Appeal No Signature

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 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


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


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.



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



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.



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

Documents

Appeal No Signature