6 Belsito and Blackden also sued Robert Quinn, in his official 

capacity as the Director of the Division of State Police, New 

Hampshire Department of Public Safety. But the judge granted 

Quinn's motion to dismiss. And Belsito and Blackden do not 

challenge that ruling. So we say no more about Quinn. 
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the contents of Blackden's memory card (other than the entirely 

speculative claim that if it had been given a timely opportunity 

to review Blackden's photographs, it may — or may not — have 

exercised its discretion to publish them)." Convinced the Trooper 

had probable cause to believe Blackden had violated the law, the 

judge found "exigent circumstances" — specifically the threat of 

evidence destruction — justified the warrantless seizure of 

Blackden's camera. The judge also saw no First Amendment 

violation, given that Blackden had no constitutional "right to 

unlawfully enter a controlled emergency scene — even if he intended 

to engage in conduct otherwise typically protected by the First 

Amendment." Wrapping up, the judge stressed that Trooper Decker 

was qualifiedly immune from suit, even if his actions resulted in 

a constitutional violation under current law, because 

constitutional standards (as applied to a situation like this) 

were unclear at the time of the disputed conduct. 

STANDARD OF REVIEW 

We review the judge's grant of summary judgment de novo, 

asking whether, taking the facts in the light most agreeable to 

Blackden and Belsito, there is no genuine dispute as to any 

material fact and Trooper Decker is entitled to judgment as a 

matter of law. See, e.g., Rivera-Corraliza, 794 F.3d at 214; 

Collazo–Rosado v. Univ. of P.R., 765 F.3d 86, 89, 92 (1st Cir. 
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2014); see also Santiago-Ramos v. Autoridad de Energía Eléctrica 

de P.R., AEE, a/k/a P.R. Power Co., 834 F.3d 103, 105-06 (1st Cir. 

2016). And we can affirm summary judgment on any ground supported 

by the record. See, e.g., Houlton Citizens' Coal. v. Town of 

Houlton, 175 F.3d 178, 184 (1st Cir. 1999). 

ISSUES INVOLVING BELSITO 

As they did in the district court, the parties duke it 

out over whether Belsito has standing to litigate a First-Amendment 

claim against Trooper Decker.7 Belsito comes out swinging, 

insisting that Trooper Decker's warrantless seizure of the camera 

"prevent[ed]" it from publishing "Blackden's photos" and so gave 

rise to an injury in fact fairly traceable to the Trooper's conduct 

and redressable by judicial relief. Au contraire, counters Trooper 

Decker: the summary-judgment record contains no evidentiary 

support for "the claim that Blacken was taking photos on behalf of 

Belsito" or that Belsito "had any contractual relationship" with 

"or legal interest in Blackden's personal property or photographs" 

 7 We must address a party's standing to push constitutional 

claims even if the claims are easier to resolve than the standing 

issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 

99, 101 (1998) (rejecting as "precedent-shattering" the idea that 

an "an 'easy' merits question may be decided on the assumption of 

jurisdiction," and noting that "[h]ypothetical jurisdiction 

produces nothing more than a hypothetical judgment — which comes 

to the same thing as an advisory opinion, disapproved by this Court 

from the beginning"). 
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and so Belsito's "claim is far too attenuated to vest it with 

standing in this matter." We score this round for Trooper Decker. 

Standing Rules

It goes without saying — but we say it anyway — that 

federal courts are courts of limited jurisdiction, limited to 

deciding certain cases and controversies, for example. See U.S. 

Const. art. III, § 2. A key component of the case-or-controversy 

requirement is that a suing party demonstrate standing to sue. 

And to show standing in this sense, "[t]he party invoking federal 

jurisdiction" — here, Belsito — must show the following: (a) "an 

injury in fact" that is "concrete and particularized" and "actual 

or imminent, not conjectural or hypothetical"; (b) "a causal 

connection" — what the high Court occasionally calls 

"traceability" — between the injury and the challenged conduct; 

and (c) redressability — that the injury will "likely . . . be 

redressed by a favorable decision." Lujan v. Defs. of Wildlife, 

504 U.S. 555, 560–61 (1992) (quotation marks omitted). 

Importantly, the suing party at the summary-judgment stage must 

point to specific evidence in the record, not simply rely on "mere 

allegations." See id. at 561 (quotations omitted); accord Osediacz 

v. City of Cranston, 414 F.3d 136, 139 (1st Cir. 2005) (emphasizing 

that "[t]he party seeking to invoke the federal court's 
- 15 -

jurisdiction — normally, the plaintiff — bears the burden of 

pleading and proof on each step of the standing pavane"). 

