Dennis Reeves Cooper v. Gordon A. Dillon

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 22, 2005
No. 04-11150 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 01-10119-CV-JLK

DENNIS REEVES COOPER,

Plaintiff-Appellant,

versus

GORDON A. DILLON,
individually and in his official
capacity as Chief of Police of Key West,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 22, 2005)

Before BIRCH, KRAVITCH and GIBSON *, Circuit Judges.

*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
BIRCH, Circuit Judge:

This appeal requires us to determine the constitutionality under the First

Amendment of a Florida statutory provision which makes it a misdemeanor for a

participant in an internal investigation of a law enforcement officer to disclose any

information obtained pursuant to the investigation before it becomes public

record.1 The district court found that the statute did not abridge fundamental

freedoms of speech and of the press guaranteed by the United States Constitution.

Because the statute is a content-based restriction which chills speech that “lies near

the core of the First Amendment,” Landmark Communications, Inc. v. Virginia,

1
The statute in question, FLA . STAT . ch. 112.533(4), reads as follows:
Any person who is a participant in an internal investigation, including the
complainant, the subject of the investigation and the subject’s legal counsel or a
representative of his or her choice, the investigator conducting the investigation,
and any witnesses in the investigation, who willfully discloses any information
obtained pursuant to the agency’s investigation, including, but not limited to, the
identity of the officer under investigation, the nature of the questions asked,
information revealed, or documents furnished in connection with a confidential
internal investigation of an agency, before such complaint, document, action, or
proceeding becomes a public record as provided in this section commits a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s.
775.083. However, this subsection does not limit a law enforcement or
correctional officer’s ability to gain access to information under paragraph (2)(a).
Additionally, a sheriff, police chief, or other head of a law enforcement agency,
or his or her designee, is not precluded by this section from acknowledging the
existence of a complaint and the fact that an investigation is underway.
FLA . STAT . ch. 112.533(4). The proscription of disclosure in this statute applies as long as an
investigation is “active.” See id. at ch. 112.533(2). “[A]n investigation shall be considered
active as long as it is continuing with a reasonable, good faith anticipation that an administrative
finding will be made in the foreseeable future.” Id. However, an investigation is “presumed to
be inactive if no finding is made within 45 days after the complaint is filed.” Id.

2
435 U.S. 829, 838, 98 S. Ct. 1535, 1541 (1978), we REVERSE and REMAND to

the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Plaintiff-appellant Dennis Reeves Cooper is the publisher and editor of Key

West The Newspaper (“the newspaper”), a free weekly newspaper that is

distributed to several hundred locations in Key West, Florida. In a series of articles

published by the newspaper in May and June of 2001, Cooper reported that Robert

Christensen, an internal affairs investigator with the Key West Police Department

(“KWPD”), failed to investigate a complaint filed with the Florida Department of

Law Enforcement (“FDLE”).2 Based on information he collected while writing

these articles, Cooper, in his capacities as a citizen and as the publisher of a

newspaper,3 filed a formal complaint against Christensen with the FDLE for

2
The complaint detailed in Cooper’s articles was filed by Shahdaroba Rodd, a Key West
citizen who alleged that KWPD officer Al Flowers committed perjury by lying in court during
the prosecution of Rodd for a traffic offense. Although Christensen represented to the FDLE
that Rodd’s complaint was unfounded, Cooper reported that Christensen had not in fact
conducted any investigation of Rodd’s complaint.
3
Dillon argues that Cooper acted as a private citizen and that any information the FDLE
shared with Cooper was in his capacity as a complainant and not a newspaper publisher. While
case law does recognize that members of the press have an important place in a free society, they
are afforded no greater First Amendment rights than ordinary citizens, who are free to publish
information as well. See Branzburg v. Hayes, 408 U.S. 665, 704, 92 S. Ct. 2646, 2268 (1972)
(“Freedom of the press is a fundamental personal right which is not confined to newspapers and
periodicals.”) (internal citation omitted); see also Bartnicki v. Vopper, 532 U.S. 514, 525 n.8,
121 S. Ct. 1753, 1760 n.8 (2001) (drawing “no distinction” for First Amendment purposes
between members of the media and a private citizen). Accordingly, we decline to afford any
legal significance to Dillon’s characterization of the capacity in which Cooper acted in this case.

3
Christensen’s alleged failure to investigate and falsification of information in his

report.

Cooper subsequently received two letters from the FDLE. The first letter,

which was addressed to Cooper, indicated that the FDLE had received his

complaint and had instructed Defendant-appellee Gordon A. Dillon to investigate

the matter. The second letter was a courtesy copy of a letter sent by the FDLE to

Dillon requesting that he investigate Cooper’s complaint and report back to the

FDLE within forty-five days. Following his receipt of these letters, Cooper

published a 15 June 2001 article reporting that he had lodged a complaint against

Christensen and that the FDLE had instructed Dillon to investigate the matter

within forty-five days. In a 22 June 2001 “Commentary,” Cooper recounted the

allegations set forth in the previous week’s article and implored Dillon to “tell the

truth [about the result of his investigation] and let the chips fall where they may.”

R2-55 at 3.

