Lee Paige v. Drug Enforcement Administration

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2011 Decided January 17, 2012
No. 11-5023
LEE P AIGE,
APPELLANT
v.
DRUG ENFORCEMENT ADMINISTRATION ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-00644)
Ward A. Meythaler argued the cause for the appellant.
Helen L. Gilbert, Attorney, United States Department of
Justice, argued the cause for the appellee. Tony West,
Assistant Attorney General, Ronald C. Machen Jr., United
States Attorney, and Mark B. Stern, Attorney, were with her
on brief. R. Craig Lawrence, Assistant United States
Attorney, entered an appearance.
Before: HENDERSON , T ATEL and BROWN, Circuit Judges.

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Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LEC RAFT H ENDERSON, Circuit Judge: Appellant
Lee Paige (Paige) appeals the district court’s grant of
summary judgment to the United States Drug Enforcement
Administration (DEA) on claims he brought under the Privacy
Act, 5 U.S.C. § 552a, and the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. For the reasons
set forth below, we affirm the district court.
I. FACTS
Paige is a special agent in the DEA’s Orlando District
Office. On Friday, April 9, 2004,1
With Paige’s knowledge, one of the parents in attendance
video-recorded Paige’s presentation—including the accidental
discharge—on a mini-DV cassette tape (Mini-DV). The
video was over one hour long and was the only video-
recording of Paige’s presentation. The parent turned the
Mini-DV over to the DEA agents who arrived on the scene
that night. Later that night, Robert Patterson, another DEA
he spoke to a group of
about fifty children and parents at a community center in
Orlando, Florida. At the time, Paige was an undercover agent
who also often spoke to schools and other organizations to
educate the public about the dangers of illegal drugs. During
the presentation, Paige displayed his DEA-issued firearm
while discussing gun safety and telling the audience that
firearms should be handled only by professionals like himself.
His firearm accidentally discharged and he shot himself in the
thigh.
1 The facts come from Paige’s amended complaint and the
materials the parties submitted in support of their respective
motions for summary judgment. All dates referred to herein are in
2004 unless otherwise noted.

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special agent from the Orlando District Office, copied the
Mini-DV onto a VHS tape.
The DEA Office of Inspections (IN), headquartered in
Arlington, Virginia, is responsible for investigating all
shooting incidents involving DEA personnel. Upon receiving
notification of a shooting, IN determines whether to
immediately dispatch inspectors from IN headquarters to
investigate the shooting or to delegate the investigation to the
local DEA office. On April 12, after receiving notice of the
shooting involving Paige, IN informed Steve Collins, the
Assistant Special Agent in Charge in the Orlando District
Office, that it did not intend to send inspectors to Orlando. IN
also asked Collins to send IN a copy of the video-recording.
That same day, Collins gave the Mini-DV and the VHS to
Peter Gruden, a DEA supervisor in the Orlando District
Office. Collins instructed Gruden to mail the VHS to IN per
its request; Gruden mailed the VHS to IN later that week. On
April 14 or 15, IN decided to send two inspectors from
headquarters to investigate the shooting because an agent had
been injured and because of concern about adverse publicity
resulting from the incident.
Sometime during the week of April 12, Gruden directed
technical personnel at the Orlando District Office to make “a
few” additional copies of the Mini-DV. Def.’s Mot. Summ.
J., Ex. 11, Paige v. U.S. Drug Enforcement Admin., No. CV
01:06-644, at 114 (D.D.C. May 16, 2008).2
2 The DEA technician who made the copies stated in his
deposition that Gruden requested four copies of the Mini-DV.
The copies were
made on compact discs (CDs). The video appearing on the
CD was four minutes, nine seconds (4:09 video) in duration
and it depicted only the accidental discharge portion of the
Mini-DV. Gruden provided the 4:09 video to several
individuals. He sent one copy to William Lutz, the head of