Applying the Rules 

Belsito spends a lot of time talking about how news 

gathering enjoys some First-Amendment protection, which is an 

uncontroversial statement of the obvious. See Branzburg v. Hayes, 

408 U.S. 665, 681 (1972) (noting that "without some protection for 

seeking out the news, freedom of the press could be eviscerated"). 

But as for its injury-in-fact claim, Belsito says (emphasis ours) 

that it is this, and this alone: "the 'injury in fact' is the 

loss of the opportunity to publish" the August 25 pics Blackden 

had snapped "on Belsito's behalf while [he] was acting as [its] 

correspondent." The insurmountable problem for Belsito is that it 

cites no evidence to back up its theory that Blackden took the 

photos on its behalf. And we will not become archeologists, 

devoting scarce judge-time to dig through the record in the hopes 

of finding something Belsito should have found. See RodríguezMachado v. Shinseki, 700 F.3d 48, 50 (1st Cir. 2012) (per curiam) 

(reminding lawyers and litigants — using a colorful quote from a 

Seventh-Circuit opinion — that "[j]udges are not like pigs, hunting 

for truffles" buried in the record (alteration in original) 

(quotation marks omitted)). What Belsito does do — helpfully and 

commendably — is concede that 
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 Belsito has no contractual relationship with Blackden; 

 "the photos on" Blackden's camera's "memory card were not 

technically Belsito's"; 

 "Blackden could have taken the photos for anyone"; and 

 Belsito "'may — or may not — have'" published the pics had 

Blackden offered them to it (here, Belsito is quoting the 

district judge). 

True, as Belsito notes, Blackden has submitted hundreds of photos 

to Belsito's 1st Responder website since 2009. But Belsito's reply 

brief does not dispute Trooper Decker's point that "as a freelance 

photographer, Blackden may have sent the [August 25] photographs 

to any number of other media outlets without any obligation to 

Belsito." 

The net result: by failing to provide record support 

for its injury-in-fact theory — namely, that Balckden took the 

pics on its behalf — Belsito has not carried its burden of 

establishing standing. See Osediacz, 414 F.3d at 143. 

Enough said about standing. 

ISSUES INVOLVING BLACKDEN 

On the qualified-immunity front, our combatants battle 

over whether Trooper Decker violated clearly-established Fourthand First-Amendment law. This round goes to the Trooper too, 

however. 
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Qualified-Immunity Rules 

Qualified immunity protects an officer from suit when a 

reasonable decision in the line of duty ends up being a bad guess 

— in other words, it shields from liability "all but the plainly 

incompetent or those who knowingly violate the law." See Taylor 

v. Barkes, 135 S. Ct. 2042, 2044 (2015) (quoting Ashcroft v. al–

Kidd, 563 U.S. 731, 743 (2011)); see also Rivera-Corraliza, 794 

F.3d at 215. "[R]easonable mistakes," the Supreme Court tells us, 

"can be made as to the legal constraints" on officers, and when 

that happens, the officer is qualifiedly immune from damages. 

Saucier v. Katz, 533 U.S. 194, 205 (2001), overruled on other 

grounds by Pearson v. Callahan, 555 U.S. 223 (2009); see also 

Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009) (stressing 

that "qualified immunity, when raised on summary judgment, demands 

deference to the reasonable, if mistaken, actions of the" officer). 

To avoid a qualified-immunity defense, Blackden must show (1) that 

Trooper Decker infracted his federal rights and (2) that these 

rights were so clearly established that a reasonable officer should 

have known how they applied to the situation at hand. See, e.g., 

City & Cnty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1774 (2015); 

