By: Erica Shelley Nelson and Sarah Burke
In Lange v. McGinnis, a Michigan police captain deleted all the files on a former employee’s hard drive before returning it to him. The employee sued the city and the captain alleging an illegal search and seizure under the Fourth Amendment. The Sixth Circuit held that the police captain was protected from the suit under qualified immunity because nothing indicated his actions were impermissible.
Roger Lange was hired as Benton Harbor’s police chief in 2009. In 2011, many counties in Michigan were placed under financial emergency decrees and emergency managers were hired to manage affairs. As a cost saving measure, the police and fire department were combined to form the Department of Public Safety and Lange was appointed as Director. However, in 2013, an anonymous letter was sent to the City Commissioners that indicated Lange was not trained as a firefighter. The Commission placed Lange on leave and asked him to pass a firefighter certification test before he came back to work.
After Lange was unable to pass the physical portion of the test, he requested the return of his personal belongings from his office. One of these items was a computer hard drive. The city’s emergency manager directed the police captain to return the hard drive to Lange, but only after he had removed any city files. Rather than comb through each file individually, the police captain deleted all of the files contained on the hard drive before returning it to Lange. Lange proceeded to file a Fourth Amendment claim alleging an illegal search and seizure based off of the police captain’s actions.
To invoke the protections of the Fourth Amendment, government employees must first show they had a ‘reasonable expectation of privacy’ in the subject of the search. Employees must then show that the search was unreasonable at its inception, or as to its scope, or both.
The Sixth Circuit held that Lange could not demonstrate a Fourth Amendment violation because the city was entitled to delete work files and could only do so by searching the hard drive. Additionally, the Court found the search and seizure was minimally invasive because the police captain opened a single folder and deleted it rather than going through each document to decipher which were personal and which were work product—an action the Court viewed as much more invasive. In light of these facts, the Court found nothing would have made clear to a reasonable officer that the search was unconstitutional.
As set forth above, the Fourth Amendment protects government employees from unreasonable searches and seizures. The “subjects” of the search often include, for example, workplace lockers, government-issued vehicles, and government-owned computers or electronic devices.
The critical question is whether the employee has a reasonable expectation of privacy in the subject of the search, which frequently requires a case-by-case analysis. Employers often have workplace policies indicating that certain subjects, such as work lockers, only be used for “work purposes” and are “subject to random searches.” In that situation, the employee would have less of an expectation of privacy because the locker is only supposed to be used for work, not personal effects, and the employee has notice that the employer can search the locker at any time.
This case has an interesting nuance though because the item searched was the former employee’s personal computer hard drive that contained both city work files and personal files. The expectation of privacy an employee has in their own personal computer is certainly much greater than, for example, a government-issued computer. Even though the captain only opened one file and deleted everything on the hard drive rather than comb through all of the documents on the computer, I certainly think an employee has a reasonable expectation of privacy in their own personal computer, even if it contains work-related files. As a result, I am not sure the Court’s holding here is correct.
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