No. 15-14642-G
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
_______________________________________
JAMES ERIC MCDONOUGH, Appellant
v.
KATHERINE FERNANDEZ RUNDLE, Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
______________________________________
BRIEF FOR JAMES ERIC MCDONOUGH AS APPELLANT _______________________________________
James Eric McDonough, Pro Se Plaintiff/Appellant 32320 SW 199th Avenue Homestead, FL 33030 (571)245-5420 Telephone [email protected] Email
JAMES ERIC MCDONOUGH v. KATHERINE FERNANDEZ-RUNDLE CASE NO. 15-14642-G
AMENDED CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DICLOSURE STATEMENT
Pursuant to the Eleventh Circuit Rule 26.1-1, the undersigned certifies that
the Certificate of Interested Persons filed November 4, 2015 by Counsel for
Defendant/Appellee is correct.
There are no parent corporations or any publicly held companies that own 10
percent or more of the stock of the parties represented by James Eric McDonough.
Respectfully Submitted,
James Eric McDonough, Pro Se Plaintiff/Appellant 32320 SW 199th Avenue Homestead, FL 33030 (571)245-5420 Telephone [email protected] Email
JAMES ERIC MCDONOUGH v. KATHERINE FERNANDEZ-RUNDLE CASE NO. 15-14642-G
STATEMENT REGARDING ORAL ARGUMENT
Appellant James Eric McDonough does not request an oral argument.
TABLE OF CONTENTS
PAGE
JURISDICTIONAL STATEMENT..1
STATEMENT OF ISSUES OF APPEAL.2
CONCISE STATEMENT OF THE CASE...2
SUMMARY OF THE ARGUMENTS FOR APPEAL.6
ARGUMENTS FOR APPEAL.8
I. THE SPEECH FORUM DOCTRINE IS NOT THE PROPER STANDARD FOR REVIEWING THE FIRST AMENDMENT RIGHT TO RECORD.8
A. THE RIGHT TO RECORD IS CLAIMED, NOT THE RIGHT OF ACCESS8
B. THE PASSIVE SPEECH RIGHT TO GATHER INFORMATION IS DISTINCT FROM THE RIGHT TO ASSERTIVE SPEECH AND EXPRESSION..8
C. THE RIGHT TO RECORD IS NOT REGULATED BY FORUM TYPE...12 D. THREATS OF FUTURE ARREST FOR EXERCISING ONES FIRST AMENDMENT RIGHTS IS A PRIOR RESTRAINT...16
E. THE RIGHT TO RECORD POLICE ACTIVITY BEING SUBJECT ONLY TO REASONABLE TIME MANNER AND PLACE RESTRICTIONS IS WELL ESTABLISHED..19
F. APPLICATION OF FSS 934.03 TO MCDONOUGHS ACTION OF RECORDING IS UNCONSTITUTIONAL.20
II. THE RIGHT TO RECORD WOULD HAVE BEEN PRESENT EVEN UNDER THE SPEECH FORUM DOCTRINE22
A. NATURE OF MCDONOUGHS PRESENCE.22
B. TYPES OF PUBLIC FORA AND DESIGNATION FOR MEETING...23 C. FSS. 934.03 AS APPLIED FAILS TO LEAVE OPEN ADEQUATE ALTERNATE CHANNELS OF COMMUNICATION..........................................................................25
D. APPLICATION OF FSS 934.03 TO MCDONOUGHS ACTION OF RECORDING IS UNCONSTITUTIONAL.26
III. FLORIDA STATUTE 934.03 IS UNCONSTITUTIONAL AS APPLIED TO MCDONOUGHS RECORDINGS AS A MATTER OF LAW..28
A. THE FLORIDA WIRETAP ACT..28
B. APPLICATION OF FSS 934.03 TO MCDONOUGHS ACTION OF RECORDING IS UNCONSTITUTIONAL.30
C. APPLICABLE PRIVACY CASE LAW34
D. ANALYSIS OF PRIVACY EXPECTATION...37
CONCLUSION...39
A. CONSTITUTIONALITY OF FSS 934.03 WITH RESPECT TO THE FIRST AMENDMENT RIGHT TO GATHER INFORMATION.................................................................................39
B. FSS 934.03 DOES NOT COVER THE ACTIONS OF MCDONOUGH AND APPLICATION OF THE STATUTE IS UNCONSTITUTIONAL40
C. PRAYER FOR RELIEF.43
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF CITATIONS PAGE CITED CASES *ACLU v. Alvarez, 679 F.3d 583 (7th Cr. 2012).9, 11, 25, 33 ACLU v. Mote, 423 F.3d 438 (4th Cir. 2005)..23 American Communications Association v. Douds, 339 U.S. 382 (1950)16 *Bacon v. McKeithen, Civil no. 5:14-cv-37-RS-CJK (N. Fla.) (D.E.#33) (2014)32-33, 37, 40 Bass v. Richards, 308 F. 3d 1081 (10th Cir. 2002)..40 City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994)..25 *Commonwealth v. Henlen,522 Pa. 514, 564 A.2d 905 (1989)..........36 *Cornelius v. NAACP, 473 U.S. 788 (USSC 1985)......7, 9-10, 23-24, 26 *Dept. of Ag. & Con. Servs. v. Edwards, 654 So. 2d 628 (Fla. 1st DCA 1995)........................................................................7, 35, 37, 42 *FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007)..20 *Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991).....17 *Grayned v. City of Rockford, 408 U.S. 104 (1972)..........................................42-43 *Hill v. Houston, 482 U.S. 451 (1987)....10 *Katz v. US, 389 U.S. 347 (1967)...13, 29, 34, 38, 40 *Keating v. City of Miami, 598 F.3d 753 (11th Cir. 2010).19 *Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010).....9
McKay v. Federspiel, No. 14-CV-10252, 2014 WL 7013574, at *5 (E.D. Mich. Dec. 11, 2014) reconsideration denied, No. 14-CV-10252, 2015 WL 163563 (E.D. Mich. Jan. 13, 2015).....20-21 Mercado v. City of Orlando, 407 F. 3d 1152 (11th Cir. 2005)19 *Miranda v. Arizona, 384 U.S. 426.......21-22 Near v. Minnesota, 283 U.S. 697 (1931).17 Nebraska Press Assn. v Stuart, 427 U.S. 539 (1976)..16 Parkland Republican Club v. City of Parkland, 268 F. Supp. 2d 1349 (S.D. Fla. 2003)9-10 *Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)....6, 10, 12-14, 19-20, 39, 42 *Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005)...25 *Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000).....7, 40 CONSTITUTIONAL PROVISIONS First Amendment..passim Article 1, 9....20 Article 1, 10..20 STAUTES *FSS. 934.02(2)...28 *FSS. 934.03passim *FSS. 934.03(1)(a)..................29 *FSS. 934.10(2)(c)..34
OTHER AUTHORITIES *Blacks Law Dictionary 2nd Edition.....12, 22-33, 37 *Garcia v. Montgomery County, Civil No. 8:12-cv-03592-JFM , (D.E.#15)(2013)...11, 14, 18 Office of the State Attorney Eighth Judicial Circuit of Florida Law Enforcement Newsletter..42 *Sharp v. Baltimore City Police Department, Civil No. 1:11-cv-02888-BEL, (D.E.#24)(D. Md.)(2012)...14-15 *U.S. Department of Justice, JMS:TDM:RJO, DJ 207-35-10...15-16 2014 Florida Law Enforcement Handbook Miami-Dade County Edition..42
1
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
_______________________________________
No. 15-14642-G
JAMES ERIC MCDONOUGH,
Appellant
v.
KATHERINE FERNANDEZ-RUNDLE,
Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
______________________________________
BRIEF FOR JAMES ERIC MCDONOUGH AS APPELLANT _______________________________________
JURISDICTIONAL STATEMENT
This case arises from a deprivation of rights under color of law, 42 U.S.C.