Pearson, 555 U.S. at 232; Cortés-Reyes v. Salas-Quintana, 608 F.3d 

41, 51-52 (1st Cir. 2010). 
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We of course may deal with these qualified-immunity 

steps in any order we please. See, e.g., Pearson, 555 U.S. at 

236. And today we begin — and end — with the clearly-established 

step, which requires Blackden to spotlight "controlling authority" 

or "a robust consensus of cases of persuasive authority" (if there 

is one) that forbade Trooper Decker from acting as he did.8 See, 

e.g., Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quotation 

marks omitted). Public officials, our judicial superiors tell us, 

need not be legal savants to win a qualified-immunity case. See 

Crawford–El v. Britton, 523 U.S. 574, 590 (1998); cf. generally 

Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010) (noting that 

qualified immunity's aim is to "avoid the chilling effect of 

second-guessing where the officers, acting in the heat of events, 

made a defensible (albeit imperfect) judgment"). And, they also 

tell us, judges must 

not . . . define clearly established law at a high level 

of generality. The general proposition, for example, 

that an unreasonable search or seizure violates the 

Fourth Amendment is of little help in determining 

 8 Please note: because we resolve this case on the clearlyestablished ground, we express no view on the constitutionality of 

Trooper Decker's conduct, see Barton v. Clancy, 632 F.3d 9, 12, 30 

n.20 (1st Cir. 2011) (taking a similar tack in a qualified-immunity 

case) — a point so important that we will repeat it again and again 

throughout this opinion. 
- 19 -

whether the violative nature of particular conduct is 

clearly established. 

al–Kidd, 563 U.S. at 742 (citations omitted). Rather, a "more 

particularized" inquiry is required. See, e.g., Anderson v. 

Creighton, 483 U.S. 635, 640 (1987). That makes sense. Because 

"[c]ourts penalize officers for violating bright lines, not" — as 

we just said — "for making bad guesses in gray areas," RiveraCorraliza, 794 F.3d at 215 (quotation marks omitted), if the 

pertinent "legal principles are clearly established only at a level 

of generality so high that officials cannot fairly anticipate the 

legal consequences of specific actions, then the requisite notice 

is lacking," Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 

2003) (en banc) (opinion of Selya, J.). So "the relevant legal 

rights and obligations must be particularized enough that a 

reasonable official can be expected to extrapolate from them and 

conclude that a certain course of conduct will violate the law." 

Id. (citing Saucier, 533 U.S. at 201-02).9

The bottom line, then, is that while Blackden need not 

show that the complained-about conduct is the spitting image of 

 9 A sibling circuit nicely explained why it is critically 

important to define the rights in question at the correct level of 

generality: 

If a court does not carefully define the right, it risks 

collapsing the two qualified-immunity inquiries into 

one, permitting the constitutional-violation inquiry 

always to answer the clearly established inquiry. 
- 20 -

conduct previously deemed unlawful, he must show that the conduct's 

unlawfulness was "apparent," given preexisting law. See Anderson, 

483 U.S. at 640. What that means is that qualified immunity 

protects Trooper Decker unless Blackden can persuade us that 

caselaw on the books in August 2010 put the constitutionality of 

his actions "beyond debate." See al–Kidd, 563 U.S. at 741; see 

also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (emphasizing 

that a right is "clearly established" when it is no longer within 

the "hazy" area of constitutional issues that might be "reasonably 

misapprehend[ed]" by an officer at the scene (quotation marks 

omitted)); see generally Morelli, 552 F.3d at 18-19 (discussing 

how qualified immunity works in a summary-judgment case). 

One more important qualified-immunity nugget to keep in 

mind as we go forward: if an officer consulted with a prosecutor 

about "the legality of an intended action" — disclosing known info 

pertinent to that analysis — then his "reliance on emergent advice 

 

Precedent demands instead that we go down the stairs of 

abstraction to a concrete, particularized description of 

the right. Though not too far down: just as a court 

can generalize too much, it can generalize too little. 

If it defeats the qualified-immunity analysis to define 

the right too broadly (as the right to be free of 

excessive force), it defeats the purpose of § 1983 to 

define the right too narrowly (as the right to be free 

of needless assaults by left-handed police officers 

during Tuesday siestas). 

Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 508-09 

(6th Cir. 2012). 
- 21 -

might be relevant . . . to the reasonableness of his later conduct" 

and so "may help to establish qualified immunity." Cox v. Hainey, 

391 F.3d 25, 34 (1st Cir. 2004). As a policy matter, "it makes 

eminently good sense, when time and circumstances permit, to 

encourage officers to obtain an informed opinion before charging 

ahead." Id. But we have cautioned that consultation with "a 

friendly prosecutor does not automatically guarantee that 

qualified immunity will follow" and that "the officer's reliance 

on the prosecutor's advice" must be "objectively reasonable" — 

i.e., "[r]eliance" will not forestall liability "if an objectively 

reasonable officer would have cause to believe that the 

prosecutor's advice was flawed, off point, or otherwise 

untrustworthy." Id. at 35. 

