Appeal Brief Draft 6

7/24/2019 Appeal Brief Draft 6

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JURISDICTIONAL STATEMENT

STATEMENT OF ISSUES OF APPEAL

Whether the lower court committed reversible error by applying the speech

forum doctrine to recording police officer engage in the official duties.

Whether the lower court then committed reversible error by improperly

applying the speech forum doctrine, to Appellants recording.

Whether the lower court committed reversible error by finding the statute

constitutional, as applied to Appellants recording.

CONCISE STATEMENT OF THE CASE

On February 7, 2014 Appellant (McDonough) met with Chief Alexander

Rolle (the Chief) of the Homestead Police Department (HPD). Detective Antonio

Aquino (the Detective) and Albert Livingston (Civilian Witness) sat in on this

meeting. The meeting was in the Chiefs office at his request and invitation, and

McDonough recorded this conversation openly, but never asked for or received the

Chiefs consent to record the conversation. McDonough gave the Chief

documentation, as well as filed an internal affairs (IA) complaint.

Additionally, the Chief later contacted and informed the primary subject of

the meeting Officer Alejandro Murguido (Murguido), and informed Murguidos


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supervisor Sergeant Thomas Tommy Surman (Muguidos supervisor), of the

contents of the meeting before the meeting was even over.

The meeting was primarily to file an IA complaint against Murguido for his

actions. When the IA complaint McDonough filed onFebruary 7, 2014 was

released as public record on XXX, none of the evidence given the Chief by

McDonough was present.

McDonough filed a request for the specific documents given, and the request

was returned as non-responsive to McDonough, giving the Chief any documents at

the meeting. Follow up gave confirmation from the Chief that he was claiming

McDonough gave him no documents during the meeting.

McDonough then used sections of the recording from the February 7, 2014

meeting with the Chief make a video, documenting the Chiefs destruction of

records, and evidence of what McDonough thought was proof of several counts of

official misconduct, published on XXX. Two other videos using segments of the

recording were published on the internet on XXX and XX. Also the full recording

was released to the media and 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 made aware of the videos,

HPD filed or attempted to file complaints with the Miami-Dade State Attorneys


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Office (MDSAO), the Miami-Dade Police Department (MDPD), and the FDLE.

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 did send McDonough a letter, dated

xxx, threatening possible felony prosecution for future recording police officers

without their consent, period (SAO letter). This action chilled the First

Amendment rights of McDonough.

On XXXMcDonough filed the complaint initiating this litigation (DE XX),

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

the State from enforcing the statute at least as applied to the action of recording a

police officer on public property.

The State responded on xxxwith a motion to dismiss (DE xx). The court

ruled on the motion on xxx and granted dismissal as to the statute being

unconstitutional on its face, and denied the motion as to the statute being

unconstitutional as applied (DExx).


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On xxxMcDonough filed a motion for summary judgment (DE xx). This

motion was denied until the discovery process could be completed (DE xx).

On xxxMcDonough filed a renewed motion for summary judgment (DE

xx). The State filed a motion for summary judgment and response to

McDonoughs motion for summary judgment on xxx (DE xx????), and

McDonough filed a response to the States motion for summary judgment and

response on XXX (DE xx). Need to make sure this is right.

On xxxthe lower court entered an order denying Appellants/Plaintiffs

motion for summary judgment, and granting the Appellees/Defendants motion

for summary judgment (DExx).

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 activity;

where its function is to balance the right of making assertive expressive activity

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 record police officers on public property in

the performance of their official duties is subject only to reasonable time, manner

and place restrictions. This right is not subject to the speech forum doctrine.


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Therefore, it must hold that the statute 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 expressive

speech. Neither the invited expressive activity, nor the recording was disruptive to

the operations of the HPD or incompatible with its designated function. The lower

court also erroneously conflated McDonoughs claim of a right to record and

gather information, as a claim of right to access; as well as failing to appreciate the

significance of an invitation to make expressive activity. Therefore, it must hold

that the statute is unconstitutional as applied to McDonoughs recording.

The court failed to recognize that based on the specific facts of the case the

statute does not apply. The reasons include there being no expectation of privacy

(i.e. explicitly excluded from statute), and the fact that any incidentally captured

conversations were unintentional (i.e. intentional interception is the first required

element of the criminal statute). As the statute does not apply to the recording, and

there is a First Amendment right to record police activity, any retaliation for the

exercising of ones First Amendment rights, including threat of arrest, violates the


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constitution, Worrell v. Henry, 219 F.3d 1197 (10thCir. 2000). Therefore, it must

hold that the statute is unconstitutional as applied to McDonoughs recording.