On 22 June 2001, the same day that Cooper’s “Commentary” was published,

Dillon swore an affidavit and obtained a warrant for Cooper’s arrest. The affidavit

alleged that Cooper violated F LA. S TAT. ch. 112.533(3)4 by disclosing in his

4
Because the version of FLA . STAT . ch. 112.533(3) that was in place when Dillon
obtained the warrant gave a law enforcement officer the right to inspect his or her own personnel
file at any time, the district court found that the citation to § 112.533(3) in Dillon’s affidavit was
a “scrivener’s error” and that Dillon meant to charge Cooper with a violation of § 112.533(4).

4
articles two items of information he obtained as a participant in an internal

investigation—that Christensen was the subject of an official investigation and that

Dillon had forty-five days to respond to the FDLE. Following his arrest, Cooper

was held in the county jail for approximately three hours and then released on his

own recognizance. The State Attorney subsequently declined to pursue the charges

against Cooper because the statute under which Cooper was charged, F LA. S TAT.

ch. 112.533(3), had been declared unconstitutional.

On 21 December 2001, Cooper filed suit for declaratory and injunctive relief

and damages pursuant to 42 U.S.C. § 1983 for Dillon’s enforcement of F LA. S TAT.

ch. 112.533(4) allegedly in violation of his First, Fourth, and Fourteenth

Amendment rights. Cooper sued Dillon both as an individual and in his official

capacity as Chief of Police of Key West. Dillon, in his individual capacity,

subsequently moved for summary judgment on the grounds that he was entitled to

qualified immunity. He also asserted he was entitled to summary judgment in his

official capacity because Cooper had failed to show that Dillon’s enforcement of

the statute constituted a deprivation of constitutional rights. Cooper then moved

R2-70 at 3 n.11. Prior to 1990, FLA . STAT . ch. 112.533(3) outlawed in broader terms the conduct
outlawed by the current version of FLA . STAT . ch. 112.533(4). This pre-1990 version of §
112.533(3) was found unconstitutional in Hickox v. Tyre, No. 87-8324, slip op. at 1 (S.D. Fla.
Oct. 15, 1990). On appeal, Cooper argues as he did before the district court that Dillon was in
fact attempting to charge him with violating the pre-1990 version of § 112.533(3) even though it
had been found unconstitutional.

5
for partial summary judgment on the ground that F LA. S TAT. ch. 112.533(4) was

unconstitutional. The magistrate judge’s recommendation and report

recommended that Cooper’s motion for partial summary judgment be granted

because F LA. S TAT. ch. 112.533(4) was an unconstitutional content-based

restriction on speech. The district court rejected the magistrate judge’s report,

found that the statute was content-neutral and not unconstitutional, and

consequently granted Dillon’s motions for summary judgment. On appeal, Cooper

argues that the statute is unconstitutional and that Dillon’s enforcement of it

subjected Dillon in his individual and official capacities to liability under 42

U.S.C. § 1983.

II. DISCUSSION

A. Constitutionality of F LA. S TAT. ch. 112.533(4)

“The constitutionality of a statute is a question of law subject to de novo

review.” Doe v. O’Brien, 329 F.3d 1286,1293 (11th Cir.), cert. denied, 540 U.S.

947, 124 S. Ct. 389 (2003).

The First Amendment, made applicable to the states by the Fourteenth

Amendment, provides that “Congress shall make no law . . . abridging the freedom

of speech, or of the press; or the right of the people . . . to petition the Government

for a redress of grievances.” U.S. C ONST. amend. I. These sacrosanct freedoms

6
are widely recognized as necessary to foster the uninhibited self-expression which

is characteristic of our free society. See Watchtower Bible & Tract Soc’y of N.Y.,

Inc. v. Vill. of Stratton, 536 U.S. 150, 165-66, 122 S. Ct. 2080, 2089 (2002);

Procunier v. Martinez, 416 U.S. 396, 427, 94 S. Ct. 1800, 1818 (1974) (Marshall,

J., concurring), overruled on other grounds, Thornburgh v. Abbott, 490 U.S. 401,

109 S. Ct. 1874 (1989). But more importantly, these First Amendment freedoms

are also understood to be essential to the maintenance of our democratic polity,

which depends upon an informed citizenry to hold government officials

accountable for error and abuse and to seek redress and change by lawful means.

See Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S. Ct. 209, 216 (1964)

(“[S]peech concerning public affairs is more than self-expression; it is the essence

of self-government.”); Stromberg v. California, 283 U.S. 359, 369, 51 S. Ct. 532,

536 (1931). Indeed, it was a desire for government accountability in the face of

perceived abuses that ignited the movement toward the foundation of our country,

see T HE D ECLARATION OF INDEPENDENCE para. 30 (U.S. 1776); and this same

desire subsequently inspired the Framers to guarantee the rights to speak, to

publish, and to petition government, see Whitney v. California, 274 U.S. 357, 375,

47 S. Ct. 641, 648 (1927) (Brandeis, J., concurring) (noting that the Framers

believed that “the path of safety lies in the opportunity to discuss freely supposed

7
grievances”), overruled on other grounds, Brandeburg v. Ohio, 395 U.S. 444, 89 S.