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the DEA Firearms Training Unit at Quantico, Virginia.3
Gruden also sent copies to two friends, DEA Special Agents
Steven Derr and Rick Bendekovic. Gruden gave another copy
to Kevin Scully, then a DEA agent in the Orlando District
Office, but Scully returned the video to Gruden the same day
Gruden gave it to him.4 Finally, according to Gruden’s
deposition, at Collins’s request, he sent a copy of the 4:09
video to the DEA Miami Field Division Management.5
On April 16, an IN program analyst at IN headquarters
opened a file for the Paige investigation (IN file). The file
was retrievable by Paige’s name. 6
The two IN inspectors traveled to Orlando on April 19
and returned to IN headquarters on April 21. While in
Orlando, the IN inspectors obtained the Mini-DV from
Gruden. At some point after returning to IN headquarters,
It consisted of two parts: a
correspondence file (maintained by the IN program analyst)
and an investigative file. The investigative file included the
evidence gathered by Gruden and the IN inspectors.
3 Along with the 4:09 video, Gruden sent Lutz a copy of a DEA
form Gruden had prepared detailing Paige’s accidental discharge.
The form, entitled “Report of Shooting,” recited that it was to be
submitted to the Firearms Training Unit and to IN.
4 Scully later gave a different copy of the 4:09 video to Kevin
Clark, a DEA special agent in the Tampa District Office.
5 Within a few months of the accidental discharge, a copy of the
4:09 video was sent via interoffice mail to the DEA firearms
training office in Miami.
6 The IN program analyst labeled the file “IN-GB-04-032S / SA
Lee Paige.” “IN” stands for Office of Inspections; “GB” is the
Orlando District Office designator; “04” are the last two digits of
the fiscal year; “032” is the assigned number of the case; and “S”
signifies that the investigation is a shooting. “SA” stands for
Special Agent.

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they also received the VHS Patterson made the night of the
shooting. One of the IN inspectors also had additional copies
of the Mini-DV made on digital video discs (DVDs) after
returning to IN headquarters. The DVDs were 23 minutes, 34
seconds in length and were included in the IN file. One of the
IN inspectors also had a copy of the Mini-DV made with the
accidental discharge portion excised; it was given to the
parent who had made the original video-recording of Paige’s
presentation.
In late April and early May, Paige’s accidental discharge
was reported in the press. The reports stated that a DEA
agent had shot himself in the leg but Paige was not identified
by name. A version of the 4:09 video began to appear on
internet websites and on the DEA’s internal e-mail system
(known as Firebird) at some point between April 2004 and
early March 2005. The DEA Office of Professional Review
(OPR) conducted a one year long investigation into the
release of the 4:09 video on the internet and on Firebird but
was unable to determine who released it.7
Paige filed suit against the DEA in April 2006, alleging
the disclosure of the 4:09 video violated the Privacy Act and
the FTCA. After completing discovery, Paige moved for
partial summary judgment and the DEA moved for summary
judgment on all claims. On December 29, 2010, the district
court granted summary judgment to the DEA. Paige v. U.S.
Drug Enforcement Admin., No. CV 1:06-644, 2010 WL
7758769 (D.D.C. Dec. 29, 2010). The court held that Paige
failed to establish the elements of his Privacy Act claim—
specifically, that the 4:09 video was retrieved from a system
of records and that the disclosure was intentional or willful.
7 During its investigation, OPR was able to recover the 4:09
videos sent to Derr, Bendekovic and the DEA firearms training
office in Miami.

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Id. at *2-*9. The court also concluded that Paige’s FTCA
claim failed because he did not establish all of the elements
under Florida law for the tort of invasion of privacy by public
disclosure of a private fact. Id. at *9-*11. Paige timely
appealed.
II. ANALYSIS
We review the district court’s grant of summary
judgment de novo. Maydak v. United States, 630 F.3d 166,
174 (D.C. Cir. 2010). “Summary judgment is appropriate
only where there is ‘no genuine issue as to any material fact’
and, viewing the evidence in the light most favorable to the
nonmoving party, ‘the moving party is entitled to a judgment
as a matter of law.’ ” Id. (quoting McCready v. Nicholson,
465 F.3d 1, 7 (D.C. Cir. 2006)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (summary judgment is
required “against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial”). A dispute is “genuine” if the evidence is
“such that a reasonable jury could return a verdict for the
nonmoving party.” McCready, 465 F.3d at 7 (internal
quotation marks omitted).
A. Privacy Act
Under the Privacy Act, “[an] individual may bring a civil
action against [any] agency” that “fails to comply with
any . . . provision of [the Privacy Act] . . . in such a way as to
have an adverse effect on [the] individual.” 5 U.S.C.
§ 552a(g)(1)(D). To state a claim for relief, a plaintiff must
establish that “(1) the agency violated a provision of the
[Privacy] Act, (2) the violation was ‘intentional or willful,’ 5
U.S.C. § 552a(g)(4), and (3) the violation had an ‘adverse
effect’ on the plaintiff, 5 U.S.C. § 552a(g)(1)(D).” Maydak,