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

1) The lower court committed reversible error by holding that McDonoughs

claim was one of access to public property to make assertive expressive activity1

.

McDonough was not trespassing, which the lower court admitted2, showing the

right of access is not at issue, for access was granted by the Chief for McDonough

to come and make a complaint against one of his officers, i.e. petition government

for redress of grievances which is assertive expressive activity.

2) What is claimed is the passive right to record police activity, when having

a conversation 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.

1(OSJ, p. 9) It is undisputed that [McDonough] seeks access to record in thepolice station.

2(OMD, p. 5) clearly an individuals lawful presence in a government office isdistinguishable from a burglary.


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B. THE PASSIVE RIGHT TO GATHER INFORMATION IS

DISTINCT FROM THE ACTIVE RIGHT TO SPEECH AND

EXPRESSION

3) There are different types of expressive activities protected under the First

Amendment. This includes assertive actions, i.e. expressive activity or speech, and

also includes passive actions, i.e. gathering information or recording. Recording is

a wholly different type of speech than assertive speech.

4) Assertive expressive activity is governed by the Speech Forum

Doctrine. Where after it is determined that an action may be protected, the forum

type is determined. The appropriate scrutiny level would then be 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).

5) Certain public property is often reasonably found to be a non-public

forum, as expressive activities could interfere with, disrupt, and/or be incompatible

with government functions. However, the passive action of gathering information

about police through recording has been found to be governed by intermediate

scrutiny. See, Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding

First Amendment right, subject to reasonable time, manner and place restrictions,

to photograph or videotape police conduct).


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6) 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 toaccess information, and declined to apply the speech forum doctrine becauseit "[traditionallyapplies to `expressive' or `speech' activity," and thealleged constitutional violation "consisted of aright to receive and recordinformation," not "speech or other expressive activity."

Kelly v Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010).

7) Such a distinction was also seen in the 7thCircuit, where the 7thCircuit

additionally held that the act of recording is protected by the First Amendment.

The act of making an audio or audiovisual recording is necessarily includedwithin the First Amendments guarantee of speech and press rights as acorollary of the right to disseminate the resulting recording. The right to

publish or broadcast an audio or audiovisual recording would be insecure, orlargely ineffective, if the antecedent act of making the recording is whollyunprotected, as the States Attorney insists...This is a straightforwardapplication of the principle that [l]aws enacted to control or suppressspeech may operate at different points in the speech processCitizensUnited v. FEC, 130 S. Ct. 876, 896 (2010)...Put differently, theeavesdropping statute operates at the front end of the speech process byrestricting the use of a common, indeed ubiquitous, instrument ofcommunication.

ACLU V ALVAREZ, 679 F.3d 583, 594-595 (7th Cr. 2012).

8) McDonough wanted to be capable of opposing or questioning police

action if, for among other reasons, there was any misconduct. Without audio

recording, no citizens word would hold 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.


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The First Amendment protects a significant amount of verbal criticism andchallenge directed at police officersThe freedom of individuals verbally tooppose or challenge police action without thereby risking arrest is one ofthe principal characteristics by which we distinguish a free nation from a

police state.Hill v Houston, 482 U.S. 451, 461, 463-464 (1987).

9) There is a greater right to passively record police activity, than there is a

right to use government property to make assertive expressive activity. However,

where the right to make assertive expressive activity is present, as it was during the

meeting, the passive right to gather information should by default attach, barring

presence of a reasonable restriction against such recording.

The protection offered by the First Amendment is not diminished when thatspeech is communicated through a camera lens or recording deviceCourtshave long held that recordings made by private citizens of police conduct orother items of public interest are entitled to First Amendment protection.

Garcia v Montgomery County, Civil No. 8:12-cv-03592-JFM, U.S. Department ofJustice Statement of Interest, page 6.

10) The passive act does not interfere when done by those lawfully present,

where the assertive expression may. It is this latter type of assertive expressive

activity which the speech forum doctrine is applied to, not the former passive act 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, as police themselves

often times record such conversations.

The ACLUs proposed audio recording will be otherwise lawfulthat is, notdisruptive of public order or safety, and carried out by people who have a


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legal right to be in a particular public location and to watch and listen towhat is going on around them.

ACLU V ALVAREZ, 679 F.3d 583 (7th Cr. 2012). (proper page numbers?)