Ct. 1827 (1969). Based on this understanding, it has been universally recognized

that one of the primary purposes of the First Amendment is to “protect the free

discussion of governmental affairs” because the maintenance of a responsible

democratic government depends upon it. Landmark Communications, Inc., 435

U.S. at 838, 98 S. Ct. at 1541 (citation omitted); Wood v. Georgia, 370 U.S. 375,

392, 82 S. Ct. 1364, 1374 (1962) (noting that the “purpose of the First Amendment

includes the need: . . . to protect parties in the free publication of matters of public

concern, [including] . . . any just criticism upon [government officials’] conduct in

the exercise of the authority which the people have conferred upon them”) (citation

omitted).

Crucial to the democratic task of holding government officials accountable

and informing the citizenry is a free press. See Cox Broad. Corp. v. Cohn, 420

U.S. 469, 491-92, 95 S. Ct. 1029, 1044 (1975); Sheppard v. Maxwell, 384 U.S.

333, 350, 86 S. Ct. 1507, 1515 (1966) (“The press . . . guards against the

miscarriage of justice by subjecting the police, prosecutors, and judicial processes

to extensive public scrutiny and criticism.”). By investigating government abuse

and providing a forum for citizens to amplify their complaints against government

and inform their fellow citizens, a vigilant, responsible, and, most importantly, free

8
press guarantees that “debate on public issues [can] be uninhibited, robust, and

wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710,

721 (1964). Recognizing the importance of the press in our democratic society, the

United States Supreme Court has found that if the press “lawfully obtains truthful

information about a matter of public significance then state officials may not

constitutionally punish publication of the information, absent a need to further a

state interest of the highest order.” Smith v. Daily Mail Publ’g Co., 443 U.S. 97,

103, 99 S. Ct. 2667, 2671 (1979).

The Court in Smith thus recognized that, despite the centrality of the First

Amendment protections to our democratic society, the freedoms of speech and of

the press can be subjected to certain limitations. Id. The extent to which these

limitations are constitutionally permissible depends upon the kind of restriction

imposed. Because statutes silencing speech before it happens are inimical to the

tenets of free expression underlying a free society, these statutes are characterized

as prior restraints on speech and are subjected to strict scrutiny. See Burk v.

Augusta-Richmond County, 365 F.3d 1247, 1251 (11th Cir. 2004). Because

statutes representing governmental favoritism of preferred speech or suppression of

disfavored speech are likewise antithetical to a free society, these content-based

restrictions are also subjected to strict scrutiny. See Boos v. Barry, 485 U.S. 312,

9
321, 108 S. Ct. 1157, 1164 (1988). Statutes which prescribe the time, place, and

manner in which First Amendment rights may be exercised irrespective of the

message being conveyed are deemed to be content-neutral statutes which are

analyzed under a lower standard of scrutiny. See City of Renton v. Playtime

Theaters, Inc., 475 U.S. 41, 47, 106 S. Ct. 925, 928 (1986).

Thus, the crucial threshold issue in this case is the level of scrutiny that must

be applied to F LA. S TAT. ch. 112.553(4) based on the characterization of the

restriction imposed. Cooper argues that the statute is a prior restraint and/or a

content-based restriction. Dillon argues that the district court properly classified

the statute as content-neutral.

1. Characterization of F LA. S TAT. ch. 112.553(4)

A prior restraint on speech prohibits or censors speech before it can take

place. See Alexander v. United States, 509 U.S. 544, 553, 113 S. Ct. 2766, 2773

(1993). Classic prior restraints have involved judge-issued injunctions against the

publication of certain information. See, e.g., Nebraska Press Ass’n v. Stuart, 427

U.S. 539, 556-58, 96 S. Ct. 2791, 2801-03 (1976). Prior restraints have also been

found where the government has unbridled discretion to limit access to a particular

public forum. See United States v. Frandsen, 212 F.3d 1231, 1236-37 (11th Cir.

2000) (finding prior restraint where a National Park Service licensing scheme gave

10
park official unlimited power to grant or deny permits to protest in the park). A

prior restraint, however, does not exist where a publisher is faced with criminal

sanctions for publishing certain information. See Alexander, 509 U.S. at 553-54,

113 S. Ct. at 2773 (distinguishing between prior restraint and threat of

post-publication punishment).

In determining whether a regulation is content-based or content-neutral,

courts must “look to the purpose behind the regulation.” Bartnicki v. Vopper, 532

U.S. 514, 526, 121 S. Ct. 1753, 1760 (2001). “As a general rule, laws that by their

terms distinguish favored speech from disfavored speech on the basis of the ideas

or views expressed are content based.” Turner Broad. Sys., Inc. v. FCC, 512 U.S.

622, 643, 114 S. Ct. 2445, 2459 (1994). Content-based restrictions are found

where the statute’s prohibition is “directed only at works with a specified content.”

Simon & Schuster, Inc. v. N.Y. State Crime Victims Bd., 502 U.S. 105, 116, 112

S. Ct. 501, 508 (1991). By contrast, content-neutral statutes are those which can be

“justified without reference to the content of the regulated speech.” Ward v. Rock

Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754 (1989) (internal

citations omitted). “[A] regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect on some speakers

or messages but not others.” Ward, 491 U.S. at 791, 109 S. Ct. at 2754.