1983. The district court had jurisdiction over this civil action pursuant to 28
U.S.C. 1331 and 1343(a)(3). McDonough appeals from a final decision of the
2
district court dated September 17, 2015. Appellant filed the notice of appeal on
October 15, 2015. This Courts jurisdiction arises under 28 U.S.C. 1291.
STATEMENT OF ISSUES OF APPEAL
Whether the lower court committed reversible error by applying the Speech
Forum Doctrine, made to regulate assertive speech, to the passive activity of
recording police officers, engaged in their official duties.
Whether the lower court then committed reversible error by not only
applying the Speech Forum Doctrine to the facts surrounding Appellants
recording, but also by determining the location was a non-public forum.
Whether the lower court committed reversible error by finding FSS. 934.03
constitutional, as applied to Appellants actions, when the statute explicitly
excludes the facts surrounding the recording and publications at issue.
CONCISE STATEMENT OF THE CASE
On February 7, 2014 Appellant (McDonough) had a meeting with Chief
Alexander Rolle (the Chief) of the Homestead Police Department (HPD). IA
Detective Antonio Aquino (the Detective) and Albert Livingston (Witness) sat in
on this meeting. The meeting was in the Chiefs office at his request and
invitation, and McDonough recorded this conversation openly by placing the
recorder in a visible space on the Chiefs desk. McDonough did not ask for or
receive the Chiefs consent to record the conversation. At the meeting
3
McDonough gave the Chief evidence to keep as part of the record, as well as filed
an internal affairs (IA) complaint against Officer Alejandro Murguido (Murguido).
Additionally, the Chief later contacted and informed Murguido, the primary
subject of the meeting and informed Murguidos supervisor, Sergeant Thomas
Tommy Surman, of the contents of the meeting before the meeting was even
over.
The purpose of the meeting was to file an IA complaint against Murguido
for his actions against McDonough. The IA complaint was filed by McDonough
on February 7, 2014, and was released as public record on July 14, 2014. The
evidence given to the Chief by McDonough during the meeting was absent.
McDonough then filed a public records request specifically for the evidence
given to the Chief. The request was returned as non-responsive to McDonough
giving the Chief any evidence at the meeting. Follow up contact confirmed from
the Chief that he was claiming McDonough gave him no documents or evidence
during the meeting.
McDonough then used sections of the recording from the February 7, 2014
meeting with the Chief to make a video, documenting the Chiefs destruction of
records, and laying out evidence of what McDonough thought was proof of several
counts of official misconduct. The video was published on November 20, 2014.
Two other videos using segments of the recording were published on the internet
4
on November 20 and 21 respectively. Also the full recording was released to the
media, the Florida Department of Law Enforcement (FDLE) in a criminal
complaint made against the Chief, as well as to the State in the instant case through
discovery.
After the videos were published and the Chief was made aware of the
videos, HPD filed or attempted to file complaints with the Miami-Dade State
Attorneys Office (MDSAO), the Miami-Dade Police Department (MDPD), and
the FDLE against McDonough. The investigation/complaint began as cyber-
stalking and transformed to wiretap violations.
While all agencies refused to prosecute McDonough for any of these alleged
crimes against police officers, the MDSAO sent McDonough a letter, dated
December 9, 2014, threatening possible felony prosecution for future recording of
police officers without their consent, period (D.E. #1, Exhibit). This threatening
letter impinged the First Amendment rights of McDonough.
On January 7, 2015 McDonough filed the complaint initiating this litigation
(D.E. #1), naming the Miami-Dade State Attorney, Katherine Fernandez-Rundle
(State) as the sole defendant, in her official capacity only; the action being solely
for declaratory and injunctive relief. The complaint requested declaratory relief in
the form of stating that the Statute was unconstitutional on its face, and
unconstitutional as applied; and the complaint asked for injunctive relief barring
5
the State from enforcing the statute at least as applied to the action of recording a
police officer in the performance of their duties.
The State responded on January 28, 2015 with a motion to dismiss (D.E.
#12). The court ruled on the motion on February 10, 2015 and granted dismissal as
to the statute being unconstitutional on its face, and denied the motion as to the
statute being unconstitutional as applied (D.E. #17).
On April 24, 2015 McDonough filed a motion for summary judgment (D.E.
#30). This motion was denied without prejudice until the discovery process could
be completed (D.E. #43).
On July 2, 2015 McDonough filed a renewed motion for summary judgment
(D.E. #47). On July 16, 2015 the State filed a response to McDonoughs renewed
motion for summary judgment (D.E. #53) and on July 20, 2015 a motion for
summary judgment (D.E. #55). On July 21, 2015 the Court struck both of those
pleadings (D.E. #57) and ordered that the response and motion for summary
judgment be consolidated into one document. On July 23, 2105 the Defendant
filed her own motion for summary judgment and response to the Plaintiffs
renewed motion for summary judgment (D.E. #58). McDonough filed a response
to the States motion for summary judgment and response on August 9, 2015 (D.E.
#63).
6
On September 17, 2015 the lower court entered an order denying
Appellants/Plaintiffs motion for summary judgment, and granting the
Appellees/Defendants motion for summary judgment (D.E.# 69-70).
SUMMARY OF THE ARGUMENTS FOR APPEAL
The court failed to give proper weight to the controlling law Smith v.
Cumming, 212 F.3d 1332 (11th Cir. 2000). In doing such the court reversibly
erred in applying the Speech Forum Doctrine to a distinct type of passive speech;
where its function is to balance the right of making assertive speech versus
allowing government to reasonably restrict activities which may be disruptive
to and/or incompatible with the property or forum. The clearly established First
Amendment right to passively record police officers on public property in the
performance of their official duties is subject only to reasonable time, manner and
place restrictions. This passive right is not subject to the Speech Forum Doctrine.
The lower court also erroneously conflated McDonoughs claim of a right to
record and gather information, as a claim of right to access. Therefore, it must
hold that FSS. 934.03 is unconstitutional as applied to McDonoughs recording.
The court failed to give proper weight to the facts of the case, and reversibly
erred by concluding that the Chiefs office, for purposes of a meeting about police
business, was a non-public forum. The Chief invited Appellant into his office for
the explicit purpose of filing a complaint against an officer, i.e. making assertive
7
speech. Neither the invited assertive speech activity, nor the passive act of
recording was disruptive to the operations of the HPD or incompatible with its
designated function. The lower court failed to appreciate the significance of an
invitation to make assertive speech activity on government property in determining
forum type, Cornelius v. NAACP, 473 U.S. 788, 802(1985). Therefore, it must
hold that FSS. 934.03 is unconstitutional as applied to McDonoughs recording.
The court failed to recognize that, based on the specific facts of the case,
FSS. 934.03 does not apply. The reasons include there being no expectation of
privacy (i.e. explicitly excluded from statute), and the fact that any inadvertently
captured conversations were unintentional (i.e. intentional interception is the first
required element of the criminal statute). It has been held that police officers
acting in the performance of the official duties have no privacy privilege in their
communications, Dept. of Ag. & Con. Servs. v. Edwards, 654 So. 2d 628 (Fla. 1st
DCA 1995). As the statute does not apply to the recording at hand, and there is a
First Amendment right to record police activity, any retaliation for exercising of
ones First Amendment rights, including threat of arrest, violates the First
Amendment, Worrell v. Henry, 219 F.3d 1197 (10th Cir. 2000). Therefore, it must
hold that FSS. 934.03 is unconstitutional as applied to McDonoughs recording.
8
ARGUMENTS FOR APPEAL
I. THE SPEECH FORUM DOCTRINE IS NOT THE PROPER STANDARD FOR REVIEWING THE FIRST AMENDMENT RIGHT TO RECORD
A. THE RIGHT TO RECORD IS CLAIMED, NOT THE RIGHT OF ACCESS The lower court committed reversible error by holding that McDonoughs
claim was one of access to public property to make assertive speech activity.1
McDonough was not trespassing, which the lower court admitted,2 showing the
right of access is not at issue, for access was granted by the Chief through
invitation for McDonough to make a complaint against one of his officers, i.e.
petition the government for redress, which is assertive speech activity.