C. THE RIGHT TO RECORD IS NOT REGULATED BY FORUM

TYPE

11) The broad binding principle in this Circuit is that: "The First

Amendment protects the right to gather information about what public officialsdo

on public property, and specifically, a right to record matters of public interest"

Smith v. Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (emphasis). In the case

at bar, the Chief of Police is a public official, the police department is public

property3, and police conduct is a matter of public interest. Therefore, the right to

record would have been present.

12) The Court inSmithalready decided the standard for recording police

conduct, is limited to reasonable time, manner, and place. Importantly, the ruling

holds the right to gather information attaches to public property, and does not

address forum type.

13) The lower court appears to conflate public places with public forums

Plaintiffs recording notin a public place (OSJ, p. 15), yet the two are not

synonymous. Indeed public property and/or public places are not mutually3Public property: Any property that is not owned by a privateindividual or acompany. 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 2ndEdition
http://thelawdictionary.org/individual/http://thelawdictionary.org/individual/


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exclusive with non-public forums. The lower court argues ingress and egress

walkways to a post office building are nonpublic fora (OSJ, p. 9). While true,

clearly a post office is still a public place and it is by definition public property. A

public place can be public property or private property, and can be a traditional

public forum, a limited public forum or a non-public forum.

14) Further, evidencingthat the speech forum doctrine is not the proper

standard, there is no expectation of privacy and therefore a right to record in places

that are considered to be non-public forums. Such places 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 no expectation of privacy in conversations made loud enough that

others could overhear, as conversations under these conditions will be exposed to

the public, Katz v US, 389 U.S. 347 (1967). Using the speech forum doctrine in

places such as the ingress and egress walkways to a post office, only rational basis

review would apply under the speech forum doctrine, yet again intermediate

scrutiny has been applied through Smith.

15) Further still, the right to record applies even when expressive activity

doesnt. Anyone present in a public meeting can record audio of the meeting, even

though they may not be allowed to speak or make expressive activity. This right

attaches unless there is a reasonable time, manner or place restriction.


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16) Even the U.S. Department of justice (DOJ) agrees and recognizes a First

Amendment right to record police activity which would be subject only reasonable

time, manner and place restrictions, and wrote Statements of Interest 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 speechthrough which private citizens may gather and disseminate information of

public concern, including the conduct of law enforcement officers. The FirstCircuit recently held in Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011), that[b]asic First Amendment principles and federal case law unambiguouslyestablish that private citizens possess a constitutionally protected right tovideotape police carrying out their duties.Id. at 82. See Smith v. Cumming,212 F.3d 1332, 1333 (11th Cir. 2000) (recognizing the First Amendmentright subject to reasonable time, manner and place restrictions to photographor 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 alegitimate means of gathering information for public dissemination and canoften provide cogent evidence). The right to record police activity is limitedonly by reasonable time, place, and manner restrictions. Glik, 655 F.3d at84; see Kelly v. Borough of Carlisle, 622 F.3d 248, 262 (3d Cir. 2010)(noting even insofar as it is clearly established, the right to record mattersof public concern is not absolute; it is subject to reasonable time, place, andmanner restrictions, and finding insufficient case law to establish a right to

videotape police officers during a traffic stop, an inherently dangeroussituation[ ]). There is no binding precedent to the contrary.

The reach of the First Amendments protection extends beyond the right togather such information it also prohibits government officials frompunish[ing] the dissemination of information relating to allegedgovernmental misconduct.Id. at 1035; see Butterworth v. Smith, 494 U.S.


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624, 632 (1990) (speech relating to alleged governmental misconduct hastraditionally been recognized as lying at the core of the First Amendment).The right to engage in and disseminate speech relating to governmentmisconduct is not diminished when the government actors are policeofficers. See City of Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) ([T]heFirst Amendment protects a significant amount of verbal criticism andchallenge directed at police officers.)

Sharp v Baltimore City Police Department, Civil No. 1:11-cv-02888-BEL, (D.Md.) (DE #24) (2012), pages 5-6.

17) The DOJ also wrote a letter in the Sharp Case. In this leterr theyreaffirmed their position above, and additionally opined:

The right to [g]ather[] information about government officials in a formthat can readily be disseminated to others serves a cardinal First Amendmentinterest in protecting and promoting the free discussion of governmentalaffairs. Glik, 655 F.3d at 82 (citingMills v. Alabama, 384 U.S. 214, 218(1966)). The application of this right to the conduct of lawenforcementofficers is critically important because officers are granted substantialdiscretion that may be used to deprive individuals of their liberties.Id.;Gentile v. State Bar of Nev., 501U.S. 1030, 1035-36 (1991) (Publicawareness and criticism have even greater importance where, as here, theyconcern allegations of police corruption.).