11
 Based on the foregoing, contrary to Cooper’s contentions, F LA. S TAT. ch.

112.533(4) cannot be characterized as a prior restraint on speech because the threat

of criminal sanctions imposed after publication is precisely the kind of restriction

that the Court has deemed insufficient to constitute a prior restraint. See CBS Inc.

v. Davis, 510 U.S. 1315, 1317, 114 S. Ct. 912, 914 (1994) (distinguishing between

“a threat of criminal or civil sanctions after publication” which “chills speech” and

a prior restraint which “freezes” speech) (citation omitted). That Florida’s

statutory scheme was not a prior restraint is underscored by the fact that Cooper

was able to publish the information he obtained pursuant to the FDLE investigation

without first having to obtain a government-issued license or challenge a

government-imposed injunction. Because the statute did not silence Cooper before

he could speak, it cannot be classified as a prior restraint.

Rather, the statute is content-based because the purpose of the statute is to

stifle speech of a particular content, namely, speech regarding pending

investigations of law enforcement officers. See Simon & Schuster, Inc., 502 U.S.

at 116, 112 S. Ct. at 508. While the district court focused on the fact that the

statute only proscribed the dissemination of information on the basis of how it was

obtained (i.e. pursuant to an investigation), it failed to analyze the statute’s

“purpose” to determine whether it was content-based vel non. See Bartnicki, 532

12
U.S. at 526, 121 S. Ct. at 1760. In articulating the purposes behind the statute,

Dillon argues that the statute has the content-neutral purposes of (1) preventing the

subversion of internal investigations which could result from witnesses

manufacturing false testimony against officers to comport with other complainants;

and (2) protecting against the defamation of wrongfully accused officers. Yet,

based on Dillon’s articulation of each of these rationales, it is clear that the

subversion of an investigation or the defamation of an officer would only take

place if information critical of law enforcement officers learned pursuant to an

investigation was disclosed. Accordingly, the statute cannot be “justified without

reference to the content of the regulated speech” and therefore operates to suppress

ideas of a particular content. Ward, 491 U.S. at 791, 109 S. Ct. at 2754; see also

Kamasinski v. Judicial Review Council, 44 F.3d 106, 109 (2d Cir. 1994) (finding a

statute which prohibited a complainant from disclosing information learned as a

participant of an investigation of a judge to be content-based); Baugh v. Judicial

Inquiry & Review Comm’n, 907 F.2d 440, 444 (4th Cir. 1990) (same).

2. Application of Strict Scrutiny

Based on our characterization of F LA. S TAT. ch. 112.533(4) as a content-

based restriction, it must be subjected to strict scrutiny. See United States v.

Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S. Ct. 1878, 1886 (2000). “If

13
a statute regulates speech based on its content, it must be narrowly tailored to

promote a compelling Government interest.” Id. Dillon argues that the statute is

supported by three compelling state interests: (1) the interest in maintaining the

integrity of the investigative process by shielding potential witnesses from

information which could alter their testimony; (2) the interest in protecting the

reputations of wrongfully accused officers; and (3) the privacy interests of

complainants, witnesses, and persons conducting the investigations. In addition,

Dillon argues that the statute is narrowly tailored to serve these interests because:

(1) it limits only the speech of participants in an investigation; (2) it applies only to

speech obtained pursuant to the investigation; and (3) it prohibits speech only for a

limited time until the investigation becomes public record.

Based on our review of Supreme Court precedent, the state interests

proposed by Dillon are not sufficiently compelling to justify the statute’s

abridgment of First Amendment freedoms.5 We examine each of the state interests

5
Because FLA . STAT . ch. 112.533(4) is constitutionally deficient for lack of compelling
state interests, we need not decide whether the statute is narrowly tailored to serve those
interests. We note that while the statute is appropriately limited to participants, see Landmark
Communications, Inc., 435 U.S. at 837 & n.10, 98 S. Ct. at 1540-41 & n.10, applicable only to
information gleaned pursuant to the investigation, see Seattle Times Co. v. Rhinehart, 467 U.S.
20, 34, 104 S. Ct. 2199, 2208 (1984), and lasts for a presumptively definite duration, see
Butterworth v. Smith, 494 U.S. 624, 632, 110 S. Ct. 1376, 1381 (1990), there is some question as
to whether the statute is narrowly tailored because it may permit an indefinite ban on disclosure.
Although Florida law does provide that an investigation is “presumed” to be completed within
forty-five days, this presumption can be obviated if the investigating officials assert in “good
faith” that the investigation is still active and will conclude in the “foreseeable future.” FLA .

14
proposed by Dillon in turn.

First, the Court has rejected the proposition that the maintenance of the

integrity of an investigative process constitutes a sufficiently compelling

justification for a content-based restriction on speech such as imposed by F LA.

S TAT. ch. 112.533(4). See Landmark Communications, Inc., 435 U.S. at 841, 98 S.

