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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14642
________________________
D.C. No. 1:15-cv-20038-CMA
JAMES ERIC MCDONOUGH,
Plaintiff-Appellant,
versus
KATHERINE FERNANDEZ-RUNDLE,
in her official capacity as State Attorney,
Eleventh Judicial Circuit, State of Florida,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 12, 2017)
Before ED CARNES, Chief Judge, FAY, and PARKER, * Circuit Judges.
*
Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.
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PARKER, Circuit Judge:
Plaintiff-Appellant James Eric McDonough, proceeding pro se, appeals from
a judgment of the United States District Court for the Southern District of Florida
(Altonaga, J.) dismissing his complaint brought pursuant to 42 U.S.C. § 1983.
After McDonough lodged a series of complaints of misconduct against an officer
of the Homestead Police Department (“HPD”), he was invited by Alexander E.
Rolle Jr., the Chief of Police, to a meeting in his office to discuss the complaints.
Unbeknown to Chief Rolle, McDonough recorded a portion of the meeting on his
cell phone and later posted portions of the recording on the internet. Shortly
thereafter, he received a letter from Defendant Katherine Fernandez-Rundle, the
Miami-Dade County State Attorney, informing him that his recording violated the
Florida Security of Communications Act, and that the violation was a felony. See
FLA. STAT. § 934.03 (2016). She forbade him from making future recordings and
threatened him with prosecution if he did so.
McDonough then sued her under § 1983 alleging that the statute did not
apply to him, was facially unconstitutional, and that the threat of prosecution
violated his First Amendment right to free speech. The parties cross moved for
summary judgment and the court granted Fernandez-Rundle’s motion. See
McDonough v. Fernandez Rundle, No. 15-20038-CIV-ALTONAGA/O’Sullivan
(S.D. Fla. Sept. 17, 2015). The court did not parse § 934.03, assuming that it
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applied to the recording. Instead, it analyzed the recording under the First
Amendment nonpublic forum principles because the recording took place in a
police station. Id. at 8-11. The court held that § 934.03 as applied to McDonough
did not violate the First Amendment because it was “reasonable and viewpoint
neutral” and denied McDonough’s request for relief. Id. at 15-16. He appeals and
we reverse.
We hold that McDonough did not violate § 934.03 and, consequently, the
government’s threatened prosecution has no basis in the law. Because we resolve
this case under state law, we need not reach the constitutional issue of whether the
recording is protected by the First Amendment.
BACKGROUND 1
McDonough alleges that in October 2012 he complained to HPD officer
Alejandro Murguido about his reckless driving and violation of traffic laws in the
neighborhood where McDonough lived. McDonough alleges that Murguido then
arrested him in retaliation for the complaints. In response to the arrest,
McDonough filed a complaint against Murguido with the Internal Affairs
Department of the HPD. Shortly thereafter, in April 2013, McDonough was again
arrested for alleged incidents that Murguido claimed had occurred several months
previously. Criminal charges were lodged against McDonough but were
1
Except as otherwise noted, the relevant facts are not disputed.
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eventually dismissed. In January 2014, McDonough filed a complaint with the
HPD specifically alleging that Murguido arrested and harassed him in retaliation
for his complaints about Murguido’s conduct.
In response to these events, Chief Rolle invited McDonough to meet in his
office to discuss the complaints regarding Murguido. McDonough agreed to the
meeting and arrived at the HPD on February 7, 2014 accompanied by a friend,
Albert Livingston, who allegedly witnessed some of the incidents involving
McDonough and Murguido. Chief Rolle did not object to Livingston’s attendance.
A fourth person, Detective Antonio Aquino from the HDP Internal Affairs
department, also joined the meeting at Chief Rolle’s request. No ground rules of
any sort were set for the meeting. Neither Chief Rolle nor anyone else from the
HPD mentioned anything about the meeting being confidential in nature, or that
recording or note taking was in any way discouraged or prohibited. At the start of
the meeting, McDonough placed his cell phone in plain view on the desk between
him and Chief Rolle and proceeded to record their conversation. Chief Rolle saw
McDonough’s cell phone but contends that he was unaware that McDonough was
recording the meeting.
McDonough alleges that during the meeting he gave Chief Rolle documents
containing witness statements about the incidents with Murguido, character
references, and the personnel file of Murguido that contained various accident and
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injury reports. At the meeting, McDonough also filed another Internal Affairs
complaint against Murguido. At one point, McDonough asked if there would be a
record of their discussions, to which Aquino replied, “[W]e have all of this
recorded . . . .” Appendix for Petitioner, McDonough v. Fernandez Rundle, No. 15-
14642 (11th Cir. Dec. 31, 2015) [hereinafter Appendix] at 165.
