James Eric McDonough, who lives in the Homestead area, was arrested three times by police on minor charges that were later dismissed.
When McDonough complained about a specific officer involved in his arrests to the Homestead police chief, the city’s top cop invited him to his office and also allowed an internal affairs detective and a friend of McDonough’s to attend the 2014 meeting.
Unbeknownst to Police Chief Alexander Rolle Jr., McDonough secretly recorded a portion of the meeting on his cellphone and then published some of it on YouTube. Rolle later claimed he didn’t know the conversation was being recorded. McDonough soon received a threatening letter from the Miami-Dade state attorney, saying the office would charge him if he did it again because his recording was made without the required consent of the other party under Florida law.
Now, after suing State Attorney Katherine Fernandez Rundle and winning his case at the federal appeals court in Atlanta, McDonough is savoring last week’s legal victory — a precedent that could have implications for everyday citizens who surreptitiously record public officials in seemingly private meetings in Florida.
“I still can’t believe I beat KFR,” McDonough, 39, who represented himself on the appeal, told the Miami Herald Thursday. “I think the appeals court decision gives the right to citizens to record any public official as long as it is in the performance of their official duties.”
The 11th Circuit of Appeals panel, in a 2-1 vote, found that McDonough did not violate the consent provision of Florida law on recording phone or in-person conversations because the Homestead police chief did not openly indicate it was a private meeting. The panel ruled the chief had no expectation of privacy, the Florida statute did not apply to McDonough, and the “government’s threatened prosecution has no basis in the law.”
“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,” according to two of the appellate judges, Peter Fay and Barrington D. Parker Jr.
The Miami-Dade State Attorney’s Office declined to comment about their decision.
The McDonough dispute recalls a similar South Florida recording case — though far more sensational — from 12 years ago that ended tragically. Arthur Teele Jr., a former city and county commissioner who was under indictment on charges that he took bribes while in office, shot and killed himself on July 27, 2005, in the Miami Herald lobby shortly after talking by telephone to then-Herald columnist Jim DeFede in a rambling, emotional conversation. DeFede was fired later after telling executives he had taped Teele without his consent.
The state attorney’s office found the secret taping was an “illegal intercept,” but chose not to charge DeFede, noting that he and Teele were friends and “there appears to have been no malicious intent on the part of Mr. DeFede to violate the privacy rights of Mr. Teele, or to utilize the tape for any commercial purpose or to harm or to embarrass Mr. Teele.”
Under the federal appeals court’s latest ruling, it would now be open to interpretation whether DeFede’s secret recording of Teele was indeed an illegal intercept.
In the McDonough case, the state attorney threatened the Redland father of three, a federal employee who has a doctorate in chemistry, with prosecution for secretly recording his meeting with the Homestead police chief. In her 2014 letter, Fernandez Rundle cited the Florida statute, which “prohibits any party from intentionally intercepting any wire, oral or electronic communication without the consent of the other party.”
The following year, McDonough sued Fernandez Rundle in Miami federal court, claiming the statute did not apply to him and that the threat of prosecution violated his First Amendment right to free speech.
U.S. District Judge Cecilia Altonaga found the Florida recording law applied to McDonough’s situation and then held that it did not violate his constitutional right because the meeting with Chief Rolle was in a police station. Altonaga found 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,” according to the appeals court’s summary of her ruling.
McDonough challenged that decision to the federal appeals court, which did not rule on the First Amendment issue, focusing instead on the Florida recording law itself. The appeals court concluded the state law “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.’” the appeals court found. “The [Florida] Legislature did not want expectations of privacy to count that remained unexpressed,” as in the case of the Homestead police chief’s meeting with McDonough.
“Consequently, the Legislature imposed a simple rule 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,” the appeals court found. “Although that easily could have been done, Chief Rolle set no ground rules for the meeting he elected to call.”
The two appellate judges also found that “the public nature of this meeting became all the more evident when Chief Rolle allowed” a friend of McDonough’s to join them at the police station. Lastly, the judges noted the internal affairs detective told McDonough that “we have all of this [meeting] recorded.”
The appeals court sent the case back to the federal court in Miami “for further proceedings, if necessary, consistent with this opinion.”
In a dissenting opinion, however, a third appellate judge sharply disagreed with his colleagues’ interpretation of the Florida recording law in McDonough’s case.
Chief Judge Ed Carnes noted that his colleagues effectively ordered federal Judge Altonaga to declare that McDonough’s secret recording of the police chief does violate the Florida Wiretap Act and that she should block the state attorney’s office from prosecuting him.
As a result, Carnes said the appeals court’s ruling violates Florida’s sovereignty under the U.S. Constitution. “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 to lecture state officials on state law,” Carnes wrote. “If [ Fernandez Rundle] prosecutes McDonough for his covert recording activities, this [appellate] court says, she will not be conforming her conduct to Florida law.”
Carnes concluded the appeals court should instead decide McDonough’s constitutional free speech issue and “not instruct Florida officials how they must read the law of that state.”