U.S. Department of Justice, JMS:TDM:RJO, DJ 207-35-10, page 3.

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 FirstAmendment 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.

D. THE RIGHT TO RECORD POLICE ACTIVITY SUBJECT ONLY

TO REASONABLE TIME MANNER AND PLACE RESTRICTIONSIS WELL ESTABLISHED

18) To demonstrate that a constitutional right is clearly established, a

plaintiff must demonstrate (a) that a materially similar case has already been


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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),

(citingMercado v. City of Orlando, 407 F. 3d 1152, 1159 (11thCir. 2005).

19) Smithheld 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 (OMD, p. 5). The court later misconstrues the conversation between

the Chief and McDonough as a personal meeting in a private office (OSJ, P. 11

footnote), however, the meeting was of a public not personal nature, and the

Chiefs office is a public office although available for his private use.

20) At a minimum the broad clearly established principle of Smithshould

control the novel facts of the situation.

21) 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, no close call is present here.


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E. APPLICATION OF FSS 934.03 TO MCDONOUGHS ACTION OF

RECORDING IS UNCONSTITUTIONAL

22) The State and lower court have both failed to cite a single precedential

case that is contrary to the binding principles of Smith. McDonoughs positionis

the right to record police activity is held to intermediate scrutiny regardless of

forum type, and thatthere were no reasonable restrictions barring the recording4

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 complaint5.

23) Also the State argued that banning recordings in a police department is

fully consistent with prohibiting recordings in other buildings such as courthouses

citingMcKay 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 theinstances of ringtones interrupting judicial proceedings and make itimpossible for jurors to conduct online research in the courtroom. And

prohibiting the recording of jurors and witnesses will alleviate any concernsabout witness and juror intimidation. Accordingly, the Electronics Ban

Order does not violate McKay's First Amendment rights.McKay v.Federspiel, at *6

4HPD did not at the time have any policies against recording. A blanketprohibition against recording police activity without consent is not reasonable.5Miami-Dade Police Department forbids recording of IA interviews by theinterviewee. They have a policy, as well as notice posted.


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24) 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 the Florida statute bans all recordings at any

time, in any place, it is not a valid time, place and manner restriction. The

courthouse analogy is not applicable to the case at bar. In comparison to the

instant case, the court house had a reasonable restriction present, but HPD did not.

25) Therefore, the FSS 934.03 is unconstitutional as applied.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

26) In the alternative, 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.


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27) The Chief called and asked McDonough to come to his office for a

meeting. Further, at the beginning of the meeting the Chief verbally stated twice to

McDonough and his witness to come on in (TR, p. 3; wrongly attributed to

McDonough).

28) The State argued McDonough was not invited to the Chiefs office

(DRSF, p. 2-3), and the lower court held whether he was invited is disputed(OSJ,

p. 11, footnote). However, such an interpretation ignores the plain and ordinary

meaning of the word(s) invite/invitation, and its legal definition:

invitationis 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 soarranges the property or the means of access to it or of transit over it as toinduce thereasonable belief that he expects and intends that others shallcome upon it or pass over it. See Sweeney v. Old Colony & N. R. Co., 10Allen (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 2ndEdition

29) The Chief solicited and/or incited McDonough and his 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.

30) The incorrect defining of invite/invitation is material to the courts

ruling that the Chiefs office was a non-public forum for purposes of the meeting.
http://thelawdictionary.org/invitation/http://thelawdictionary.org/invitation/http://thelawdictionary.org/reasonable-belief/http://thelawdictionary.org/reasonable-belief/http://thelawdictionary.org/invitation/


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B. TYPES OF PUBLIC FORA AND DESIGNATION FOR MEETING

31) The Chief having invited McDonough into his office to make expressive

speech, i.e. petition, the court must analyze what the appropriate what type of

forum was the Chiefs office.

32) 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.

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).

33) It is noted that the lower court cited Cornelius (OSJ, p.11, footnote), but

did not properly apply it to the facts. First, Corneliusis itself not directly relevant,

as it was directed at access itself, where instantly only the right to gather

information and record is being claimed. Second, McDonough desired to exercise

his right to gather information and petition 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 internal affairs complaints, and

such assertive expressive activity as petitioning government for redress is not

incompatible with the activities of a police department.