Ct. at 1542 (assuming that confidentiality of proceedings might be a “legitimate”

interest, but finding that it did not constitute a compelling interest). In fact, the

Court in Landmark found that there was no evidence that prohibitions on

disclosure of information actually preserved the integrity of the investigative

process or the witnesses. Id. Dillon’s description of the harm that may have

resulted from Cooper’s disclosures—that Christensen was the subject of the

investigation and that Dillon had forty-five days to investigate—represents the

same kind of unsubstantiated assertions. While the Court has recognized that

secrecy and confidentiality may be constitutionally permissible in the context of

grand jury proceedings, see Butterworth, 494 U.S. at 629-30, 110 S. Ct. at 1380

(noting the importance of secrecy in grand jury proceedings while the grand jury is

STAT . ch. 112.533(2)(b). This clause could allow law enforcement officials to place a permanent
restriction on disclosing information learned pursuant to an investigation. See First Amendment
Coalition v. Judicial Inquiry & Review Bd., 784 F.2d 467, 478 (3rd Cir. 1986) (finding potential
for permanent ban on speech where a participant in a judicial misconduct proceeding could not
divulge certain information until the government chose to make the charges public). Because
FLA . STAT . ch. 112.533(4) is not supported by a compelling state interest, however, we need not
decide whether this dynamic renders the statute constitutionally infirm.

15
impaneled), or in a trial setting, see Seattle Times Co., 467 U.S. at 37, 104 S. Ct. at

2209-2210 (finding that a protective order prohibiting a newspaper from

publishing information it obtained through discovery procedures was not

unconstitutional), the context of an FDLE internal investigation can be

distinguished from such litigation-related activities which historically have been

afforded greater protections for their confidentialty. See Landmark

Communications, Inc., 435 U.S. at 841, 98 S. Ct. at 1542 (finding that secrecy of a

non-grand jury investigation into judicial misconduct was insufficiently

compelling rationale for restriction on speech); see also Butterworth, 494 U.S. at

629-30, 104 S. Ct. at 1380 (suggesting that the function historically served by

grand jury proceedings distinguishes them from other proceedings); Rhinehart,

467 U.S. at 34, 104 S. Ct. at 2208 (noting the difference between disclosing

information obtained through discovery and disclosing information learned in a

non-trial context). Finally, Dillon’s argument that important interests are served by

maintaining the confidentiality of internal investigations is undercut by the fact that

the information in question was divulged by the state itself when the FDLE sent

Cooper a courtesy copy of the letter it sent to Dillon. If maintaining the secrecy of

the information was crucial to the investigative process, the FDLE would not have

released it in the first place. See Landmark Communications, Inc., 435 U.S. at 845,

16
98 S. Ct. at 1545 (noting that the harms associated with dissemination of sensitive

information “can be eliminated through careful internal procedures”); Cox Broad.

Corp., 420 U.S. at 496, 95 S. Ct. at 1047 (stating that the onus is on the state to

keep matters confidential if they do not want them to be disseminated).

Accordingly, the proposed interest in safeguarding the integrity of the investigative

process does not constitute a sufficiently compelling state interest to justify the

proscriptions in F LA. S TAT. ch. 112.533(4).

Second, the interest in protecting wrongfully accused officers from

defamation is insufficient to sustain the statute. As the Supreme Court noted in

Landmark, “[o]ur prior cases have firmly established . . . that injury to official

reputation is an insufficient reason for repressing speech that would otherwise be

free.” Landmark Communications, Inc., 435 U.S. at 841-42, 98 S. Ct. at 1543

(internal citations omitted); see also Butterworth, 494 U.S. at 634, 104 S. Ct. at

1382 (noting that “reputational interests alone cannot justify the proscription of

truthful speech”). The proper remedy for wrongfully accused officers is found in

Florida’s libel laws, see F LA. S TAT. ch. 112.532(3) & 770.01 et seq., rather than a

restriction which operates to suppress members of the press from reporting

information of public concern. Cf. Sullivan, 376 U.S. at 279-80, 84 S. Ct. at 726

(detailing the standard for a libel action that should be used for redress of injury to

17
official reputation). Moreover, the argument that F LA. S TAT. ch. 112.533(4) can

protect the reputations of law enforcement officials is illusory: Cooper could have

connected Christensen’s name with calumny without violating the statute by

simply publishing the reasons for which he filed a complaint against Christensen.

Thus, by imposing a restriction on speech after Cooper could have already

impugned Christensen’s conduct, the statute only serves to “engender resentment,

suspicion, and contempt” about investigative processes rather than protecting

official reputations. Bridges v. California, 314 U.S. 252, 271, 62 S. Ct. 190, 197

(1941). In a free society, the public’s trust in an official’s reputation is won by

greater transparency, not the silencing of criticism. Thus, the interest of

safeguarding the reputations of accused officers purportedly served by F LA. S TAT.

ch. 112.533(4) is not sufficiently compelling to justify the statute’s restrictions.

Third, Dillon cites safeguarding the privacy interests of targets, witnesses,

and complainants in the investigation as a compelling state interest. Supreme

Court precedent has confirmed that interests in privacy are insufficient to support

criminal sanctions for the publication of lawfully obtained information. See

Florida Star v. B.J.F., 491 U.S. 524, 537, 109 S. Ct. 2603, 2611 (1989); Smith, 443

U.S. at 104, 99 S. Ct. at 2671. “If there are privacy interests to be protected in [the

context of FDLE investigations], the State[] must respond by means which avoid

18
public documentation or other exposure of private information.” Cox Broad. Corp.,

420 U.S. at 496, 95 S. Ct. at 1047. Accordingly, the privacy interests of

targets, witnesses, and complainants are not sufficiently compelling to uphold the

restrictions in F LA. S TAT. ch. 112.533(4).