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7
630 F.3d at 178. Based on the record before us, Paige’s
Privacy Act claim fails because it lacks the first element.
Subject to exceptions not relevant here, the Privacy Act
prohibits a federal agency8 from “disclos[ing] any record
which is contained in a system of records by any means of
communication to any person.” 5 U.S.C. § 552a(b). The
parties agree that the Mini-DV, the VHS, the 4:09 video and
the DVDs are all “record[s]”9
8 The Privacy Act applies to “any executive department, military
department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.” 5 U.S.C. § 552a(a)(1)
(incorporating definition of “agency” at 5 U.S.C. § 552(f)(1)).
and that the relevant “system of
records” is the IN file of the investigation of Paige’s
accidental discharge (designated IN-GB-04-032S / SA Lee
Paige). The parties also agree that the version of the video of
Paige’s accidental discharge that was disclosed on the internet
and on Firebird is the 4:09 video made at Gruden’s request
from the Mini-DV sometime during the week of April 12,
9 Under the Privacy Act, a “record” is:
any item, collection, or grouping of information about an
individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical
history, and criminal or employment history and that contains
his name, or the identifying number, symbol, or other
identifying particular assigned to the individual, such as a
finger or voice print or a photograph[.]
5 U.S.C. § 552a(a)(4); see also Albright v. United States, 631 F.2d
915, 920 (D.C. Cir. 1980) (“As long as [a] tape contains a means
of identifying an individual by picture or voice, it falls within the
definition of a ‘record’ under the Privacy Act.”).

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2004. The parties do not agree, however, that the 4:09 video
is a “record . . . contained in a system of records” under
section 552a(b).
The Privacy Act defines a “system of records” as:
a group of any records under the control of any
agency from which information is retrieved by the
name of the individual or by some identifying
number, symbol, or other identifying particular
assigned to the individual[.]
5 U.S.C. § 552a(a)(5). “A system of records exists only if the
information contained within the body of material is both
retrievable by personal identifier and actually retrieved by
personal identifier.” Maydak, 630 F.3d at 178 (emphasis in
original; internal quotation marks omitted). To violate section
552a(b), then, a disclosure generally must result from an
individual’s having “actually retrieved” the information from
the system of records in which it is contained. Armstrong v.
Geithner, 608 F.3d 854, 857 (D.C. Cir. 2010); see also Bartel
v. FAA, 725 F.2d 1403, 1408 (D.C. Cir. 1984) (“[Section
552a(b)] prohibits nonconsensual disclosure of any
information that has been retrieved from a protected record.”).
To begin with, Paige argues that the 4:09 video was
copied from a record contained in a system of records, that is,
the Mini-DV. But the Mini-DV was not a covered record at
the time the 4:09 video was copied from it because the
information on the Mini-DV was not retrievable by Paige’s
name or other personal identifier, to wit: it was neither labeled
nor filed by Paige’s name or other personal identifier, and
Paige has offered no evidence that information on the Mini-
DV “was actually retrieved by [a] personal identifier” while
in Gruden’s possession. Maydak, 630 F.3d at 178 (emphasis
in original; internal quotation marks omitted); see also Henke
v. U.S. Dep’t of Commerce, 83 F.3d 1453, 1460 (D.C. Cir.