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The line between limited public forums and nonpublic forums "may blur atthe edges," and is really more in the nature of a continuum than a definitedemarcation. Cf. United States Postal Service v. Greenburgh CivicAssns.,453 U.S. at453 U. S. 132 (the line between defining the forum andregulating the time, place, and manner of expressive activity in the forum

blurs at the edges). The government may invite speakers to a nonpublicforum to an extent that the forum comes to be a limited public forum

because it becomes obvious that some types of expressive activity are notincompatible with the forum.

Cornelius v. NAACP, 473 U.S. at 802.

34) The Chief admitted that he knew McDonough wanted to meet with him

to file a complaint (Chiefs affidavit, para. 5). Thus, it is rightly argued that the

Chief took purposeful action, inviting McDonough and his 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 incompatible with the forum, but is

actually part of the routine business of the police department.

35) 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.).

36) Therefore, as the Chief invited McDonough to make assertive expressive

activity, for the purposes of the meeting his office would have been a limited

public forum.
https://supreme.justia.com/cases/federal/us/453/114/case.html%23132https://supreme.justia.com/cases/federal/us/453/114/case.html%23132


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C. THE STATUTE AS APPLIED FAILS TO LEAVE OPEN

ADEQUATE ALTERNATE CHANNELS OF COMMUNICATION

37) If the statute were interpreted to forbid recording police officers, then 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 powerfulmethods of preserving and disseminating news and information about eventsthat occur in public. Their self-authenticating character makes it highlyunlikely that other methods could be considered reasonably adequatesubstitutes.

ACLU V ALVAREZ, 679 F.3d 583, 595 (7th Cr. 2012) (check page numbers)

38) 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 the statute to prohibit recording police

officers without their consent is not seen as serving a legitimate government

interest.

D. APPLICATION OF FSS 934.03 TO MCDONOUGHS ACTION OF


39) In the instant case if it is to be argued, that the Police Department is not

compatible with general expressive activity, and the government is not required to

allow expressive activity; then it is to be reminded that the Chief specifically


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invited McDonough into his office to petition for the redress of grievances, which

is expressive activity. Further, the expressive activity which the Chief did invite,

furthers the business of the Police Department, and was in no way disruptive to, or

incompatible with, the activities of the Police Department.

40) Corneliusarticulates 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

expressive activity, in doing so he created a limited-public forum for the purpose

of the meeting. The Chief has made his office a limited public forum, subject only

to reasonable time, manner and place restrictions, i.e. intermediate scrutiny.

41) It has been shown that the different types of forums are not exclusive,

the nature of the expressive activity was compatible with the normal uses of the

Police Department. Further, the Chief not only allowed such activity, but actively

encouraged it. Where it must follow if McDonough had a First Amendment right

to make such active expression, then the First Amendment right to passively record

such activity would necessarily attach, as such activity does not disrupt nor is it

incompatible with the forum.

42) Further, a position is created where by not being able to exercise the

First Amendment right to record police activity, a citizen could be

unconstitutionally chilled from exercising their First Amendment right to petition


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for redress, because they are fearful of retaliation that the police may not be honest.

Without evidence such as a recording to verify the conversation police could lie

and their word would be believed over that of a citizen in nearly every instance.

43) Since the State and lower court failed to recognize the Chiefs office was

a limited-public forum for purposes of the meeting, 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. APPLICATION OF FSS 934.03 TO MCDONOUGHS ACTION OF


44) The State in its threatening letter to McDonough dated December 9,

2014, 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

recorded. As applied to the exact facts of the case, the statute cannot be

constitutionally applied to McDonoughs actions.

45) 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, when and where the person recording has a

lawful right to be present, is constitutionally protected. The lower court committed

reversible error because conversations where there is no expectation of privacy are

not covered under the statute.


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46) 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. (OMD, p. 14). This is reversible

error because unintentionally recorded conversations are not covered under the

statute.

47) Following the lower courts logic, even if McDonough had gotten the

Chiefs explicit consent, the recording would have still been unlawful due to the

unintentional interception. The court focused on this issue and sidestepped entirely

the analysis of whether the Chief and/or the Detective had a reasonable expectation

of privacy6. However, an action not covered under the statute cannot reasonably

be used to show that the statute was constitutional as applied to other actions,

which were also not covered by the statute.