Applying the Rules 

The Fourth-Amendment Claim 

Blackden says that Trooper Decker violated his FourthAmendment rights by warrantlessly seizing the camera and memory 

card absent exigent circumstances and that the judge reversibly 

erred by concluding otherwise. Trooper Decker, unsurprisingly, 

takes the exact opposite position. We side with the Trooper. 

Blackden is right that the Fourth Amendment guards 

against "unreasonable" searches and seizures. Rivera-Corraliza, 

794 F.3d at 215 (quoting U.S. Const. amend. IV). He is also right 
- 22 -

that a warrantless search or seizure is "per se unreasonable[] 

unless the police can show that it falls within one of a carefully 

defined set of exceptions based on the presence of 'exigent 

circumstances.'" Coolidge v. New Hampshire, 403 U.S. 443, 474-75 

(1971). And he is right that "[t]o show exigent circumstances, 

the police must reasonably believe that there is such a compelling 

necessity for immediate action as will not brook the delay of 

obtaining a warrant," like "when delay would risk the destruction 

of evidence" — with our caselaw requiring that the police have 

"an objectively reasonable basis" for believing that evidence 

destruction "is likely to occur." See United States v. Samboy, 

433 F.3d 154, 158 (1st Cir. 2005) (quotation marks omitted); see 

also id. (adding that "[p]roof of exigent circumstances should be 

supported by particularized, case-specific facts, not simply 

generalized suppositions about the behavior of a particular class 

of criminal suspects" (quotation marks omitted)); MacDonald v. 

Town of Eastham, 745 F.3d 8, 13 n.3 (1st Cir. 2014) (highlighting 

some of Samboy's requirements). On this score, and by way of 

example, we note Samboy concluded that exigent circumstances 

permitted a warrantless entry into a suspected drug dealer's 

apartment because what the officers did — "knocking and announcing 

their presence" — "gave rise to a reasonable belief" that the 
- 23 -

dealer "probably would have realized" that the law was "closing in 

and begun disposing of the evidence." 433 F.3d at 158-59. 

But at step two of the qualified-immunity inquiry we 

must ask whether Blackden has pinpointed clearly-established law 

at the time of the seizure that would have stopped a reasonable 

trooper from thinking exigent circumstances existed "in the 

situation [he] encountered." See Marrero-Méndez v. CalixtoRodríguez, 830 F.3d 38, 46 (1st Cir. 2016). And that situation — 

remember — was this: 

 Trooper Decker believed Blackden had violated a number of 

state laws, giving him probable cause to arrest Blackden — 

though the Trooper decided not to do that then and there. 

 Blackden knew Trooper Decker was investigating him for 

possible criminal violations, or so the Trooper thought. 

 Trooper Decker believed the camera and memory card contained 

evidence that could help establish Blackden's presence at the 

scene, which could help prove Blackden had committed a crime. 

 Unlike the turnout coat, helmet, or ambulance, the camera and 

memory could be destroyed in a flash without breaking a sweat 

— at least that is what the Trooper concluded. 

 And Trooper Decker consulted with a prosecutor before taking 

the camera and memory card. 
- 24 -

Blackden thinks he has a case — Menotti v. City of Seattle, 409 

F.3d 1113 (9th Cir. 2005) — that clearly establishes the illegality 

of Trooper Decker's conduct when the underlying events occurred. 

But this out-of-circuit decision does nothing of the sort. 

An issue in Menotti was whether exigent circumstances 

justified an officer's warrantless seizure of a protestor's sign. 

Id. at 1153. The court's ruling had three components pertinent to 

our case. One, the court said that despite having probable cause 

to arrest the protestor for protesting in a restricted area, the 

officer made no arrest and so could not seize the sign under the 

search-incident-to-arrest exception to the warrant requirement — 

an exception justified in part by the need to prevent an arrestee 

from destroying evidence. Id. (quoting Knowles v. Iowa, 525 U.S. 