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1996) (the definition of a “system of records” “suggest[s]
strongly that a group of records should generally not be
considered a system of records unless there is actual retrieval
of records keyed to individuals”).
Paige argues that an IN file, and therefore a “system of
records,” was created automatically when IN was notified of
Paige’s accidental discharge and that every item Gruden had
in his possession that related to Paige’s accidental
discharge—including the Mini-DV—was contained in this
“system of records.” But Henke makes clear that “retrieval
capability is not sufficient to create a system of records.” Id.
(emphasis added); see also Maydak, 630 F.3d at 178. Here,
no system of records existed from which information was in
fact retrieved by Paige’s name or other personal identifier
until the IN program analyst opened the IN file at IN
headquarters on April 16.
At some point between April 19 and April 21, Gruden
gave the Mini-DV to the IN inspectors who then placed the
Mini-DV in the IN file. Upon its inclusion in the IN file, the
Mini-DV was then contained in a system of records because
the IN file was both “retrievable by personal identifier and
actually retrieved by personal identifier.” Id. (emphasis in
original; internal quotation marks omitted). By then,
however, the 4:09 video had already been copied from the
Mini-DV. And disclosure of the 4:09 video was not
prohibited under the Privacy Act simply because the Mini-DV
subsequently became a “record which is contained in a system
of records.” 5 U.S.C. § 552a(b); see Armstrong, 608 F.3d at
859-60 (disclosure of information contained in record within
agency’s system of records not prohibited where retrieval
occurred before record became part of agency’s system of
records). Furthermore, there is no evidence that a copy of the
4:09 video was made from the Mini-DV after the latter was
placed in the IN file.

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Moreover, the record reflects that the 4:09 video itself
was not “contained in a system of records.” 5 U.S.C.
§ 552a(b). Only three versions of the accidental discharge
video were included in the IN file: the original Mini-DV, the
VHS and the DVDs created at the request of one of the IN
inspectors. Although the OPR inspector responsible for
investigating the disclosure of the accidental discharge video
stated in his deposition that Gruden told him the 4:09 video
was sent to IN, he later corrected his statement, declaring that
there was “no indication that a 4:09 version of the video
footage of S[pecial] A[gent] Lee Paige shooting himself was
ever placed in the Office of Inspections file IN-GB-04-32S.”
Decl. of Kent Reinke, Def.’s Mot. Summ. J., Ex. 42, Paige v.
United States Drug Enforcement Admin., No. CV 1:06-644 at
2 (D.D.C. May 13, 2008).
In addition, at no point was the 4:09 video retrievable or
retrieved by Paige’s name or other identifying particular, the
sine qua non of a “system of records.” Id. The 4:09 video
was unmarked and bore no notation indicating its contents.
Gruden used a file number for documents and items related to
Paige’s accidental discharge different from that assigned by
the IN program analyst and without Paige’s name or other
personal identifier.10
10 Gruden used file number “GFAO-04-9020” and titled the file
“Assaults/Threats/Shootings.” See Pl.’s Mot. Partial Summ. J., Ex.
1, Paige v. U.S. Drug Enforcement Admin., No. CV 01:06-644, at
17-22, 24-25 (D.D.C. May 16, 2008).
While Paige is correct that the
“assignment of a number to the IN file . . . [is] not a
requirement to the existence of a system of records,”
Appellant’s Br. at 26, he has offered no evidence that the file
Gruden maintained was retrievable or retrieved by Paige’s
name or other personal identifier.

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11
Paige’s reliance on Maydak v. United States, supra, is
misplaced. In that case, we concluded that a box containing
unmarked photographs of prisoners “may be” a system of
records because the records (i.e. the photographs) were in fact
retrieved by a personal identifier: the prisoner’s image.
Maydak, 630 F.3d at 178. Here, however, neither the 4:09
video nor the Mini-DV was retrieved by Paige’s name or
other personal identifier. Granted, the 4:09 video contains
personally identifying information—namely, Paige’s video
image—but it was neither “retrievable by” nor “actually
retrieved by” Paige’s image. Id. (emphasis in original;
internal quotation marks omitted); see also Henke, 83 F.3d at
1460. Paige’s reading would eviscerate the “system of
records” limitation, which applies to several Privacy Act
provisions, see 5 U.S.C. § 552a(b), (c), (d), (e) and (f), by
making any record containing personally identifying
information, regardless whether it is retrievable or actually
retrieved by that information, a covered record. See
McCready, 465 F.3d at 11 (agency only “held accountable
under Privacy Act provisions tied to a system of records
requirement for records it can easily retrieve consistent with
its day-to-day practice of information management—records
found within a ‘system of records’ ”).
Finally, Paige relies on our decision in Bartel v. FAA,
supra, in an attempt to avoid the retrieval requirement. In
Bartel, we created a narrow exception to the retrieval
requirement if an agency employee responsible for creating a
covered record later discloses information contained therein
based on his personal knowledge of the records and without
actually retrieving it from the agency’s system of records.
Bartel, 725 F.2d at 1407-11. We made clear in Bartel,
however, that the exception to the actual retrieval requirement
was tied to “the factual context of th[at] case,” id. at 1409
(emphasis in original), and we have subsequently declined to
extend the exception beyond the Bartel facts. See Armstrong,