After the meeting, McDonough filed a public records disclosure request for the
documents concerning Murguido that he alleges he had given to Chief Rolle.
However, when he received documents in response to his request, he discovered
that certain ones concerning Murguido were not included. McDonough then filed
another public records disclosure request specifically for those documents, but
Chief Rolle denied having received them.
To prove that he had given the documents to Chief Rolle, McDonough
published portions of the recording on YouTube. He alleged that the published
portions of the transcript confirmed his account of giving the documents to Chief
Rolle and proved that he was not candid when he denied having received them. A
month later, McDonough received a letter dated December 9, 2014 from
Fernandez-Rundel threatening him with arrest and felony prosecution under §
934.03. The letter stated:
A complaint has been filed with our office stating that on
February 7, 2014, you recorded conversations you had with Chief
Alexander Rolle and Internal Affairs Detective Antonio Acquino at
the Chief’s offices located at #4 South Krome Avenue in Homestead,
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Florida. Florida Statute § 934.03, Interception and Disclosure of Wire,
Oral, or Electronic Communications prohibits any party from
intentionally intercepting any wire, oral, or electronic communication
without the consent of the other party.
Recording a conversation without the permission of the other
party or parties is a violation of the statute and is a 3rd degree felony.
We are bringing this to your attention to prevent any further
violation of Florida law, as a future violation would expose you to
criminal prosecution. Enclosed is a copy of the pertinent law.
Appendix at 13.
In response to the threat of prosecution, McDonough sued under 42 U.S.C. §
1983, alleging that section 934.03 did not apply to him and that if it did, it violated
the First Amendment. He sought injunctive relief barring the State Attorney from
prosecuting him under the statute. As noted, the parties cross moved for summary
judgment and the district court denied McDonough’s motion and granted
Fernandez-Rundle’s motion, essentially on constitutional grounds. See
McDonough, No. 15-20038-CIV-ALTONAGA/O’Sullivan at 16.
Because both parties agreed that McDonough had a right to record under the
First Amendment, the district court reasoned that the dispositive issue was what
level of scrutiny should apply under the First Amendment. The court concluded
that the nonpublic forum analysis applied because the recording took place in the
interior of a police station, a nonpublic forum. Id. at 5-11. Under the nonpublic
forum analysis, a government’s decision to restrict access “can be based on subject
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matter and speaker identity so long as the distinctions drawn are reasonable . . . and
are viewpoint neutral.” Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473
U.S. 788, 806 (1985); Uptown Pawn & Jewelry, Inc. v. City of Hollywood, 337
F.3d 1275, 1280 (11th Cir. 2003); United States v. Belsky, 799 F.2d 1485, 1489
(11th Cir. 1986). Applying these principles, the court held that prohibiting covert
recording in a police station is reasonable and viewpoint neutral because the
purpose of a police station is to carry out law enforcement responsibilities. See
McDonough, at 11. The district court granted summary judgment in favor of the
State Attorney and this appeal followed. We review de novo a grant of summary
judgment and the legal principles on which it is based. See Smith v. Owens, 848
F.3d 975, 978 (11th Cir. 2017); Ellis v. England, 432 F.3d 1321, 1325 (11th Cir.
2005). 2
2
As an initial matter, Fernandez-Rundle contends that McDonough lacks standing.
Standing requires that: (1) the plaintiff must have suffered an injury-in-fact; (2)
there must be a causal connection between the injury and the challenged conduct;
and (3) redressability. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(citations omitted). We conclude that McDonough has sufficiently alleged these
elements because the State Attorney threatened to arrest and prosecute him if he
made a similar recording in the future. The letter from the State Attorney warns
explicitly that “a future violation would expose you to criminal prosecution,” and
refers to the fact that McDonough recorded his conversation with Chief Rolle and
Acquino. Appendix at 13. It also emphasized that his action was a “violation” of
Florida Statute § 934.03 and is therefore “a 3[rd] degree felony.” Id. It is well-
settled that “an actual injury can exist when the plaintiff is chilled from exercising
her right to free expression or forgoes expression in order to avoid enforcement
consequences.” Harrell v. Fla. Bar, 608 F.3d 1241, 1254 (11th Cir. 2010) (citing
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DISCUSSION
The district court did not reach what we determine is a dispositive issue:
whether § 934.03 even applies to McDonough. We hold that it does not. The
Section, titled “Interception and disclosure of wire, oral, or electronic
communications prohibited,” provides:
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; . . .
c) Intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communication,
knowing or having reason to know that the information was obtained
through the interception of a wire, oral, or electronic communication
in violation of this subsection; . . . shall be punished as provided in
subsection (4).