McDonough is claiming the passive speech right to record police activity,
when having a conversation about public business with an officer who is acting in
the performance of their official duties, where one has a lawful right to be present,
and is not otherwise in violation of the law.
B. THE PASSIVE SPEECH RIGHT TO GATHER INFORMATION IS DISTINCT FROM THE RIGHT TO ASSERTIVE SPEECH AND EXPRESSION
1 (D.E. #69, p. 9) It is undisputed that [McDonough] seeks access to record in the police station.(emphasis) 2 (D.E. #17, p. 5) [C]learly an individuals lawful presence in a government office is distinguishable from a burglary.
9
There are different types of speech activities protected under the First
Amendment. This includes assertive speech (i.e. speaking, protesting, picketing,
broadcasting, etc.), and also includes passive speech (i.e. gathering information,
recording, wearing articles of clothing or accessories with a political message,
etc.). Recording as a passive activity is a wholly different type of speech than
assertive speech or expression.
Distinctions between assertive speech and passive recording have been seen
in this and other circuits as well.
We analyzed that case as one involving the First Amendment right to access information, and declined to apply the speech forum doctrine because it "traditionallyapplies to `expressive' or `speech' activity," and the alleged constitutional violation "consisted of aright to receive and record information," not "speech or other expressive activity." Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010). Such a distinction was also seen in the 7th Circuit, which held that the act of
recording is protected by the First Amendment.
The act of making an audio or audiovisual recording is necessarily included within the First Amendments guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected, as the States Attorney insists...This is a straightforward application of the principle that [l]aws enacted to control or suppress speech may operate at different points in the speech process Citizens United v. FEC, 130 S. Ct. 876, 896 (2010)...Put differently, the eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instrument of communication.
ACLU v. Alvarez, 679 F.3d 583, 594-595 (7th Cr. 2012).
10
Assertive speech activities are governed by the Speech Forum Doctrine.
Where after it is determined that an action may be protected, the forum type is
determined, and the appropriate scrutiny standard is applied, Cornelius v. NAACP,
473 U.S. 788, 797 (1985). See also Parkland Republican Club v. City of Parkland,
268 F. Supp. 2d 1349, 1352-53 (S.D. Fla. 2003) (summarizing three-step analysis).
Certain public property is often reasonably found to be a non-public forum,
as assertive speech activities could interfere with, disrupt, and/or be incompatible
with government functions. However, the passive speech action of gathering
information about police activity through recording has been found to be governed
only by intermediate scrutiny. See, Smith v. Cumming, 212 F.3d 1332, 1333 (11th
Cir. 2000) (holding it to be a First Amendment right, subject to reasonable time,
manner and place restrictions, to photograph or videotape police conduct).
McDonough wanted to be capable of opposing or questioning police action
if, for among other reasons, there was any misconduct. Without an audio
recording, a citizens word would not measure up to the Chiefs simply because of
his employment and rank. Retaliation under the circumstances by arresting or
threatening arrest violates principles of the First Amendment, and serves to chill
not only the right to record, but may also chill the right to petition for redress.
The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state. Hill v. Houston, 482 U.S. 451, 463-464 (1987).
11
The passive speech right to record police activity is greater than the right to
use government property to make assertive speech. However, where the right to
make assertive speech is present, as it was during the meeting, the passive speech
right to gather information should attach by default, barring presence of a
reasonable time, manner or place restriction against such recording.
The protection offered by the First Amendment is not diminished when that speech is communicated through a camera lens or recording deviceCourts have long held that recordings made by private citizens of police conduct or other items of public interest are entitled to First Amendment protection.
Garcia v. Montgomery County, Civil No. 8:12-cv-03592-JFM, (DE # 15)(2013), p. 6.
The passive speech right to unobtrusively record does not interfere with
police department activity when done by those lawfully present, any more than
wearing a t-shirt proclaiming a political message would interfere. However, the
rights to assertive speech activity may be disruptive to police department activity
even when done by those lawfully present. It is this latter type of assertive speech
activity which the Speech Forum Doctrine is applied to, not the former passive
speech right of recording. McDonoughs passive act of recording did not interfere
with or disrupt any police activity. Further, passively recording has not been
shown to be incompatible with the functions of the police department, and police
themselves often times record such conversations.
The ACLUs proposed audio recording will be otherwise lawfulthat is, not disruptive of public order or safety, and carried out by people who have a
12
legal right to be in a particular public location and to watch and listen to what is going on around them. ACLU v. Alvarez, 679 F.3d 583, 606 (7th Cr. 2012).
The threat of arrest only came in retaliation to McDonough's right to
publish, there was no threat of arrest at the time of recording or afterwards, until
McDonough published segments of the recording, showing retaliation against the
First Amendment right to press, as well as speech. Such a fact pattern also
demonstrates that McDonough's passive act of recording in no way interfered with
or was it disruptive to any police activity.
C. THE RIGHT TO RECORD IS NOT REGULATED BY FORUM TYPE The broad binding principle in this Circuit is that: "The First Amendment
protects the right to gather information about what public officials do on public
property, and specifically, a right to record matters of public interest" Smith v.
Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). In the case at bar, the Chief of
Police is a public official, the police department is public property,3 and police
conduct is a matter of public interest. Therefore, the right to record would have
been present.
3 Public property: Any property that is not owned by a private individual or a company. It belongs to the public at large and not to any one person. It covers premises and facilities that are owned by the government or a community. Blacks Law Dictionary 2nd Edition
13
The Court in Smith already decided the standard for recording police
conduct is intermediate scrutiny, i.e. limited to reasonable time, manner, or place
restrictions. Importantly, Smith holds the right to gather information attaches to
public property, and does not address forum type, for it is irrelevant to recording.
The lower court appears to conflate public places with public forums,4 yet
the two are not synonymous. Indeed public property and/or public places are not
mutually exclusive of non-public forums, nor are public places or public property
synonymous with a public forum. The lower court argues, ingress and egress
walkways to a post office building are nonpublic fora (D.E. #69, p. 9). While
true, clearly a post office as well as the ingress and egress walkways are still a
public place, and it is by definition public property. A public place can be a
traditional public forum, a limited public forum or a non-public forum. In many of
these combinations there may be reasonable restrictions against recording; in the
case at bar there were none.
Further, since the Speech Forum Doctrine is not the proper standard, there is
a right to record in places that are considered to be non-public fora, subject to
intermediate scrutiny. Such places would include the ingress and egress walkways
to a post office, the side of the highway, and the lobby of a police department or
other public buildings where the public is free to come and go, as there would be
4 (D.E. #69, p. 15) Plaintiffs recording notin a public place
14
no expectation of privacy in conversations made loud enough that others could
reasonably overhear, Katz v. US, 389 U.S. 347 (1967).
Applying the Speech Forum Doctrine in places such as the ingress and
egress walkways to a post office would require only a rational basis standard of
review under the speech forum doctrine. However, the courts applied an
intermediate scrutiny standard throughout Smith.
Further still, the right to record applies even when the right to make assertive
speech activity does not. For example anyone present in a public meeting can
record audio of the meeting, even though they may not be allowed to speak or
make other assertive activity. This right attaches unless there is a reasonable time,
manner or place restriction in place prohibiting such recording.
Even the U.S. Department of Justice (DOJ) agreed and recognized a First
Amendment right to record police activity subject only to reasonable time, manner
and place restrictions, and wrote Statements of Interest on behalf of the U.S.
Government in two cases Sharp v. Baltimore City Police Department, Civil No.
1:11-cv-02888-BEL, (DE # 24)(D. Md.)(2012) and Garcia v. Montgomery County,
Civil No. 8:12-cv-03592-JFM, (DE # 15)(2013).