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608 F.3d at 859-60. Gruden—who arguably “retrieved” the
4:09 video from the Mini-DV—did not “order[] the
investigation which resulted in the [creation of the 4:09
video], ma[k]e a putative determination of wrongdoing based
on the investigation, [or] disclose[] that putative
determination.” Bartel, 725 F.2d at 1411; see also
Armstrong, 608 F.3d at 860. Furthermore, there is no
evidence in the record before us that anyone involved in the
IN investigation at IN headquarters disclosed the 4:09 video,
thus making the exception inapplicable.
Although no violation of section 552a(b) occurred,11
11 Paige asserts violations of other Privacy Act provisions on
appeal, but he failed to raise them in the district court. “[W]hile
review of the grant of summary judgment is de novo, this court
reviews only those arguments that were made in the district court,
absent exceptional circumstances.” Potter v. District of Columbia,
558 F.3d 542, 547 (D.C. Cir. 2009). We find no exceptional
circumstances here. See Roosevelt v. E.I. Du Pont de Nemours &
Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (listing exceptional
circumstances).
the
DEA’s handling of the 4:09 video fell short of the Privacy
Act’s “design . . . to prevent . . . such actions as the
publicizing of information of a sensational or salacious nature
or of that detrimental to character or reputation.” Bartel, 725
F.2d at 1411 n.15 (internal quotation marks and citation
omitted). The widespread circulation of the accidental
discharge video demonstrates the need for every federal
agency to safeguard video records with extreme diligence in
this internet age of iPhones and YouTube with their
instantaneous and universal reach. The DEA’s treatment of
the video-recording—particularly the creation of so many
different versions and copies—undoubtedly increased the
likelihood of disclosure and, although not an abuse of a

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system of records, is far from a model of agency treatment of
private data.
B. Federal Tort Claims Act
Paige’s second claim is based on the FTCA which
provides that the United States is liable for the negligence of a
federal employee acting in the course of his employment to
the same extent that a “private person[] would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.” 28 U.S.C. § 1346(b)(1); see Hornbeck
Offshore Transp., LLC v. United States, 569 F.3d 506, 508
(D.C. Cir. 2009). The law of the local jurisdiction—in this
case, Florida—determines if an FTCA claim lies. See
Hornbeck Offshore Transp., 569 F.3d at 508 (“We look to the
law of the local jurisdiction . . . to determine whether there is
a local private party analog to [a plaintiff’s] claim[].”).
Florida law recognizes an invasion of privacy tort by public
disclosure of a private fact and the Florida Supreme Court—
looking to the Restatement (Second) of Torts (Restatement)
§ 652D (1977)—defines the elements of the tort as “[1] the
publication, [2] of private facts, [3] that are offensive, and [4]
are not of public concern.” Cape Publ’ns, Inc. v. Hitchner,
549 So. 2d 1374, 1377 (Fla. 1989). Paige satisfies neither the
“private facts” nor the “not of public concern” elements.12
The invasion of privacy tort by publication of a private
fact “applies only to publicity given to matters concerning the
private, as distinguished from the public, life of the
individual.” Restatement § 652D cmt. b. No liability attaches
“for giving further publicity to what [a] plaintiff himself
leaves open to the public eye.” Id.; see Spilfogel v. Fox
Broad. Co., 433 Fed App’x 724, 725-26 (11th Cir. 2011) (no
liability for publishing public facts about an individual).
12 Because Paige does not satisfy these elements, we do not
address whether he satisfies the others.