FLA. STAT. § 934.03 (2016). Section 934.02 in turn defines “oral communication”
as
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
Pittman v. Cole, 267 F.3d 1269, 1283 (11th Cir. 2001)). We have little difficulty
concluding that McDonough suffered an injury which would be redressed by an
injunction. McDonough has alleged that he would have to choose between
foregoing his First Amendment speech rights or risking a felony prosecution. This
injury-in-fact is directly traceable to the letter threatening prosecution under §
934.03. Redressability is also sufficiently alleged because an injunction barring
such prosecution would redress McDonough’s injury. See Lujan, 504 U.S. at 560.
Accordingly, McDonough has standing to pursue his claim.
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public oral communication uttered at a public meeting or any
electronic communication.
FLA. STAT. § 934.02 (2016) (emphasis added).
Section 934.02 does not apply to the recording of all oral communications.
It is expressly limited to communications “uttered by a person exhibiting an
expectation that such communication is not subject to interception . . . .” FLA.
STAT. § 934.02 (emphasis added). “Exhibit” means “to show externally,” “to
display” and “to demonstrate.” See WEBSTER’S II NEW RIVERSIDE
UNIVERSITY DICTIONARY (3rd ed. 1994) (defining the word “exhibit”).
The Florida Legislature’s choice of this verb is telling: it required that the
expectations of privacy needed to trigger application of the statute must be
exhibited; in other words they must be “shown externally” or “demonstrated.” The
Legislature did not want expectations of privacy to count that remained
unexpressed. Consequently, the Legislature imposed a simple requirement that the
expectation be “exhibited”. At no point did Chief Rolle, or for that matter, any
participant in the meeting exhibit any expectation of privacy. Although that easily
could have been done, Chief Rolle set no ground rules for the meeting he elected to
call. At no point did any one from the HPD suggest that the meeting was
confidential or “off the record.” Nor was there advance notice or published or
displayed rules that established confidentiality and certainly none that prohibited
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note taking or recordings. It is therefore clear to us that because Chief Rolle failed
to “exhibit” the expectation of privacy that is required by the statute, the
government is not entitled to invoke it and McDonough did not violate it.
The recording also falls under an exception carved out in section 934.02 for
communications “uttered at a public meeting.” FLA. STAT. § 934.02. McDonough
was a member of the public who attended the meeting at Chief Rolle’s invitation.
The public nature of this meeting became all the more evident when Chief Rolle
allowed Livingston, a second and uninvited member of the public, to attend. In
Dept. of Ag. & Con. Servs. v. Edwards, 654 So.2d 628, 632-33 (Fla. 1st DCA
1995), the court found that the fact that several people were present at a meeting
rendered any subjective expectation of privacy unreasonable. Here, there were at
least four participants present: two members of the public, and two public officials
also attended the meeting in the performance of their official duties. Moreover, the
topic of their meeting was one of acute public interest: citizens discussing
allegations of possible police misconduct with the chief of police. The fact that the
content of the meeting would likely be subject to public record disclosure is
underscored by the fact that Aquino assured McDonough that “we have all of this
recorded, what you stated . . . .” Appendix at 165.
Furthermore, in addition to the fact that an expectation of privacy must be
exhibited, the statute also requires that the “circumstances” must “justify [an]
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expectation” of privacy. FLA. STAT. § 934.02. If no privacy-related ground rules
were established in advance of this public meeting, then circumstances that could
justify an expectation of privacy do not exist. This conclusion is firmly grounded
in Florida law. All the attendees were charged with knowledge that the content of
their conversation could be subject to public records disclosure laws. See FLA.
STAT. § 286.011 (2012) (Florida’s Government in the Sunshine Law). As the
Florida Supreme Court has emphasized, the “Florida Constitution contemplates
that public business is to be conducted in the ‘sunshine.’” Edwards, at 631; see
also FLA. CONST. art. II, § 8. Based on this open-government premise, the facts
that all attendees of the meeting were either public employees acting in furtherance
of their public duties, or members of the public discussing a matter of public
interest, undermines any objective expectation of privacy.
The Florida Supreme Court has interpreted § 934.02 to require “a reasonable
expectation of privacy,” which includes “one’s actual subjective expectation of
privacy as well as whether society is prepared to recognize this expectation as
reasonable.” State v. Inciarrano, 473 So.2d 1272, 1275 (Fla. 1985) (citing Shapiro
v. State, 390 So.2d 344 (Fla. 1980), cert. denied, 450 U.S. 982 (1981)) (emphasis
in original). Thus, in Inciarrano, a criminal defendant who murdered a victim in
an office meeting moved to suppress a recording that the victim made of the
meeting. The Florida Supreme Court held that even though the defendant had a
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subjective expectation of privacy, there was no reasonable objective expectation of
privacy because the meeting took place in an office, which the court noted as
having a “quasi-public nature.” Inciarrano, 473 So.2d at 1274. Other Florida
decisions support our conclusion. See e.g., State v. Smith, 641 So.2d 849, 852 (Fla.