Federal courts have recognized that recording devices are a form of speech through which private citizens may gather and disseminate information of public concern, including the conduct of law enforcement officers. The First Circuit recently held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that [b]asic First Amendment principles and federal case law unambiguously establish that private citizens possess a constitutionally protected right to
15
videotape police carrying out their duties. Id. at 82. See Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the First Amendment right subject to reasonable time, manner and place restrictions to photograph or videotape police conduct.); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing the First Amendment right to film matters of public interest). Robinson v. Fetterman, 378 F. Supp. 2d 534, 542 (E.D. Pa. 2005) (finding no doubt that the free speech clause of the Constitution protected plaintiff who videotaped officers because [v]ideotaping is a legitimate means of gathering information for public dissemination and can often provide cogent evidence). The right to record police activity is limited only by reasonable time, place, and manner restrictions. Glik, 655 F.3d at 84There is no binding precedent to the contrary. The reach of the First Amendments protection extends beyond the right to gather such information it also prohibits government officials from punish[ing] the dissemination of information relating to alleged governmental misconduct. Id. at 1035; see Butterworth v. Smith, 494 U.S. 624, 632 (1990) (speech relating to alleged governmental misconduct has traditionally been recognized as lying at the core of the First Amendment). The right to engage in and disseminate speech relating to government misconduct is not diminished when the government actors are police officers. See City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) ([T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.) Sharp v. Baltimore City Police Department, Civil No. 1:11-cv-02888-BEL, (D. Md.) (DE #24) (2012), p. 5-6. The DOJ also wrote a letter in the Sharp Case. In this letter they reaffirmed their position above, and additionally opined: The right to [g]ather[] information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting the free discussion of governmental affairs. Glik, 655 F.3d at 82 (citing Mills v. Alabama, 384 U.S. 214, 218 (1966)). The application of this right to the conduct of law enforcement officers is critically important because officers are granted substantial discretion that may be used to deprive individuals of their liberties. Id.; Gentile v. State Bar of Nev., 501U.S. 1030, 1035-36 (1991) (Public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption.).
16
U.S. Department of Justice, JMS:TDM:RJO, DJ 207-35-10, p. 3.
See in addition Pomykacz v. Borough of West Wildwood, 438 F.Supp.2d 504, 513 (D. N.J. 2006) (individual was engaging in political activism protected by the First Amendment when she photographed police officer while officer was in police headquarters and in municipal building)
U.S. Department of Justice, JMS:TDM:RJO, DJ 207-35-10, page 4.
It is not only the right, but a civic duty, to monitor the actions of public
officials, such as the police. See, American Communications Association v.
Douds, 339 U.S. 382, 442-43 (1950) ([I]t is the function of the citizen to keep the
government from falling into error.). This function cannot be efficiently performed
if the right to record government activity is unduly restricted.
It is to be noted that McDonough was reporting allegations of police
misconduct,5 and assumed the Chief may have been part of this misconduct.
D. THREATS OF FUTURE ARREST FOR EXERCISING ONES FIRST AMENDMENT RIGHTS IS A PRIOR RESTRAINT
For the Chief, HPD or the State to retaliate and threaten McDonough for his
constitutionally protected right to gather information creates a prior restraint. The
Supreme Court has held prior restraint as the most serious and the least tolerable
5 (D.E. #58, Exhibit B, p. 9-10) McDonough left a message for the Detective in January, 2013, attempting to file a complaint against Murguido. A month later on February 15, 2013 Murguido filed a false criminal complaint against McDonough, and on February 28, 2013 Murguido filed a false stalking injunction against McDonough, swearing under oath that McDonough had contacted IA, and that he was advised to file a complaint against McDonough. A month later on March 19, 2013 the Detective finally returned McDonoughs January, 2013 message.
17
infringement on First Amendment rights. See, Nebraska Press Assn. v Stuart,
427 U.S. 539 (1976).
For decades, the Supreme Court has recognized that government action
intended to prevent the dissemination of information critical of public officials,
including police officers, constitutes an invalid prior restraint on the exercise of
First Amendment rights. See, Near v. Minnesota, 283 U.S. 697 (1931) (finding that
statute prohibiting the publication of articles critical of law enforcement officers
was an unlawful prior restraint on First Amendment rights).
There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment. Nevada seeks to punish the dissemination of information relating to alleged governmental misconduct, which only last Term we described as "speech which has traditionally been recognized as lying at the core of the First Amendment." In Sheppard v. Maxwell we reminded that "[t]he press . . . guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Public awareness and criticism have even greater importance where, as here, they concern allegations of police corruption, ("commentary on the fact that there is strong evidence implicating a government official in criminal activity goes to the very core of matters of public concern"), or where, as is also the present circumstance, the criticism questions the judgment of an elected public prosecutor. Our system grants prosecutors vast discretion at all stages of the criminal process. The public has an interest in its responsible exercise.
Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (internal citations omitted).
18
The reach of the First Amendments protection extends beyond the right to gather information critical of public officials it also prohibits government officials from punish[ing] the dissemination of information relating to alleged governmental misconduct. Gentile, 501 U.S. at 1034-35 (Kennedy, J.). When police officers seize materials in order to suppress the distribution of information critical of their actions, the seizure clearly contravene[s] the most elemental tenets of First Amendment law. Rossignol v. Voorhaar, 316 F.3d 516, 521 (4th Cir. 2003) (deputies violated First Amendment by suppressing distribution of newspaper critical of Sheriffs department). For decades, the Supreme Court has recognized that government action intended to prevent the dissemination of information critical of public officials, including police officers, constitutes an invalid prior restraint on the exercise of First Amendment rights. See, e.g., Near v. Minnesota, 283 U.S. 697 (1931) (finding that statute prohibiting the publication of articles critical of law enforcement officers was an unlawful prior restraint on First Amendment rights); Rossignol, 316 F.3d at 522 (By intentionally suppress[ing] the dissemination of plaintiffs political ideas on the basis of their viewpoint . . . before the critical commentary ever reached the eyes of readers, Defendants conduct met the classic definition of a prior restraint.). That MCPD officers seized a camera and video card and not a publication does not diminish the significance of the First Amendment violation. Seizure of [a] camera and film is at least as effective a prior restraintif not more soas . . . an injunction against publication. Channel 10, Inc. v. Gunnarson, 337 F. Supp. 634, 637 (D. Minn. 1972); see also Robinson v. Fetterman, 378 F. Supp. 2d 534, 541 (E.D. Pa. 2005) ([T]o the extent that the troopers were restraining Robinson from making any future videotapes and from publicizing or publishing what he had filmed, the defendants conduct clearly amounted to an unlawful prior restraint upon his protected speech.).
Garcia v. Montgomery County, Civil No. 8:12-cv-03592-JFM, (DE # 15)(2013), p. 7-8.
While McDonoughs device and recording were never seized, threat of
felony prosecution is effective at sufficiently chilling ones First Amendment right
to gather information of public interest, and publish that information, and creates a
19
prior restraint against further gathering of information, or further publishing of
information that has already been gathered.
E. THE RIGHT TO RECORD POLICE ACTIVITY BEING SUBJECT ONLY TO REASONABLE TIME MANNER AND PLACE RESTRICTIONS IS WELL ESTABLISHED To demonstrate that a constitutional right is clearly established, a plaintiff
must demonstrate (a) that a materially similar case has already been decided,
giving notice to the police; (b) that a broader, clearly established principle should
control the novel facts in this situation; or (c) this case fits within the exception of
conduct which so obviously violates the constitution that prior case law is
unnecessary. Keating v. City of Miami, 598 F.3d 753, 766 (11th Cir. 2010),
(citing Mercado v. City of Orlando, 407 F. 3d 1152, 1159 (11th Cir. 2005).
Smith held that the right to record police activity is subject only to
reasonable time, manner and place restrictions. The lower court cited Smith, and
noted the State Attorneys cited cases fail to indicate barring the recording of a
public official on public property discussing official business is a reasonable
restriction (D.E. #17, p. 5). The court later misconstrued the conversation
between the Chief and McDonough as a personal meeting in a private office (D.E.
#69, P. 11, footnote), however, the meeting was of a public not personal nature,
and the Chiefs office is public property, although available for his private use.