Because the curtailment of First Amendment freedoms by F LA. S TAT. ch.

112.533(4) is not supported by a compelling state interest, the statute fails to

satisfy strict scrutiny and unconstitutionally abridges the rights to speak, publish,

and petition government. This result is dictated not only by Supreme Court

precedent, which has specifically rejected the state interests proposed by Dillon,

but also by the constitutional tenets recognized in the Court’s jurisprudence. In

Mills v. Alabama, the Supreme Court noted that:

the press serves and was designed to serve as a powerful antidote to
any abuses of power by governmental officials and as a
constitutionally chosen means for keeping officials elected by the
people responsible to all the people whom they were selected to serve.
Suppression of the right of the press to praise or criticize
governmental agents and to clamor and contend for or against change
. . . muzzles one of the very agencies the Framers of our Constitution
thoughtfully and deliberately selected to improve our society and keep
it free.

384 U.S. 214, 219, 86 S. Ct. 1434, 1437 (1966). By criminalizing the disclosures

made in Cooper’s articles, F LA. S TAT. ch. 112.533(4) succeeded in penalizing the

very kind of expression which the Mills Court declared was constitutionally

19
essential. As we discussed, our system of representative democracy depends upon

an informed citizenry which can hold government officials accountable and can

seek redress for grievances. This is especially important where, as in this case, a

citizen alleges a local official acted inappropriately. See Wood, 370 U.S. at 390,

82 S. Ct. at 1374 (“Particularly in matters of local political corruption and

investigations is it important that freedom of communication be kept open . . . .”).

If government has the power to indict and incarcerate reporters for publishing

truthful information lawfully obtained about government officials, “timidity and

self-censorship” among members of the press are more likely, Cox Broad. Corp.,

420 U.S. at 496, 95 S. Ct. 1046, which may have the effect that “some continuing

public grievances could never be discussed at all,” Wood, 370 U.S. at 392, 82 S.

Ct. at 1374. We do not lightly invalidate an act of a state legislature. See Georgia

Cemetery Ass’n v. Cox, 353 F.3d 1319, 1321 (11th Cir. 2003) (per curiam). But,

by proscribing speech critical of government officials, F LA. S TAT. ch. 112.533(4)

purports to regulate speech which “lies near the core of the First Amendment”

without a compelling justification for doing so. Landmark Communications, Inc.,

435 U.S. at 838, 98 S. Ct. at 1541. As such, we find F LA. S TAT. ch. 112.533(4) to

be an unconstitutional abridgment of core First Amendment rights.

20
B. Cooper’s § 1983 Claims

Now that we have determined that F LA. S TAT. ch. 112.533(4) is

unconstitutional, we turn to Cooper’s claims that Dillon’s enforcement of the

statute subjected him to liability under § 1983 6 in his individual and official

capacities. The district court granted Dillon’s motions for summary judgment in

both capacities after finding that the statute was not unconstitutional. On appeal,

Dillon argues that he is entitled to qualified immunity in his individual capacity

and that there can be no liability in his official capacity. “We review de novo a

district court’s disposition of a summary judgment motion[,] . . . applying the same

legal standards as the district court.” Storck v. City of Coral Springs, 354 F.3d

1307, 1309 (11th Cir. 2003).

1. Claims Against Dillon in His Individual Capacity

“Qualified immunity insulates government officials from personal liability

[under § 1983] for actions taken pursuant to their discretionary authority.” See

Waldrop v. Evans, 871 F.2d 1030, 1032 (11th Cir. 1989). Provided the

6
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law . . . .
42 U.S.C. § 1983.

21
government official proves that he was acting within the scope of his discretionary

authority, the plaintiff has the burden to show that: (1) the officer’s conduct

violated a constitutional right and (2) the right was clearly established. See Storck,

354 F.3d at 1314 (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156

(2001)). A right is clearly established if, in light of preexisting law, the

unlawfulness of the official’s conduct is “apparent.” See Anderson v. Creighton,

483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987); see also Storck, 354 F.3d at 1314

(“If reasonable public officials could differ on the lawfulness of a defendant’s

actions, the defendant is entitled to qualified immunity.”). This standard does not

require that the specific conduct in question was previously found to be unlawful;

the state of the law need only give an officer “fair warning” that his conduct is

unlawful. Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002). In

this way, qualified immunity operates “to ensure that before they are subjected to

suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206,

121 S. Ct. at 2158.

Based on the foregoing, Dillon was eligible for qualified immunity because

he was acting under his discretionary authority in enforcing F LA. S TAT. ch.