48) It can be seen that FSS 934.03 is unconstitutional as applied by the State

and affirmed by the lower court. The State in its threatening December 9, 2014

letter to McDonough fully ignores the expectation of privacy provisions of the

6(OSJ, p. 13)More importantly, even if the Chief had no expectation of privacy inthe phone callor his conversation with [McDonough] for that matter,[McDonough] would still have violated the statutefor recording the conversationthat occurred outside the Chiefs office


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statute, and only gives consent as a lawful allowance for recording7. The State

reiterated this position in their motion to dismiss8, and the lower court agreed9.

Such an application of FSS 934.03 to McDonoughs recording is unconstitutional.

49) 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 (MD, p. 8-9). First, it is shown 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, where it was

determined that officers did not have qualified immunity for arresting a citizen

who secretly recorded a his encounters with officers during a traffic stop:

As a matter of first impression, I construe Fla. Stat. 934.03 to beinapplicable to Bacons conduct because the officer did not have areasonable expectation of privacy. The officer made the stop in public, in anopen area, where bystanders could have been listening to his conversationLikewise, there is little societal expectation of privacy for police officersacting in the line of duty in public places; an expectation of privacy in thesecircumstances would undercut societal expectations of police accountability.This expectation is a corollary to the constitutional right to gatherinformation about what public officials do on public property, and

7(Letter from SAO) Recording a conversation without the permission of the otherparty or parties is a violation of the statute and is a 3rddegree felony.8(MD, p. 8) the statute is unambiguous and does not include an exception for a

private individual who records a police officer without the officers consent.9(OSJ, p. 13) in this as-applied challenge, his threatened violation consists ofrecording and publishing those conversations overheard without consent


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specifically, a right to record matters of public interest. Smith, 212 F.3d at1333.

Most importantly, any contrary construction of the statute would raiseserious constitutional issues as to its validity as an unreasonable restrictionon constitutionally protected speech, and I will construe ambiguous statutesto avoid constitutional problems. See United States v. Stone, 139 F.3d 822,836 (11th Cir. 1998). Recording a police officer is constitutionally protectedspeech, 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 secrecyover 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 ofcommunication for the constitutionally protected right to videotape policeofficers.

Bacon v McKeithen, Civil no. 5:14-cv-37-RS-CJK (N. Fla.) (DE 33) (2014) (p. 9-10).

50) Similar reasoning is why the 7thCircuit found the Illinois wiretapping

statute unconstitutional, i.e. 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 lawsgoverning electronic eavesdropping in most other states because it requires

both parties to consent to a recording of their conversationThe ACLUinsists on, and the majority opinion endorses, the right to recordconversations to which police officers are parties even if noparty consents

to the recording, as long as the officers are performing public duties (asdistinct from talking with one another on a private topic) in a public placeand speaking loudly enough to be heard by a person who doesnt havespecial equipment for amplifying soundin other words, a person standingnearby. Our ruling casts a shadow over electronic privacy statutes of otherstates as well, to the extent that they can be interpreted to require the consentof at least one party to a conversation to record it even though the


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conversation takes place that in a public place, if the conversation couldnevertheless reasonably be thought private by the parties.

ACLU v. Alvarez, 679 F.3d 583, 604-08 (7thCir. 2012). (check page numbers)

51) Therefore, as the statute does not apply to McDonoughs recording, and

it has been shown that he had a First Amendment right to gather information, and

any application of the statute to make recording conversations with police officers

unlawful without their explicit consent, regardless of the privacy expectations of

the person being recorded, would be unconstitutional.

B. THE FLORIDA WIRETAP ACT

52) First, recording activity where there is no expectation of privacy by the

party intercepted falls outside of the scope of the statute. FSS. 934.02 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 aperson exhibiting an expectation that such communication is not subject tointerception under circumstances justifying such expectation and does notmean any public oral communication uttered at a public meeting or anyelectronic communication.

53) 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


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the First Amendment right to gather information about government activity and

matters of public interest.

54) Second, recording activity where an incidental conversation is

unintentionally intercepted falls outside of the scope of the statute. FSS. 934.03

does not encompass such activity as unintentional interception.

FSS. 934.03; Interception and disclosure of wire, oral, or electroniccommunications 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 electroniccommunication;

55) If an interception is not done intentionally, then the statute does not

apply, as intentional interception is the first required element under the statute.

With respect to the unintentionally recorded conversations, they do not apply to the

statute. Additionally, if people speak loud enough for others to hear, they have no

expectation of privacy, see Katz v US, 389 U.S. 347 (1967).

56) Therefore, the application of the statute to the actions of McDonough is

unconstitutional, as FSS. 934.03 does not cover McDonoughs actions of

recording, and he has a First Amendment right to gather and record information

about what police officers do on public property.