20
At a minimum the broad clearly established principle of Smith should
control the facts of the situation at hand.
When faced with a close call, the courts have held the First Amendment
requires [courts] to err on the side of protecting political speech rather than
suppressing it. FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449, 457 (2007).
However, based upon the totality of the facts of the case, there is no close call.
F. APPLICATION OF FSS. 934.03 TO MCDONOUGHS ACTION OF RECORDING IS UNCONSTITUTIONAL The State and lower court have both failed to cite a single precedential case
that is contrary to the binding principles of Smith. McDonoughs position is that
the right to record police activity is held to intermediate scrutiny regardless of
forum type, and that there were no reasonable restrictions barring the recording6
without consent in the police department, at the time of recording. In comparison,
other police departments such as Miami-Dade Police Department have restrictions
against recording while giving an IA complaint, including a written policy and
notice of policy clearly posted. However, for HPD to attempt to impose a
restriction against recording after the fact, which restriction was not present at the
6 HPD does not have any policies against recording. A blanket prohibition against recording police activity without consent under FSS. 934.03 is not a reasonable one.
21
time of the recording, and apply it to McDonoughs actions violates the ex post
facto provisions of Article 1, 9 and Article 1, 10 the U.S. Constitution.
The State argued that banning recordings in a police department is fully
consistent with prohibiting recordings in other buildings such as courthouses citing
McKay v. Federspiel, No. 14-CV-10252, 2014 WL 7013574, at *5 (E.D. Mich.
Dec. 11, 2014) reconsideration denied, No. 14-CV-10252, 2015 WL 163563 (E.D.
Mich. Jan. 13, 2015):
prohibiting cell phones and other electronic devices will reduce the instances of ringtones interrupting judicial proceedings and make it impossible for jurors to conduct online research in the courtroom. And prohibiting the recording of jurors and witnesses will alleviate any concerns about witness and juror intimidation. Accordingly, the Electronics Ban Order does not violate McKay's First Amendment rights. McKay v. Federspiel, at *6 The courthouse regulation can be considered a valid time, place and manner
restriction. The disruptions that occur in a courthouse provide a reason for the
court to uphold the restrictions. Those same reasons do not apply to the workings
of a police department station house. Furthermore, the regulation in McKay only
banned recordings in a courthouse. Other public buildings were not subject to the
same restrictions. Since FSS. 934.03 as applied bans all recordings without
consent at any time, in any place, it is not a valid time, manner and place
restriction. The courthouse analogy is not applicable to the case at bar. In
22
comparison to the instant case, the courthouse had enacted a reasonable restriction
present, where HPD had not.
Therefore, FSS. 934.03 is unconstitutional as applied. See, Miranda v.
Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603 (Where rights secured by the
Constitution are involved, there can be no 'rule making' or legislation which would
abrogate them.).
II. THE RIGHT TO RECORD WOULD HAVE BEEN PRESENT EVEN UNDER THE SPEECH FORUM DOCTRINE
A. NATURE OF MCDONOUGHS PRESENCE
In the alternative to the argument above, if the speech forum doctrine was
the appropriate initial standard to use, the lower court committed reversible error
by construing the Chiefs office as a non-public forum for purposes of the meeting,
based on the facts of the case.
The Chief called and invited McDonough to his office for a meeting. Then
the Chief invited McDonough again to enter his office, at the start of the meeting.7
The State argued McDonough was not invited to the Chiefs office (D.E.
#58, Attachment 1, p. 2-3), and the lower court held whether McDonough was
invited is disputed (D.E. #69, p. 11, footnote). However, such an interpretation
7 (D.E. #58, Exhibit B, p. 3) The Chief walked up to McDonough and twice stated come on in. Note: Wrongly attributed to McDonough, in transcript.
23
ignores the plain and ordinary meaning of the word(s) invite/invitation, as well as
its legal definition:
Invitation: is the act of one who solicits or incites others to enter upon, remain in, or make use of, his property or structures thereon, or who so arranges the property or the means of access to it or of transit over it as to induce the reasonable belief that he expects and intends that others shall come upon it or pass over it. See Sweeney v. Old Colony & N. R. Co., 10 Allen (Mass.) 373, S7 Am. Dec. 044; Wilson v. New York, N. H. & II. R. Co., 18 R. I. 401, 29 Atl. 258; Wright v. Boston & A. R. Co., 142 Mass. 300, 7 N.
Blacks Law Dictionary 2nd Edition The Chief solicited and/or incited McDonough and the Witness to enter
upon and make use of his office. Therefore, the Chiefs request for McDonough to
enter the property, and his actions in having the HPD allow McDonough access
onto the property was an invitation by strict definition.
The incorrect use of the term invite/invitation is material to the courts
ruling that the Chiefs office was a non-public forum for purposes of the meeting.
B. TYPES OF PUBLIC FORA AND DESIGNATION FOR MEETING
The Chief invited McDonough into his office to make assertive speech, i.e.
petition for redress. This court must analyze what the appropriate type of forum
the Chiefs office was for the purposes of the meeting.
The Police Department is generally a non-public forum. However, as
applied to the facts of the case, the lower court was incorrect in the assertion that
the Chiefs office for the purposes of the meeting was not a limited public forum.
24
A limited public forum is one that is not traditionally public, but the government
has purposefully opened to the public, or some segment of the public, for
expressive activity, ACLU v. Mote, 423 F.3d 438, 443, 444 (4th Cir. 2005).
It is noted that the lower court cited Cornelius (D.E. #69, p.11, footnote), but
did not properly apply it to the facts. First, Cornelius is not directly relevant, as it
was directed at access, where here, only the right to gather information and record
is being claimed. Second, McDonough desired to exercise his right to gather
information while petitioning for redress, which is surely different than a non-
profit organization desiring access to government facilities to solicit donations
from government employees. Third, the police department generally creates a
designated public forum for purposes of IA complaints, and assertive speech
activity such as petitioning government for redress is not incompatible with the
activities of a police department. Further, these meetings/interviews are often
recorded; demonstrating recording is not incompatible with such activity.
The line between limited public forums and nonpublic forums "may blur at the edges," and is really more in the nature of a continuum than a definite demarcation. Cf. United States Postal Service v. Greenburgh Civic Assns., 453 U.S. at 453 U. S. 132 (the line between defining the forum and regulating the time, place, and manner of expressive activity in the forum blurs at the edges). The government may invite speakers to a nonpublic forum to an extent that the forum comes to be a limited public forum because it becomes obvious that some types of expressive activity are not incompatible with the forum. Cornelius v. NAACP, 473 U.S. 788, 802.
25
The Chief admitted that he knew McDonough wanted to meet with him to
file a complaint (D.E. #58, Exhibit A, para. 5). Thus, it is rightly argued that the
Chief took purposeful action, inviting McDonough and the Witness, who are part
of the public, to come to his office and make public speech or debate, i.e. to
petition for a redress of grievances by filing an official complaint. Further, the
filing of a complaint against a police officer is not only, not incompatible with the
forum, but is actually part of the routine business of the police department.
Therefore, as the Chief deliberately invited McDonough to make assertive
speech activity, for the purposes of the meeting his office would have been a
limited public forum, and subject to intermediate scrutiny.
C. FSS. 934.03 AS APPLIED FAILS TO LEAVE OPEN ADEQUATE ALTERNATE CHANNELS OF COMMUNICATION
If FSS. 934.03 were interpreted to forbid recording police officers in the
performance of their duties on public property it would be a time, place, and
manner restriction on constitutionally protected speech. To be constitutional the
State would need to show that it does not restrict speech substantially more than
necessary to further a legitimate government interest, and it leave[s] open
adequate alternative channels of communication. Solantic, LLC v. City of
Neptune Beach, 410 F.3d 1250, 1258 (11th Cir. 2005).
[A]udio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly
26
unlikely that other methods could be considered reasonably adequate substitutes.
ACLU v. Alvarez, 679 F.3d 583, 607 (7th Cr. 2012)
The Supreme Court has voiced particular concern with laws that foreclose
an entire medium of expression. City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994).