112.533(4) and its unlawfulness was not clearly established. At the time of

Cooper’s arrest, the statute had not been declared unconstitutional, and therefore it

22
could not have been apparent to Dillon that he was violating Cooper’s

constitutional rights. See Michigan v. DeFillippo, 443 U.S. 31, 38, 99 S. Ct. 2627,

2632 (1979) (“Police are charged to enforce laws until and unless they are declared

unconstitutional.”). While Cooper argues that the unconstitutionality of the

pre-1990 version of the statute and Supreme Court precedent gave Dillon “fair

warning” that the new version would also be constitutionally deficient, such an

argument is not persuasive. The legislative history reveals that the current version

of the statute was designed to correct the constitutional problems within the

pre-1990 statute, see F LA. S. S TAFF A NALYSIS & IMPACT S TATEMENT CS/SB 1290

at 2 (Apr. 18, 1990), and Dillon was entitled to assume that the current version was

free of constitutional flaws. See DeFillippo, 443 U.S. at 38, 99 S. Ct. at 2632; see

also Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994) (noting that

“police officers on the street are ordinarily entitled to rely on the assumption that

[legislators] have considered the views of legal counsel and concluded that the

ordinance is a valid and constitutional exercise of authority”). We also reject

Cooper’s argument that the statute was “so grossly and flagrantly

unconstitutional,” DeFillippo, 443 U.S. at 38, 99 S. Ct. at 2632, that Dillon should

have known it was unconstitutional: clearly, in light of the district court’s

disposition of Cooper’s constitutional challenge to the statute, reasonable public

23
officials could have differed as to the constitutionality of the statute prior to this

case. Moreover, Cooper’s alternative argument—that Dillon actually meant to

charge him with a violation of the pre-1990 statute after it had been declared

unconstitutional—similarly fails because the district court found, and we agree,

that the reference to § 112.533(3) in Dillon’s affidavit was a “scrivener’s error”

and therefore not a reference to the pre-1990 statute.7 Accordingly, Dillon is

entitled to qualified immunity in his individual capacity as to Cooper’s § 1983

claims.

2. Claims Against Dillon in His Official Capacity

When suing local officials in their official capacities 8 under § 1983, the

plaintiff has the burden to show that a deprivation of constitutional rights occurred

7
As Cooper notes on appeal, the district court held a hearing to resolve a factual dispute
on this issue. Because the pre-1990 version of the statute was numbered at § 112.533(3) and
outlawed similar conduct as the current § 112.533(4), the district court found that Dillon
inadvertently entered the wrong statute number on his affidavit. The State Attorney, however,
was apparently under the impression that Dillon meant to charge Cooper with a violation of the
pre-1990 version of § 112.533(3) because he declined to prosecute on the grounds that the statute
was deemed unconstitutional in Hickox. In addition, Cooper presented evidence that Dillon used
language in his deposition which tracked the language of the pre-1990 statute. Despite this
evidence, however, a district court’s findings of fact in the context of a qualified immunity claim
are reversed only if they are “clearly erroneous,” Zeigler v. Jackson, 716 F.2d 847, 850 (11th
Cir. 1983) (per curiam), a standard not met on the evidence cited by Cooper here.
8
We note that a suit against Dillon “in his official capacity” is the same as a suit against
the municipality of the City of Key West. See McMillian v. Monroe County, 520 U.S. 781, 785
n.2, 117 S. Ct. 1734, 1737 n.2 (1997). As a municipality, pursuant to Florida law, Key West is
not insulated from suit in this case by sovereign immunity under the Eleventh Amendment. See
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70, 109 S. Ct. 2304, 2312 (1989) (“States
are protected by the Eleventh Amendment while municipalities are not . . . .”) (citing Monell,
436 U.S. 658, 690 n.54, 98 S. Ct. at 2035 n.54 (1978)).

24
as a result of an official government policy or custom. See Little v. City of North

Miami, 805 F.2d 962, 965 (11th Cir. 1986) (per curiam) (quoting Monell v. Dep’t

of Social Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36 (1978)). “A policy is

a decision that is officially adopted by the municipality, or created by an official of

such rank that he or she could be said to be acting on behalf of the municipality . . .

. A custom is a practice that is so settled and permanent that it takes on the force of

law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997).

“Only those officials who have final policymaking authority may render the

municipality liable under § 1983.” Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.

1996) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S. Ct. 1292,

1299 (1986) (plurality opinion)). “[S]tate and local positive law” determine

whether a particular official has final policymaker authority for § 1983 purposes.

See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct. 2702, 2724

(1989). “[M]unicipal liability may be imposed for a single decision by municipal

policymakers under appropriate circumstances.” Pembaur, 475 U.S. at 480, 106 S.

Ct. at 1298.

Based on the foregoing, we must determine whether Dillon had final

policymaking authority for the City of Key West in law enforcement matters and

whether his decision to enforce F LA. S TAT. ch. 112.533(4) against Cooper was an

25
adoption of “policy” sufficient to trigger § 1983 liability. While Dillon does not

address the issue of his policymaking authority under Florida law, he argues that

his enforcement of a state law could not subject the municipality to liability. We

disagree.