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C. APPLICABLE PRIVACY CASE LAW

[T]he ruleis that there is a twofold requirement, first that a person haveexhibited an actual (subjective) expectation of privacy and, second, that theexpectation be one that society is prepared to recognize as"reasonable What a person knowingly exposes to the public, even in hisown home or office, is not a subject of Fourth Amendment protection.

Katz v US, 389 U.S. 347 (1967) (internal citations omitted).

57) 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 itemsspecifically 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 fromthis open-government premise, and the fact that all persons claiming anexpectation of privacy in this case were public employees acting infurtherance of their public dutiesany statements madein performance oftheir 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 DCA1995).

58) In comparison to the instant case, there was no reasonable expectation of

privacy based on the number of persons present in the office, or told of the meeting

(6; four in the Chiefs office including McDonough, his witness, the Chief and the
http://scholar.google.com/scholar_case?case=7646768440444554116&q=654+So.+2d+628&hl=en&as_sdt=2,22http://scholar.google.com/scholar_case?case=7646768440444554116&q=654+So.+2d+628&hl=en&as_sdt=2,22http://scholar.google.com/scholar_case?case=7646768440444554116&q=654+So.+2d+628&hl=en&as_sdt=2,22


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Detective; and two being told the contents10), the location of the interview (in a

Chiefs Office at a police station), and the nature of interview (disciplinary matter).

Therefore, the Chief and the Detective did not have an expectation of society that

society as a whole would have found to be reasonable.

59) 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). InHenlen, 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.

60) In comparison to the instant case (1) McDonough was being interrogated

by the Chief and the Detective; (2) at least the Detective was taking notes during

the meeting and the Chief accepted physical evidence; and (3) civilian Albert

Livingston sat in on the meeting as an additional third party.

10TR: the Chief stated he would talk Murguido about the contents of theconversation, p. 60; and the Chief attempted to contact and stated he would talk toMurguidos supervisor about the content of the conversation, p. 15-16 and 22.
https://casetext.com/case/com-v-henlenhttps://casetext.com/case/com-v-henlen%23p906https://casetext.com/case/com-v-henlen%23p906https://casetext.com/case/com-v-henlen


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61) These cases show that clearly neither the Chief nor the Detective had a

reasonable expectation of privacy in the communications, and as the statute does

not apply, application of the statute to this recording would be unconstitutional.

62) Of note is that the lower court failed to cite and McDonough could not

find any cases showing that a police officer would have an expectation of privacy

that society as a whole would find reasonable.

D. ANALYSIS OF PRIVACY EXPECTATION

63) Neither the Chief nor the Detective can claim they possessed a

reasonable expectation of privacy in the communications openly11recorded by

McDonough. They were public servants, performing their public duties, on public

property, interacting with a member of the public about government business, who

they invited and who was lawfully present, in the presence of a third party witness.

Additionally, the Chief and the Detective anticipated making and did make

contents of the communications part of the public record as required by the

sunshine law, the Chief discussed the contents of the meeting with at least two

others who were not present, and it can be reasonably assumed the conversation

was overhead by people not present in the office for the meeting.

11McDonough made no attempts to hide the recording device, physicallydisplaying it to the Chief at the beginning of the meeting, and placing it on his desk(OSJ, p. 2, footnote). The lower court has focused on the unfortunate andimproper use of the word surreptitious (PMSJ, p. 8), to conclude that therecording was covertly made (OSJ, p. 14). However, it is noted Florida law doesnot distinguish open versus hidden recordings.


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64) Further, the three unidentified female voice, 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., Katz v US, 389 U.S. 347 (1967). Since the three female voices

could be overheard, it is also reasonable to believe that they overheard some or all

of the recorded conversation, and is further evidence of the Chief having no

reasonable expectation of privacy.

65) As additional evidence against the Chief possessing any expectation of

privacy, in the meeting the Chief stated:

Yeah. Well, I know. But, Im saying, you know, its just too much stuffhappened and right now its to the point, right now, where if you were to sueus and file suits and everything, you know, were going to have This hereis going to have some problems based on what you just youre telling meand what youre showing me.

(Transcript of Recording, p. 85-86).

66) This demonstrating the Chiefs understanding that the nature of the

meeting was of public business, contrary to his claims the meeting was about a

private matter (Chiefs Affidavit, para. 11).

67) The lower court acknowledged recording as protected activity (OSJ, p.