Additionally, the application of FSS. 934.03 to prohibit recording police officers
without obtaining their consent does not serve a legitimate government interest.
D. APPLICATION OF FSS. 934.03 TO MCDONOUGHS ACTION OF RECORDING IS UNCONSTITUTIONAL In the instant case if it is to be argued that the Police Department is generally
not compatible with assertive speech activity, and the government is not required
to allow assertive speech activity, then it should be reiterated that the Chief
specifically invited McDonough into his office to petition for the redress of
grievances, which is assertive speech activity. Further, the redress of grievances
invited by the Chief furthers the business of the Police Department, and was in no
way disruptive to, or incompatible with, the activities of the Police Department.
Cornelius articulates that the line between limited public forums and non-
public forums blurs at the edges and there is no definite demarcation. In the case
at bar, the Chief invited McDonough to a non-public forum to make assertive
speech activity. His actions created a limited-public forum for the purpose of the
meeting. The Chief made his office a limited public forum, subject only to
reasonable time, manner and place restrictions, i.e. intermediate scrutiny.
27
It has been shown that different forum types are not mutually exclusive, and
the nature of the assertive speech activity was compatible with the normal uses of
the Police Department. Further, the Chief not only allowed such assertive speech
activity, but actively encouraged it, and such activity is part of the routine
operations of a police department. It must follow if McDonough had a First
Amendment right to make such assertive speech activities, then the First
Amendment speech right to passively record such activity would necessarily
attach, as such passive speech activity does not disrupt, nor is it incompatible with
the forum.
Further, a precedent of this magnitude creates a position where citizens
would be discouraged from exercising their First Amendment rights. By not
allowing citizens to record their conversations with police about police business, a
citizen could become fearful of retaliation and false accusations, thus chilling the
First Amendment right to petition the government for redress of grievances.
Generating evidence of these meetings via recording verifies the conversation that
occurs between police officers and aggrieved citizens, preventing false
misconstructions or accusations from either side.
Since the State and lower court failed to recognize the Chiefs office as a
limited-public forum for purposes of the meeting, and there were no reasonable
28
restrictions present against recording, FSS. 934.03, as applied to McDonoughs
actions, is unconstitutional.
III. FLORIDA STATUTE 934.03 IS UNCONSTITUTIONAL AS APPLIED TO MCDONOUGHS RECORDINGS AS A MATTER OF LAW
A. THE FLORIDA WIRETAP ACT
The Florida Wiretap Act was passed to grant a greater degree of
conversational privacy than available through Federal law. While the statute
operates constitutionally in protecting the conversational privacy of truly private
conversations, as applied is unconstitutional as it encroaches on conversations in
which no privacy expectations are present, and it fails to serve a legitimate
government interest.
First, FSS. 934.02(2) defines oral communication, and that it excludes
conversations having no expectation of privacy.
FSS. 934.02; Definitions.As used in this chapter: (2) Oral communication means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.
29
If there is no expectation of privacy, there is no oral communication by definition.
If there was no oral communication, then it could not have been possible to
intercept an oral communication. Police officers as public officials performing the
publics business have no reasonable privacy interests, superior to the First
Amendment right to gather information about government activity and matters of
public interest. The recording of the Chief and the Detective was intentional, but
there was no expectation of privacy under the facts of the case, and therefore FSS.
934.03 does not apply here.
Second, recording activity where an incidental outside conversation is
unintentionally intercepted falls outside of the scope of the statute. FSS.
934.03(1)(a) does not encompass such activity as unintentional interception.
FSS. 934.03; Interception and disclosure of wire, oral, or electronic communications prohibited. (1) Except as otherwise specifically provided in this chapter, any person who: (a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication; (emphasis)
If an interception is not done intentionally, then FSS. 934.03 does not apply, as
intentional interception is the first required element under the statute. With respect
to the conversations McDonough inadvertently recorded (i.e. the three separate
female voices and the Chiefs phone call with his wife), they do not apply to FSS.
934.03. The conversations that were inadvertently captured were not intentionally
30
intercepted, and therefore are not covered under the statute. Additionally, when
speaking loud enough that others lawfully present may reasonably be expected to
overhear the conversation, as was the case for the unintentionally intercepted
conversations, there is no expectation of privacy, as the communications were
knowingly exposed, see Katz v US, 389 U.S. 347 (1967).
Therefore, the application of FSS. 934.03 to the actions of McDonough is
unconstitutional, as the statute does not cover McDonoughs actions of recording
under the facts, and he has a First Amendment right to gather and record
information about what police officers do on public property.
B. APPLICATION OF FSS. 934.03 TO MCDONOUGHS ACTION OF RECORDING IS UNCONSTITUTIONAL The State in its threatening letter to McDonough dated December 9, 2014
(D.E. #1, Exhibit), claimed McDonoughs recording of police officers in the
meeting at HPD on February 7, 2014 was unlawful under FSS. 934.03, without the
consent of all parties recorded, ignoring the lack of any reasonable expectation of
privacy. The cited statute, however, cannot be constitutionally applied to
McDonoughs actions in this case.
Generally a police officer performing his public duties has no expectation of
privacy in those actions. Therefore, recording police officers in the performance of
their official duties is constitutionally protected, so long as all parties are lawfully
31
present. The lower court committed reversible error because where there is no
expectation of privacy, conversations are not covered under the statute.
The lower court found the unintentionally recorded conversations are further
evidence of McDonough violating FSS. 934.03, opining, [t]hus, the State
Attorneys arguments based on the risk of capturing conversations beyond the
intended conversation, are rightly considered. (D.E. #69, p. 14). This is reversible
error because unintentionally recorded conversations are not covered under the
statute. Further, an action not covered under the statute cannot be reasonably used
to show that the statute was constitutional as applied to other actions, which are
also not covered by the statute.
Following the lower courts logic, even if McDonough had gotten the
Chiefs and the Detectives explicit consent, the recording would have still been
illegal due to the inadvertent and unintentional interception, lacking of any mens
rea. Such an application ignores the first element of FSS. 934.03, i.e. intentional
interception. In terms of privacy expectations, the court focused on this issue,
entirely sidestepping the analysis of whether the Chief and/or the Detective had
any reasonable expectation of privacy.8
8 (D.E. #69, p. 13) More importantly, even if the Chief had no expectation of privacy in the phone callor his conversation with [McDonough] for that matter, [McDonough] would still have violated the statutefor recording the conversation that occurred outside the Chiefs office
32
The State in its December 9, 2014 letter to McDonough completely ignores
the expectation of privacy provisions of the statute, and provides only consent as a
lawful allowance for recording.9 The State reiterated this position in their motion
to dismiss,10 and the lower court agreed.11 Such an application of FSS. 934.03 to
McDonoughs recording, ignoring the lack of any reasonable expectation of
privacy of those intentionally recorded, is unconstitutional.
The State also claims that if a police officer has an expectation of privacy
in a conversation during a traffic stop, he or she would certainly have such an
expectation in a private office (D.E. #12, p. 8-9). First, it has been held by
Florida courts that police officers would not have an expectation of privacy in their
government office in similar situations under which the recording at issue was
made (see below). Second, The Federal District court for Northern Florida
disagrees that police officers would have an expectation of privacy during a traffic
stop, even when secretly and not openly recorded. It was held that officers did not
have qualified immunity for arresting a citizen who secretly recorded his
encounters with officers during a traffic stop:
9 (D.E. #1, Exhibit) Recording a conversation without the permission of the other party or parties is a violation of the statute and is a 3rd degree felony. 10 (D.E. #12, p. 8) [T]he statute is unambiguous and does not include an exception for a private individual who records a police officer without the officers consent. 11 (D.E. #69, p. 13) [I]n this as-applied challenge, his threatened violation consists of recording and publishing those conversations overheard without consent.