First, state law demonstrates that Dillon was the ultimate policymaker for

police procedure in the City of Key West. The Florida Constitution provides that

“[m]unicipalities shall have governmental, corporate and proprietary powers to

enable them to conduct municipal government,” F LA. C ONST. art. VIII, § 2(b), and

the Florida Constitution was amended to confer such municipal powers on the City

of Key West, see id. at art. VIII, § 6(e). Based on this grant of power, the City of

Key West adopted a Code of Ordinances which established that the police chief

has final policymaking authority for police procedure in the City of Key West. See

K EY W EST, F LA., C ODE OF O RDINANCES § 4.05 (establishing position of police

chief as the “head” of the police department and giving him “exclusive control of

the stationing and transfer” of police officers).9 Aside from the powers given to the

police chief by Key West ordinance pursuant to the delegation of municipal power

in the Florida Constitution, there are other indicia in state law that police chiefs in

9
Dillon confirmed this interpretation of his role as police chief by admitting in the record
that he had the ultimate authority to decide whether he wanted to arrest an individual for a
violation of the law.

26
Florida have final policymaking authority in their respective municipalities for law

enforcement matters. See F LA. S TAT. ch. 166.049 (declaring that the police chief is

to determine police procedure for coordinating communication between law

enforcement officers); F LA. S TAT. ch. 870.042(2) (stating that the police chief can

declare a state of emergency in the municipality and assume emergency powers).

State and local law thus confirms that Dillon had final policymaking authority for

the City of Key West in matters of police procedure and law enforcement and thus

his actions could subject the city to § 1983 liability.

Second, based on this authority, we find that Dillon’s decision to enforce

F LA. S TAT. ch. 112.533(4) constituted a deprivation of constitutional rights

sufficient for § 1983 liability. See Board of the County Comm’rs of Bryan County

v. Brown, 520 U.S. 397, 405, 117 S. Ct. 1382, 1389 (1997) (“[P]roof that a

municipality’s . . . authorized decisionmaker has intentionally deprived a plaintiff

of a federally protected right necessarily establishes that the municipality acted

culpably.”). Although the facts before us demonstrate that Dillon enforced the

statute only once against Cooper, “evidence of a single violation of federal rights . .

. c[an] trigger municipal liability.” See Brown, 520 U.S. at 409, 117 S. Ct. at 1391;

accord Martinez v. City of Opa-Locka, 971 F.2d 708, 713 (11th Cir. 1992) (per

curiam). Accordingly, we reject Dillon’s argument that the single enforcement of

27
the statute against Cooper could not constitute a “policy” for § 1983 purposes. See

Martinez, 971 F.2d at 715 (finding monetary damages award against municipality

was appropriate where the City Manager, who had final policymaking authority

with respect to personnel decisions, terminated a city employee for exercising her

First Amendment rights to criticize the City Manager). Similarly, we reject

Dillon’s argument that, based on the reasoning in Surplus Store & Exchange, Inc.

v. City of Delphi, 928 F.2d 788, 791 (7th Cir. 1991), Key West cannot be liable for

enforcing an unconstitutional state statute which the municipality did not

promulgate or adopt. First, § 1983 liability is appropriate because Key West did

adopt the unconstitutional proscriptions in F LA. S TAT. ch. 112.533(4) as its own.

See K EY W EST, F LA., C ODE OF O RDINANCES § 42-1 (“It shall be unlawful for any

person to commit, within the city limits, any act which is or shall be recognized by

the laws of the state as an offense.”). Second, Surplus Store is inapposite because

it involved the enforcement of a state statute by a municipal police officer who was

not in a policymaking position. See 928 F.2d at 788. In this case, by contrast,

Dillon was clothed with final policymaking authority for law enforcement matters

in Key West and in this capacity he chose to enforce the statute against Cooper.

While the unconstitutional statute authorized Dillon to act, it was his deliberate

decision to enforce the statute that ultimately deprived Cooper of constitutional

28
rights and therefore triggered municipal liability. See McKusick v. City of

Melbourne, 96 F.3d 478, 484 (11th Cir. 1996) (finding § 1983 liability could exist

where the decision of how and when to enforce an injunction resulted in

deprivation of constitutional rights). Thus, Dillon’s decision to enforce an

unconstitutional statute against Cooper constituted a “deliberate choice to follow a

course of action . . . made from among various alternatives by the official or

officials responsible for establishing final policy.” Pembaur, 475 U.S. at 483, 106

S. Ct. at 1300; see McKusick, 96 F.3d at 484 (noting that “the City could elect not

to arrest anyone at all”). Accordingly, we find that the City of Key West, through

the actions of Dillon, adopted a policy that caused the deprivation of Cooper’s

constitutional rights which rendered the municipality liable under § 1983.

III. CONCLUSION

In this appeal, Cooper argued that the district court erred in finding that F LA.

S TAT. ch. 112.533(4) was a permissible time, place, and manner regulation of the

freedoms of speech and of the press and the right to petition government. As we

have explained, however, F LA. S TAT. ch. 112.533(4) is a content-based restriction

that chills the exercise of fundamental First Amendment rights without a

compelling justification for doing so and accordingly is unconstitutional. Because

the statute’s unconstitutionality was not clearly established prior to its

29
enforcement, Dillon is entitled to qualified immunity and therefore is shielded

from liability under § 1983 in his individual capacity. However, as a municipal

official with final policymaking authority as to law enforcement matters, Dillon did

expose the City of Key West to § 1983 liability by choosing to enforce the statute

against Cooper. Accordingly, we REVERSE the district court’s grant of summary

judgment in favor of Dillon and REMAND for further proceedings consistent with

this opinion.

30