113, 116-17 (1998)). Two, because the officer "faced a relatively 

calm situation" when he crossed paths with the protester — the 

officer was not "immediately engaged in combating violence" — the 

court ruled "no exigency requir[ed] seiz[ing]" the sign without a 

warrant. Id. at 1153-54 (explaining that "the relatively calm 

situation" meant "the circumstances were not exigent when [the 

officer] confronted [the protester] and seized the sign"). And 

three, the court "did not see how" — on the facts of that case — 

the officer "legitimately could be concerned about a need to 

preserve evidence of a crime from being destroyed." Id. at 1153. 
- 25 -

Menotti does not help Blackden's cause. Yes, like the 

officer there, Trooper Decker seized an item without making an 

arrest. But under Menotti, that just means the Trooper cannot 

rely on the search-incident-to-arrest exception — an exception he 

does not invoke. And in talking about whether violence at the 

scene triggered exigent circumstances, Menotti did not address the 

type of exigency in our case, described two paragraphs ago — namely 

(and we say this again as a matter of helpful repetition) that 

Trooper Decker (a) believed Blackden had broken a bunch of state 

laws; (b) suspected Blackden knew he had caught the Trooper's eye; 

(c) concluded Blackden possessed evidence that could help nail him 

criminally; and (d) thought the evidence could be destroyed with 

ease before a search warrant could issue. Also, Menotti did not 

deal with an officer who had consulted with a prosecutor and so 

says nothing about how such a consultation should affect our 

qualified-immunity analysis.10 And because Menotti is little like 

our case, Blackden has not met his burden of showing that a 

reasonable trooper — confronted with the facts here — would have 

known beyond debate that he lacked exigent circumstances. 

Of course, and to repeat a point made above (but with 

slightly different words), "a general constitutional rule already 

 10 Blackden does not argue that Trooper Decker should not have 

relied on the prosecutor's approval. 
- 26 -

identified in the decisional law may apply with obvious clarity to 

the specific conduct in question, even though the very action in 

question has not previously been held unlawful." United States v. 

Lanier, 520 U.S. 259, 271 (1997) (emphasis added) (quotation marks 

and alterations omitted). But this is a narrow exception, as the 

example the Court used shows: although "[t]here has never been 

. . . a section 1983 case accusing welfare officials of selling 

foster children into slavery," the Court noted, "it does not follow 

that if such a case arose, the officials would be immune from 

damages," id. (quotation marks omitted) — for simplicity, we refer 

to this as the "slavery hypothetical."11 And Blackden makes no 

persuasive case that the general Fourth-Amendment principles he 

throws around (excerpted in the second paragraph to this section 

of this opinion) clearly establish the unlawfulness of Trooper 

Decker's conduct, like the general principles at play in the 

slavery hypothetical would for the imagined welfare officials.12

 11 To eliminate any confusion, we wish to emphasize that the 

slavery hypothetical discredits the notion that one must have a 

case on point, but one need not have a case as easily labeled 

"unconstitutional" as the slavery hypothetical to show a violation 

of clearly-established law. 

12 Still hoping against hope for a reversal on the FourthAmendment ruling, Blackden suggests in a one-sentence footnote to 

his opening brief that "[a]ny claim by Decker that the preservation 

of images" amounts to exigent circumstances "is a bit suspect," 

since he "did not bother to seize" other "potentially incriminating 

evidence," like "Blackden's vehicle or fire apparel." But Blackden 

cites no clearly-established caselaw that would have put the 
- 27 -

Let us be crystal clear: Because we resolve Blackden's 

Fourth-Amendment claim at the second step of the qualifiedimmunity test (as we are free to do), we need not say whether 

Trooper Decker's actions were legal — i.e., we do not say whether 

exigent circumstances were or were not in play. Nor need we 

explore what the precise parameters of the exigent-circumstances 

exception are or should be. All we need say is that Blackden has 

not met his burden of showing that clearly-established law in 

August 2010 precluded a reasonable trooper from believing the 

exigent-circumstances exception applied in this situation. And it 

is on that basis alone that we affirm the judge's qualifiedimmunity ruling on this claim. Cf. generally PDK Labs., Inc. v. 

Drug Enf't Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, 

J., concurring in part and concurring in judgment) (emphasizing 

the raw truism that "if it is not necessary to decide more, it is 

necessary not to decide more"). 