33
As a matter of first impression, I construe Fla. Stat. 934.03 to be inapplicable to Bacons conduct because the officer did not have a reasonable expectation of privacy. The officer made the stop in public, in an open area, where bystanders could have been listening to his conversation Likewise, there is little societal expectation of privacy for police officers acting in the line of duty in public places; an expectation of privacy in these circumstances would undercut societal expectations of police accountability. This expectation is a corollary to the constitutional right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest. Smith, 212 F.3d at 1333. Most importantly, any contrary construction of the statute would raise serious constitutional issues as to its validity as an unreasonable restriction on constitutionally protected speech, and I will construe ambiguous statutes to avoid constitutional problems. See United States v. Stone, 139 F.3d 822, 836 (11th Cir. 1998). Recording a police officer is constitutionally protected speech, subject only to reasonable time, place, and manner restrictions. Smith, 212 F.3d at 1333 The government has little legitimate interest in casting a veil of secrecy over police officers performing their official duties in public places, especially given that officers often record themselves in similar instances. Such a restriction would also fail to leave open other alternative channels of communication for the constitutionally protected right to videotape police officers. Bacon v. McKeithen, Civil no. 5:14-cv-37-RS-CJK (N. Fla.) (DE 33) (2014) (p. 9-10).
Similar rationale was used by the 7th Circuit to find the Illinois wiretapping
statute unconstitutional, because it only made consent to record an exception not
covered by the statute, and never recognized an exception for instances in which
there was no reasonable expectation of privacy of those recorded.
The law invalidated todayis stricter than provisions found in the laws governing electronic eavesdropping in most other states because it requires both parties to consent to a recording of their conversationThe ACLU
34
insists on, and the majority opinion endorses, the right to record conversations to which police officers are parties even if no party consents to the recording, as long as the officers are performing public duties (as distinct from talking with one another on a private topic) in a public place and speaking loudly enough to be heard by a person who doesnt have special equipment for amplifying soundin other words, a person standing nearby. Our ruling casts a shadow over electronic privacy statutes of other states as well, to the extent that they can be interpreted to require the consent of at least one party to a conversation to record it even though the conversation takes place that in a public place, if the conversation could nevertheless reasonably be thought private by the parties. ACLU v. Alvarez, 679 F.3d 583, 609 (7th Cir. 2012). Also of note is FSS. 934.10(2)(C) itself gives McDonough immunity for his actions. FSS. 934.10(2); A good faith reliance on:
(c) A good faith determination that Florida or federal law, other than 18 U.S.C. s. 2511(2)(d), permitted the conduct complained of shall constitute a complete defense to any civil or criminal, or administrative action arising out of such conduct under the laws of this state.
McDonough clearly is of the belief that his actions were not covered by the
statute, separate from any reliance on federal statutes, at least because the
controlling case law establishes a First Amendment right to record, and there being
no reasonable expectation of privacy by those who were recorded.
FSS. 934.03 does not apply to McDonoughs recording. It has been shown
that McDonough had a First Amendment right to gather information. Any
application of FSS. 934.03 making the recording conversations with police officers
unlawful without their consent, irrespective of the reasonable privacy expectations
35
of the police officer, would be additionally unconstitutional. Further, the statute
itself gives immunity for multiple good faith reasons under the present fact pattern.
C. APPLICABLE PRIVACY CASE LAW
[T]he ruleis that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
Katz v. US, 389 U.S. 347 (1967) (internal citations omitted).
One Florida appellate court has held that it did not violate the Florida
wiretap act for a subordinate law enforcement officer to record his supervisors'
statements in a disciplinary interview; the court held that there was no reasonable
expectation of privacy because of the number of persons present (five, the
subordinate and four senior officers), the location of the interview (in a sergeant's
office at a police station), and the nature of the interview (a disciplinary matter).
[D]isciplinary records and information are not included in the items specifically exempt from disclosure by section 119.07(3), Florida Statutes, the Public Records Act. In addition, the Florida Constitution contemplates that public business is to be conducted in the "sunshine." Reasoning from this open-government premise, and the fact that all persons claiming an expectation of privacy in this case were public employees acting in furtherance of their public dutiesany statements madein performance of their public duties were not privileged, hence no reasonable expectation of privacy attached to those statements.
Dept. of Ag. & Con. Servs. v. Edwards, 654 So. 2d 628, 632-33 (Fla. 1st DCA 1995).
In comparison to the instant case, there was no reasonable expectation of
privacy based on the number of persons present in the office, and/or told of the
36
meeting (6; four in the Chiefs office including McDonough, the Witness, the
Chief and the Detective; and two being told of the contents12), the location of the
interview (in a Chiefs Office at a police station), and the nature of interview
(disciplinary matter). The Chief and the Detective did not have any expectation of
privacy that society as a whole would have found to be reasonable.
The Pennsylvania Supreme Court held that secretly recording a police
officer in the performance of his duties did not violate the Wiretap Act. See
Commonwealth v. Henlen, 522 Pa. 514, 564 A.2d 905, 906 (1989). In Henlen, a
theft suspect who covertly recorded a state trooper's interrogation did not violate
the Wiretap Act because the trooper did not have a reasonable expectation of
privacy in the statements. The factors belying a reasonable expectation of privacy
included: (1) "oral interrogations of suspects by the police are generally recorded,
albeit by the police rather than the suspect"; (2) the trooper was taking notes during
the interview; and (3) the trooper allowed a third party to sit in on the interview.
In comparison to the instant case (1) McDonough was being interviewed by
the Chief and the Detective; (2) the Detective was taking notes during the meeting,
12 D.E. #58, Exhibit B: the Chief stated he would talk to Murguido about the contents of the conversation, p. 60; and the Chief contacted and stated he would talk to Murguidos supervisor about the content of the conversation, p. 15-16 and 22.
37
the Chief accepted physical evidence; and (3) the Witness sat in on the interview as
third party.
Of note is that there is no case law showing that a police officer would have
had an expectation of privacy that society as a whole would find reasonable under
the facts of the case.
The cases cited by McDonough herein and the facts show that clearly neither
the Chief nor the Detective had a reasonable expectation of privacy in the
communications, and as such FSS. 934.03 does not apply. Therefore, application
of the statute to this recording is unconstitutional.
D. ANALYSIS OF PRIVACY EXPECTATION
Neither the Chief nor the Detective can claim they possessed a reasonable
expectation of privacy in the communications openly13 recorded by McDonough.
Unfortunately, the lower court focused on the misuse of the word
surreptitious by McDonough (D.E. #69, p. 2), inconsistent with its definition,14
to conclude that the recording was covertly made (D.E. #69, p. 14). However, the
distinction between open or secret recording has been not seen as relevant under
13 McDonough made no attempts to hide the recording device, even going out of his way to physically display it to the Chief at the beginning of the meeting, and placing it in plain view on his desk (D.E. #69, p. 2, footnote). 14 Surreptitious: Stealthily or fraudulently done, taken away, or introduced. Blacks Law Dictionary 2nd Edition
38
the law in the Florida Appellate Courts (See, Dept. of Ag. & Con. Servs. v.
Edwards), or the US District for Southern Florida (See, Bacon v. McKeithen).
The Chief and the Detective were public servants, performing their public
duties, on public property, interacting with a member of the public about public
business, who they invited, who was lawfully present, and in the presence of a
third party witness. Additionally, the Chief and the Detective would have
anticipated making and both wrote about the contents of the communications as
part of the public record, which became public record as required by the Sunshine
Law. The Chief further discussed the contents of the meeting with at least two
others who were not present, and it is reasonably assumed the conversation was
overheard by people not in the office.
The three unidentified female voices, could be overheard by McDonough
and others, and as a general rule, there is no expectation of privacy in a
conversation that can be overheard from a location where the interceptor has a
legal right to be. [C]onversations in the open would not be protected against
being overheard, for the expectation of privacy under the circumstances would be
unreasonable. See, Katz v. US, 389 U.S. 347 (1967). Since the three female
voices could be overheard, it is also reasonable to believe they overheard some or
all of the recorded conversation, and it is further evidence of the Chief having no
reasonable expectation of privacy.