1994) (no reasonable expectation of privacy where recorded conversation was held
in the back of a police car); Edwards, 654 So.2d at 632-33 (no reasonable
expectation of privacy where the recorded conversation was between three police
officers in an office meeting about employment grievances).
CONCLUSION
We hold that because the recording on February 7, 2014 falls outside of the
definition of “oral communication” in section 934.02, McDonough did not violate
the statute and it imposes no restriction on his use of the recording he made at that
meeting.3 For the foregoing reasons, the judgment of the district court is reversed
and the matter is remanded to the district court for further proceedings, if
necessary, consistent with this opinion.
3
We are not called on to reach the constitutional issue of whether the recording is
protected by the First Amendment. See BellSouth Telecommunications, Inc. v.
Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001) (noting the
“longstanding principle that federal courts should avoid reaching constitutional
questions if there are other grounds upon which a case can be decided.”)(citing
Santamorena v. Ga. Military Coll., 147 F.3d 1337, 1343 (11th Cir. 1998)).
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ED CARNES, Chief Judge, dissenting:
Because James McDonough covertly recorded a conversation with the police
chief during a meeting, he received a letter from the State Attorney’s Office
threatening, in no uncertain terms, to prosecute him for violating Florida’s Wiretap
Act if he engaged in similar recording activity in the future. Because of the threat,
McDonough filed this lawsuit seeking a declaratory judgment that it would violate
the First Amendment to prosecute him for covertly recording the chief or other law
enforcement authorities in the same or similar circumstances, and also asking for
an injunction prohibiting the State Attorney from prosecuting him.
Instead of deciding whether the threatened prosecution violates the First
Amendment and the State Attorney should be enjoined, the Court tells
McDonough not to worry about it. He shouldn’t worry about it because what he
did before and wants to do again does not, in the Court’s view, violate the Florida
Wiretap Act. That will come as news to the State Attorney and to some of us who
have read the various (and varied) Florida appellate court decisions interpreting
that act.
The Court remands this case to the district court for further proceedings
consistent with this opinion “if necessary.” McDonough wants to do something
that the State Attorney has threatened to prosecute him for doing. There are, I
suppose, two possibilities about whether more will be necessary on remand and, if
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so, what more. One possibility is that the State Attorney will read the opinion and
be persuaded by it, apologize for bothering McDonough, and assure him that he
can continue to covertly record conversations in circumstances like those that
prompted her unfriendly letter to him in the first place.
The second possibility is that the State Attorney will not disavow her intent
to prosecute McDonough if he commits this type of conduct again in the future. If
that is the situation, McDonough will be back where he started, except that he has
been told not to bother this Court with his constitutional claim. The only way for
him to get protection from prosecution is for the district court to enjoin the State
Attorney from prosecuting him on the ground that this Court has determined that
his conduct does not violate Florida law. To conduct further proceedings
“consistent with this opinion” the district court will have to declare that
McDonough’s conduct does not violate the Florida Wiretap Act and enjoin the
State Attorney from prosecuting him. Failing to do that would be “[in]consistent
with this opinion” and its holding that the conduct in question is not contrary to
Florida law.
In order to comply with this Court’s remand instructions, the district court
will have to do what the Supreme Court has unequivocally held that federal courts
cannot do, which is lecture state officials on state law. The reason they cannot do
that, the Court has explained, is that: “[I]t is difficult to think of a greater intrusion
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on state sovereignty than when a federal court instructs state officials on how to
conform their conduct to state law. Such a result conflicts directly with the
principles of federalism that underlie the Eleventh Amendment.” Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 911 (1984). This
Court has done what Pennhurst instructs us not to do, which is tell the State
Attorney “how to conform [her] conduct to state law.” If she prosecutes
McDonough for his covert recording activities, this Court says, she will not be
conforming her conduct to Florida law.
To avoid deciding a First Amendment issue, the Court violates the Eleventh
Amendment. While federal courts “should avoid reaching constitutional questions
if there are other grounds upon which a case can be decided,” BellSouth
Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001),
we cannot do so at the Eleventh Amendment’s expense, see Pennhurst, 465 U.S. at
121–23, 104 S. Ct. at 919–20 (“[C]onsiderations of policy cannot override the
constitutional limitation on the authority of the federal judiciary to adjudicate suits
against a State.”). Because of Pennhurst and the principles it espouses, I cannot
join the constitutional avoidance effort in this case. We should, as a Court, reach
and decide the First Amendment issue and not instruct Florida officials how they
must read the law of that state.
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