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14
The 4:09 video contained no private facts. The
accidental discharge occurred in a public place—the Callahan
Neighborhood Center13
13 The Callahan Neighborhood Center was open to the public at
the time Paige gave his presentation.
—and Paige knew he was being
video-recorded. Accordingly, the publication of the 4:09
video merely gave “further publicity to what [Paige] himself
le[ft] open to the public eye.” Restatement § 652D cmt. b; see
Spilfogel, 433 Fed App’x at 725-26 (publication of video of
plaintiff’s arrest on public street did not disclose private facts
because video did not relate to plaintiff’s family unit, health
or well-being); Heath v. Playboy Enters., Inc., 732 F. Supp.
1145, 1148-49 (S.D. Fla. 1990) (“[a] photograph taken in a
public place is not private” and publication thereof does not
disclose private facts); see also Restatement § 652D cmt. b
(listing as private facts “[s]exual relations,” “family quarrels,”
“many unpleasant or disgraceful or humiliating illnesses,”
“most intimate personal letters” and “most details of a man’s
life in his home”). Even though certain facts about the
accidental discharge were not publicized before the disclosure
of the 4:09 video—including Paige’s name, likeness and what
he said immediately before the accidental discharge—these
facts were nonetheless public because Paige’s presentation
was itself public. See Spilfogel, 433 Fed App’x at 725-26 (no
invasion of privacy by giving publicity to individual’s identity
and conduct occurring in public); Restatement § 652D cmt. b
(individual’s privacy not invaded “when the defendant gives
publicity to a[n] . . . activity in which the plaintiff is engaged
in dealing with the public”). Paige is likely correct that the
4:09 video depicts the accidental discharge more graphically
than a newspaper article, but the invasion of privacy tort
“focuses on the matter being published,” not the medium in
which is it published. Heath, 732 F. Supp. at 1149 n.9
(emphasis in original).

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Paige’s FTCA claim also fails because the accidental
discharge was a matter of public concern. “[T]he requirement
of lack of public concern is a formidable obstacle” and
matters of legitimate public concern are generally those
matters that are considered “newsworth[y].” Cape Publ’ns,
Inc., 549 So. 2d at 1377 (internal quotation marks omitted).
Paige was acting as a DEA special agent when he spoke at the
Callahan Community Center and his speech was therefore of
public concern. See e.g., Godbehere v. Phoenix Newspapers,
Inc., 783 P.2d 781, 789 (Ariz. 1989) (“[T]he public has a
legitimate interest in the manner in which law enforcement
officers perform their duties.”). That the accidental discharge
received media coverage even before the disclosure of the
4:09 video supports the conclusion that the occurrence was
one of public concern. See Cape Publ’ns, Inc. v. Bridges, 423
So. 2d 426, 427 (Fla. Dist. Ct. App. 1982) (“Within the scope
of legitimate public concern are matters customarily regarded
as ‘news.’ ”).14
14 The Florida Supreme Court has recognized that in determining
whether a matter is of public concern, the issue is whether the
matter “ ‘generally, as opposed to the specific identity contained
within it, involved a matter of [public concern].’ ” Cape Publ’ns,
Inc., 549 So. 2d at 1379 (quoting The Florida Star v. B.J.F., 491
U.S. 524, 536-37 (1989)). The identity of an individual involved in
a matter of public concern is also a matter of public concern unless
a private fact about him is involved. Compare Woodard v. Sunbeam
Television Corp., 616 So. 2d 501, 503 (Fla. Dist. Ct. App. 1993)
(identity of school bus driver with criminal record constituted
matter of public concern because “public had a right to know that
many school bus drivers had criminal records” and driver’s
criminal record was public fact) with Doe v. Univision Television
Grp., Inc., 717 So. 2d 63, 64 (Fla. Dist. Ct. App. 1998) (although
news story about problems with plastic surgeries performed abroad
was matter of public concern, identity of patient not matter of
public concern because patient’s involvement was private fact). As

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For the foregoing reasons, we affirm the district court’s
grant of summary judgment to the DEA.
So ordered.
discussed above, Paige’s role in the accidental discharge was a
public fact. Accordingly, the 4:09 video—including Paige’s
likeness—was a matter of public concern.

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