 

Trooper on notice that his not seizing these other items made the 

camera seizure unlawful. Nor does he argue that this was so 

obvious a violation that any reasonable officer would have known 

about it. See Marrero–Méndez, 830 F.3d at 47. So Blackden's 

footnote suggestion does not cut it. 
- 28 -

The First-Amendment Claim 

The parties agree — or at least do not dispute — that 

 "the First Amendment goes beyond protection of the press and 

the self-expression of individuals to prohibit government 

from limiting the stock of information from which members of 

the public may draw," Glik v. Cunniffe, 655 F.3d 78, 82 (1st 

Cir. 2011) (quotation marks omitted); 

 a critical "corollary to this interest . . . is that there is 

an undoubted right to gather news from any source by means 

within the law," id. (emphasis added) (quotation marks and 

alteration omitted) — remember that emphasized phrase;13 and 

 news-gatherers "have no constitutional right of access" to a 

restricted area "when the general public is excluded," 

Branzburg, 408 U.S. at 684-85.14

But this Kumbaya-like vibe changes when the parties 

discuss the emphasized phrase from Glik — "by means within the 

 13 See also Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 

1999) (explaining that because a journalist's "activities were 

peaceful, not performed in derogation of any law, and done in the 

exercise of his First Amendment rights," a police officer "lacked 

the authority" to arrest him for filming officials in the hallway 

outside a public meeting of a historic-district commission). 

14 See also id. at 684 (adding that "the First Amendment does 

not guarantee the press a constitutional right of special access 

to information not available to the public generally"); Cohen v. 

Cowles Media Co., 501 U.S. 663, 669 (1991) (pointing out "that 

generally applicable laws do not offend the First Amendment simply 

because their enforcement against the press has incidental effects 
- 29 -

law." As Blackden sees it, that Trooper Decker possibly had 

probable cause to arrest him hardly means that he (Blackden) acted 

unlawfully when taking the pics at issue — a jury, Blackden writes, 

could find that he had acted above-board, given that the state 

"criminal charges against [him] were ultimately dismissed." And 

because that is so, his argument continues, Trooper Decker is not 

qualifiedly immune from suit on the First-Amendment claim — despite 

what the judge ruled. Nonsense, says Trooper Decker: because 

Blackden (among other things) "gained access to the scene by 

deceptively operating" a repurposed ambulance "with red flashing 

lights" — don't forget, Blackden's attorney admitted below that 

his client was convicted of the red-light violation (turn back to 

footnote 5) — "Blackden was not acting 'within the law'" and thus 

the judge rightly resolved the qualified-immunity defense in his 

favor. For our part, we see no reversible error either. 

At qualified-immunity's second step, Blackden must show 

that clearly-established law in August 2010 would have put Trooper 

Decker on clear notice of his potential First-Amendment liability. 

And regarding the "by means within the law" theory, Blackden points 

us to nothing that would have put a sensible trooper on notice in 

 

on its ability to gather and report the news"); Asociacion de 

Periodistas de P.R. v. Mueller, 529 F.3d 52, 58 (1st Cir. 2008) 

(emphasizing that "[t]he First Amendment does not grant the press 

a special right of access to property beyond the public domain"). 
- 30 -

August 2010 that even if he (the trooper) had probable cause to 

pursue criminal charges against a photographer unauthorizedly in 

a restricted area and had talked to a prosecutor, he still could 

not have rationally concluded that the photographer had acted 

outside the law while shooting the photos.15 More, Blackden gives 

us no convincing reason to suppose that the pertinent 

constitutional principles were so particularized back then that 

Trooper Decker could not have rationally thought he had the legal 

wiggle room to do as he did — i.e., he presents nothing to persuade 

us that Trooper Decker's actions, like the actions of the welfare 

officials in the slavery hypothetical, constitute conduct so 

egregious that a reasonable official must have known it was 

unconstitutional. 

So that there is no confusion about our holding on the 

First-Amendment claim: We do not say whether Trooper Decker's 

actions did or did not violate Blackden's First-Amendment rights. 

Nor do we say what a complete compendium of First-Amendment rights 

for news gathers is or should be. We say only that Blackden failed 

to identify clearly-established law as of August 2010 showing 

 15 We repeat again what we said in footnote 10: Blackden 

makes no argument that Trooper Decker should not have relied on 

the prosecutor's approval. 
- 31 -

beyond debate that Trooper Decker's specific acts violated the 

First Amendment. And that is that. 

WRAP-UP 

For the reasons recorded above, we affirm the judgment 

entered below.