5-6), but ignored the privacy expectation. Since the statue does not cover


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situations lacking a reasonable expectation of privacy, the statute at least as applied

to McDonoughs actions should be held unconstitutional.

CONCLUSION

A. CONSTITUTIONALITY OF FSS 934.03 WITH RESPECT TO THE

FIRST AMENMDENT RIGHT TO GATHER INFORMATION

68) 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 intermediate scrutiny as

held in Smith.

69) The First Amendment right to record police officers in the performance

of their official duties on public property would attach, barring only a reasonable

time, manner, or place restriction. A blanket prohibition against recording police

without their consent is not a reasonable restriction under the intermediate scrutiny

standard.

70) If the statute is held to provide a blanket prohibition on recording police

without consent, then the statute itself would be unconstitutional.

71) Conversely, if the statute 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 restriction present when the

recording at issue was made.


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B.FSS 934.03 DOES NOT COVER THE ACTIONS OFMCDONOUGH AND APPLICATION OF THE STATUTE IS

UNCONSTITIONAL

72) Police officers have little to no societal expectation of privacy in the

carrying out of their official duties.

73) Particularly, when they knowingly expose their action , Katz v US, 389

U.S. 347 (1967).

74) A police officer, even in their office at the police station, taking the

complaint of, or interrogating, a citizen should have no expectation of privacy.

Such would undercut societal expectations of police accountability. See,Bacon v

McKeithen, Civil no. 5:14-cv-37-RS-CJK (N. Fla.) (DE 33) (2014) (p. 9-10).

Most importantly, any contrary construction of the statute would raiseserious constitutional issues as to its validity as an unreasonable restrictionon constitutionally protected speech, and I will construe ambiguous statutesto avoid constitutional problems. See United States v. Stone, 139 F.3d 822,836 (11th Cir. 1998). Recording a police officer is constitutionally protectedspeech, 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).

75) There were no reasonable restrictions present against recording. Broadly

applying FSS 934.03 to forbid recording police without consent is not reasonable.

76) As applied only to the facts in the instant case, it is shown that the Chief

did not likely possess a subjective expectation of privacy. He informed others of

the contents of the conversation both during and after the meeting, he brought


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another into the room to participate in the conversation, a civilian witness was

present, and he made comments about the conversation as part of the public record.

Thus, failing the first prong of the privacy test.

77) The totality of the facts overwhelmingly demonstrates, there was no

expectation of privacy that society as a whole would find reasonable. Thus, failing

the second prong of the privacy test.

78) If anyone at the meeting possessed an expectation of privacy, it would

have been McDonough making a complaint about police abuse acting as a private

citizen. However, the actions of the Chief clear demonstrate he did not believe

McDonough had an expectation of privacy in the communications, so how could

the Chief then himself acting as a public official doing the publics business claim

an expectation of privacy?

79) If it is held that the statute covers 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.

80)Conversely, if the statute is not held to cover the recording of police

officers without their consent, when they have no expectation of privacy, the

application of the statute by the State is unconstitutional, as it does not apply. The

government infringes on protected activity whenever it punishes or threatens to

punish speech.,Bass v. Richards, 308 F. 3d 1081 (10thCir. 2002), and Any form


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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 (10thCir. 2000).

81) Lastly, FSS 934.03 as applied becomes unconstitutionally vague as the

person of ordinary intelligence would be left to guess at its meaning, inhibiting the

free exercise of First Amendment rights.

Vague laws offend several important values. First, because we assume thatman is free to steer between lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a reasonable opportunity to knowwhat is prohibited, so that he may act accordingly. Vague laws may trap theinnocent by not providing fair warning. Second, if arbitrary anddiscriminatory enforcement is to be prevented, laws must provideexplicit standards for those who apply them. A vague law impermissiblydelegates basic policy matters to policemen, judges, and juries for resolutionon an ad hocand subjective basis, with the attendant dangers of arbitraryand 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 meaningsinevitably lead citizens to "steer far wider of the unlawful zone' . . . than ifthe boundaries of the forbidden areas were clearly marked."

Grayned v City of Rockford, 408 U.S. 104 (1972).

C. PRAYER FOR RELEIF

82) It is requested that the lower courts decision in the Order on Motion for

Summary Judgement (DE XX), granting the States Motion for Summary

Judgment (DE XX), and denying McDonoughs Motion for Summary Judgment

(DE XX), or in the alternative, it is requested that the case be remanded to the

lower court for trial.

Documents

Appeal Brief Draft 6