39
Additional evidence demonstrating the Chiefs understanding that the nature
of the meeting was one of public business, contrary to claims in the Chiefs
affidavit that he thought the meeting was about a private matter (D.E. #58, Exhibit
A, para. 11), in the meeting the Chief stated:
Yeah. Well, I know. But, Im saying, you know, its just too much stuff happened and right now its to the point, right now, where if you were to [pursue this] and file suits and everything, you know, were going to have [this city] is going to have some problems based on what you just youre telling me and what youre showing me.
(D.E. #58, Exhibit B, p. 85-86; brackets [] correct words which were omitted/misquoted).
The lower court acknowledged recording as protected activity (D.E. #69, p.
5-6), but ignored the privacy expectation. Since FSS. 934.03 does not apply in
situations lacking a reasonable expectation of privacy, the statute at least as applied
to McDonoughs actions must be held unconstitutional.
CONCLUSION
A. CONSTITUTIONALITY OF FSS. 934.03 WITH RESPECT TO THE FIRST AMENDMENT RIGHT TO GATHER INFORMATION
Regardless of the analysis or method used to arrive there, the proper
standard for review of the First Amendment right to record police activity on
public property, specifically matters of public interest, is an intermediate scrutiny
standard established by Smith.
The First Amendment right to record police officers in the performance of
their official duties on public property would attach, barring only a reasonable
40
time, manner, or place restriction. A blanket prohibition against recording police
without their consent is not a reasonable restriction under the intermediate scrutiny
standard.
If FSS. 934.03 is held to provide a blanket prohibition on recording police
without consent, then the statute itself would be unconstitutional.
Conversely, if FSS. 934.03 is not held to cover such situations, then the
interpretation of the statute by the State and as applied here is unconstitutional, as
there was no reasonable time, manner or place restrictions present when the
recording at issue was made. The government infringes on protected activity
whenever it punishes or threatens to punish speech., Bass v. Richards, 308 F. 3d
1081 (10th Cir. 2002), and Any form of official retaliation for exercising ones
freedom of speech, including prosecution, threatened prosecution, bad faith
investigation, and legal harassment, violates the first amendment, Worrell v.
Henry, 219 F.3d 1197 (10th Cir. 2000).
B. FSS. 934.03 DOES NOT COVER THE ACTIONS OF MCDONOUGH AND APPLICATION OF THE STATUTE IS UNCONSTITUTIONAL Police officers have little to no societal expectation of privacy in the
carrying out of their official duties, especially when they knowingly expose their
actions to members of the public. See Katz v. US, 389 U.S. 347 (1967).
41
A police officer, even in his or her office at the police station, taking the
complaint of, or interrogating a citizen, has no reasonable expectation of privacy.
Such would undercut societal expectations of police accountability.
Most importantly, any contrary construction of the statute would raise serious constitutional issues as to its validity as an unreasonable restriction on constitutionally protected speech, and I will construe ambiguous statutes to avoid constitutional problems. See United States v. Stone, 139 F.3d 822, 836 (11th Cir. 1998). Recording a police officer is constitutionally protected speech, subject only to reasonable time, place, and manner restrictions. Smith, 212 F.3d at 1333. Bacon v. McKeithen, Civil no. 5:14-cv-37-RS-CJK (N. Fla.) (DE 33) (2014) (p. 9-10). There were no reasonable restrictions present against recording. Broadly
applying FSS. 934.03 to forbid recording police without consent is unreasonable.
As applied only to the facts in the instant case, it is shown that the Chief did
not likely possess even a subjective expectation of privacy. He informed others of
the contents of the conversation both during and after the meeting, he brought
another into the room to participate in the conversation, allowed the Witness to be
present, and made comments about the conversation as part of the public record.
These actions fail the first prong of the privacy test.
The totality of the facts above overwhelmingly demonstrates, that there was
no expectation of privacy that society as a whole would find reasonable, thus
failing the second prong of the privacy test.
42
If anyone at the meeting would have possessed an expectation of privacy, it
would have been McDonough, acting as a private citizen, making a complaint
about police abuse. However, the actions of the Chief clearly demonstrate he did
not believe McDonough had an expectation of privacy in the communications.
How then could the Chief himself, acting as a public official, doing the publics
business, claim an expectation of privacy?
If FSS. 934.03 is held to cover the recording of police officers without their
consent, even when there is no reasonable expectation of privacy, then the statute
itself should be held unconstitutional.
Conversely, if FSS. 934.03 is not held to cover the recording of police
officers without their consent when they have no reasonable expectation of
privacy, the application of the statute by the State is unconstitutional, as it does not
apply.
Lastly, FSS. 934.03 as applied is unconstitutionally overbroad as well as
vague. While the State contends that McDonoughs recording was illegal, many
authorities contradict such an opinion including the 11th Circuit in Smith and the
Florida appellate courts in Dept. of Ag. & Con. Servs. v. Edwards. Even the Office
of the State Attorney Eighth Judicial Circuit of Florida Law Enforcement
Newsletter (January 2012, p. 3-4), and the 2014 Florida Law Enforcement
Handbook Miami-Dade County Edition (Legal Guidelines p. 40-41), both citing
43
Smith, contradict the position of the State, and agree with the position of
McDonough. Therefore, the person of ordinary intelligence would be left to guess
at the meaning of FSS 934.03, inhibiting the free exercise of First Amendment
rights.
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Grayned v. City of Rockford, 408 U.S. 104 (1972). Based on the totality of the facts and the precedents, it is obvious that the
meeting was not a private meeting as claimed by the Chief, but was indeed was
about public issues, where the Chief would have possessed no reasonable
expectation of privacy, and McDonough would have possessed a First Amendment
right to record.
C. PRAYER FOR RELIEF
It is requested that the lower courts decision in the Order on Motion for
Summary Judgment (D.E. #69-70), granting the States Motion for Summary
44
Judgment (D.E. #58), and denying McDonoughs Motion for Summary Judgment
(D.E. #47) be reversed, remanding the case to the lower court for trial.
Respectfully Submitted,
James Eric McDonough, Pro Se Plaintiff/Appellant 32320 SW 199th Avenue Homestead, FL 33030 (571)245-5420 Telephone [email protected] Email
CERTIFICATE OF COMPLAINCE WITH RULE 32(A)
Certificate of Compliance With Type-Volume Limitation, Typeface Requirement, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed.R.App.P. 32(a)(7)(B) because:
this brief contains 10,727 words, excluding the parts of the brief exempted by FED.R.App.P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of FED.R.App.P. 32(a)(5) and the type style requirements of Fed.R.App.P. 32(a)(6) because:
This brief has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14 point font size and Times New Roman type style.
Dated: December 28, 2015
Respectfully Submitted,
James Eric McDonough, Pro Se Plaintiff/Appellant 32320 SW 199th Avenue Homestead, FL 33030 (571)245-5420 Telephone [email protected] Email
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I filed the foregoing document with the Clerk of
the United States Court of Appeals for the 11th Circuit by certified U.S. mail on
this 28th day of December, 2015. I also certify that the foregoing document and
attachment(s) is being served this day on counsel of record on the attached Service
List in the manner specified by electronic or U.S. Mail.
Respectfully Submitted,
James Eric McDonough, Pro Se Plaintiff/Appellant 32320 SW 199th Avenue Homestead, FL 33030 (571)245-5420 Telephone [email protected] Email
SERIVCE LIST
James Eric McDonough v. Katherine Fernandez-Rundle Case No. 15-14642-G
United States Court of Appeals for the Eleventh Circuit
By Email John J. Bajger 110 S.E. 6th Street, 10th Floor Fort Lauderdale, FL 33301 [email protected] Attorney for Defendant/Appellee
Cover page appealAmended certificate of interestSTATEMENT REGARDING ORAL ARGUMENTtables content citationsappeal 14CERTIFICATE OF COMPLAINCE WITH RULE 32CERTIFICATE OF SERVICE
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