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Can You Record Your Meeting With the Chief of Police?

Federal Court Says Yes in Split Decision; Chief Judge Dissents on Federalism Grounds

McDonough v. Fernandez-Rundle, No. 15-14642 (11th Cir. July 12, 2017)

After James McDonough lodged several complaints against a Homestead police officer, the Homestead Chief of Police, Alexander Rolle, invited Mr. McDonough to meet with him in his office to discuss the complaints. Two others were present at the meeting: an Internal Affairs detective and a friend of Mr. McDonough. At the start of the meeting, McDonough placed his cell phone in plain sight on Chief Rolle’s desk and started recording, although he didn’t state that the phone was in recording mode. During the meeting, McDonough gave Chief Rolle several documents, including witness statements about the officer in question.

Some time after the meeting, McDonough filed a public records disclosure request for the documents that he gave Chief Rolle, but the records he received did not include certain documents about the officer’s behavior that he had given the Chief. Rolle denied receiving the documents. To prove he had given Rolle the documents, McDonough posted portions of the recording on YouTube. A month later, McDonough received a letter from Miami-Dade State Attorney Katherine Fernandez-Rundle threatening him with arrest and felony prosecution if he again recorded another person’s conversation without that person’s permission, an act prohibited by section 934.03 of Florida’s “Wiretap Law,” which forbids the recording or interception of any “wire, oral, or electronic communication” without the consent of all parties to the conversation. McDonough filed a pro se civil rights lawsuit against Fernandez-Rundle in her official capacity.

McDonough argued that (1) section 934.03 did not apply to the facts of this case and (2) his actions were protected by the First Amendment. He sought injunctive relief barring the State Attorney from prosecuting him under the statute. The U.S. District Court for the Southern District of Florida granted summary judgment to Fernandez-Rundle on constitutional grounds. But the U.S. Court of Appeals of the 11th Circuit reversed the summary judgment because the Florida Wiretap Law contains exceptions that exempt McDonough’s conduct. First, while section 934.03 does forbid the recording of another person’s “oral communications” without his or her permission, section 934.02(2) limits “oral communication” to that which is “uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . .” Secondly, “oral communication” “does not mean any public oral communication uttered at a public meeting.”

The 11th Circuit noted that Chief Rolle had not laid out any ground rules that McDonough could not record their meeting nor had he shown any other conduct that suggested that the meeting was confidential or “off the record.” Additionally, the 11th Circuit held that the meeting was a “public meeting,” which also removed it from the reach of the Wiretap Law. The court relied on a decision of Florida’s First District Court of Appeal, Dep’t of Agric. & Consumer Servs. v. Edwards, which held that for an oral conversation to be protected under section 934.03, the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.

The 11th Circuit in McDonough found that everyone present at the meeting in Chief Rolle’s office was aware that their conversation could be subject to public records disclosure under Florida’s “Sunshine” laws. The court also noted that an office has a “quasi-public nature,” which does not support a reasonable expectation of privacy. The court held that McDonough had not violated the statute. As it had resolved the case on statutory grounds, the court did not reach the First Amendment issue.

Dissent: Chief Judge Ed Carnes dissented, stating that the majority opinion did not align with Florida appellate decisions interpreting Florida’s Wiretap Law and chided the majority for lecturing state officials on state law, in violation of the Eleventh Amendment. Judge Carnes asserted that the court should have decided the First Amendment issue that McDonough raised.

My take: Judge Carnes has a point about the Eleventh Amendment: the U.S. Supreme Court in 1984 held that the Eleventh Amendment prohibits federal courts from ordering state officials to conform their conduct to state law. Pennhurst State Sch. & Hosp. v. Halderman. That is exactly what the federal court seems to be doing in McDonough, so if this case should get to the U.S. Supreme Court, the Court may hold that the federal court had no jurisdiction over the state law claim. Aside from that, Judge Carnes seems to be mistaken in saying that his colleagues’ analysis of the Florida Wiretap Law is off the mark, an assertion for which, oddly, he doesn’t cite a single Florida case. Having searched diligently for Florida appellate cases supporting Judge Carnes’ interpretation of the statute, and having found none, I have to say that a Florida district court of appeal would probably have agreed with the majority’s analysis of the Florida statute (and, unlike the federal appeals court, would have had jurisdiction as well). See, e.g., Pinellas Cty. Sch. Bd. v. Suncam, Inc. (holding school board had no right to prohibit videotaping of public meeting).

–Tom Regnier, August 1, 2017

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Tom Regnier Appeals, P.A.

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