Oklahoma City to pay $400,000 to settle video dealers’ ‘Tin Drum’ lawsuit

Friday, March 19, 1999

Oklahoma City has agreed to pay $400,000 in attorney fees to two national video business associations and a local video store to settle a lawsuit over the seizure of the movie The Tin Drum from area video outlets.

The Video Software Dealers Association, the National Association of Recording Merchandisers and a local video store, Southwest Video Rentals, sued the city, several police officers and the county district attorney in July 1997. The groups sued after police confiscated all copies of the movie that they could find from local video outlets and the public library.

In addition, the police officers demanded that store clerks give them the home addresses of people who were renting the movie. The officers then went to private residences and confiscated those copies as well.

The defendants alleged that the movie, which won a 1979 Academy Award for Best Foreign Film, violated a state child-pornography law.

In Video Software Dealers Association, Inc. v. City of Oklahoma City, the plaintiffs alleged that the defendants violated constitutional rights, including First Amendment free-expression rights, and a federal law, the Video Privacy Protection Act of 1988, which protects the “personally identifiable information” of video store customers.

The video industry plaintiffs did not seek monetary damages in their lawsuit. Instead they sought a ruling from the court, known as a declaratory judgment, that the actions of the city violated the First Amendment, the Fourth Amendment right to be free from unreasonable searches and seizures, the 14th Amendment right to due process and the federal privacy law.

The video dealers also sought an injunction to prevent the defendants from “removing public access” to movies and other expressive materials protected by the First Amendment. They also sought attorney fees.

The city said it agreed to the attorney-fees settlement because U.S. District Judge Ralph Thompson ruled in favor of the plaintiffs in December 1998. In civil rights litigation, the prevailing party can normally recover attorney fees from the losing side.

In his December ruling, Thompson determined that the movie was protected from prosecution under the child-pornography statute because of a state-law exception for bona fide works of art. He also determined that the defendants violated the federal privacy law.

Thompson first ruled that the movie could not be prosecuted under the child-pornography law in another lawsuit, State of Oklahoma ex. rel. Robert H. Macy v. Blockbuster Videos, Inc., in which Oklahoma County District Attorney Robert Macy sought a ruling from the court that the movie violated the state child pornography law. In October 1998, Thompson dismissed Macy's lawsuit and ruled that the movie was protected by the First Amendment.

Thompson incorporated the findings he reached in the Macy case in the Video Software Dealers case.

A third lawsuit, Camfield v. City of Oklahoma City, related to the confiscation of the video is still pending. Michael Camfield, the development director of the Oklahoma chapter of the American Civil Liberties Union, sued Oklahoma City and several individuals, contending they violated his civil rights by confiscating a copy of the movie, which he had rented from a local Blockbuster store, from his home. Camfield said that the case was scheduled to go to trial in June.

City officials reached a tentative agreement to settle the Video Software Dealers lawsuit on Feb. 22. The settlement was approved earlier this week by the city council.

John T. Mitchell, attorney for the video dealers, said: “We are pleased that the settlement includes the city's adoption of new policies for handling expressive materials and for protecting the privacy of video store rental records.”

Mitchell said that under the settlement the city has to provide training to law enforcement personnel to prevent similar incidents like this from happening in the future.

Richard Smith, assistant municipal counselor who represented the city in the lawsuit, confirmed that the city had agreed to pay $400,000 in attorney fees to settle the dispute.

Mitchell also said that the Oklahoma County District Attorney's Office had agreed to pay $175,000 as part of the settlement. John Jacobsen, the assistant district attorney who handled the lawsuit, and Macy were out of the office on Friday and unavailable for comment.