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NO. 15-14642-GG
UNITED STATES COURT OF APPEALS
ELEVENTH CIRCUIT

DR. JAMES ERIC McDONOUGH,

Plaintiff/Appellant
v.
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, no. 1:15-cv-20038-CMA
________________________________________________________

BRIEF OF KATHERINE FERNANDEZ-RUNDLE, DEFENDANT/APPELLEE

PAMELA JO BONDI
FLORIDA ATTORNEY GENERAL
David J. Glantz, Senior Assistant Attorney General
Fla. Bar No. 504238
Attorney for Katherine Fernandez-Rundle,
Defendant/Appellee
OFFICE OF ATTORNEY GENERAL
Civil Litigation Division
110 SE 6th Street, 10th Floor
Ft. Lauderdale FL 33301-5001
Telephone: (954) 712-4608
Fax:
(954) 527-3703
E-mail: david.glantz@myfloridalegal.com

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McDonough v Fernandez-Rundle., no. 15-14642-GG

CERTIFICATE OF INTERESTED PERSONS
Pursuant to 11th Cir. R. 26.1-1, counsel for Defendant/Appellee certifies that
Plaintiff/Appellants Certificate of Interested Persons is correct with addition of the
following:
Glantz, David J.

[C1 of 1]

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STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested. Defendant/Appellee believes the order
appealed is consistent with controlling authorities and argument will not assist the
decision process.

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TABLE OF CONTENTS
CERTIFICATE OF INTERESTED PERSONS .............................................C1 of 1
STATEMENT REGARDING ORAL ARGUMENT ................................................i
TABLE OF AUTHORITIES ................................................................................... iii
STATEMENT OF JURISDICTION.......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF THE FACTS ............................................................................... 7
STANDARD FOR REVIEW .................................................................................. 10
SUMMARY OF THE ARGUMENT ...................................................................... 10
ARGUMENT ........................................................................................................... 12
I. (Combined and restated) WHETHER THERE IS A FIRST AMENDMENT
RIGHT TO MAKE SECRET AUDIO RECORDINGS INSIDE A POLICE
STATION. ............................................................................................................... 12
II. (Combined and restated) WHETHER THE HOMESTEAD POLICE STATION
IS A NONPUBLIC FORUM, MAKING IT REASONABLE TO RESTRICT
PLAINTIFF FROM SECRETLY RECORDING CONVERSATIONS THERE
AND TO PROSECUTE PLAINTIFF UNDER FLA. STAT. 943.03 IF HE WERE
TO DO SO AGAIN..................................................................................................17
CONCLUSION ........................................................................................................ 21
CERTIFICATE OF COMPLIANCE ....................................................................... 21
CERTIFICATE OF SERVICE ................................................................................21

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TABLE OF AUTHORITIES
FEDERAL CASES
Allison v. McGhan Med. Corp.,
184 F.3d 1300 (11th Cir. 1999) ...........................................................................10
American Civil Liberties Union v. Alvarez,
679 F.3d 583 (7th Cir. 2012) ........................................................................ 15, 16
Castro v. United States,
540 U.S. 375 ........................................................................................................13
Cinci v. State,
642 So. 2d 572 (Fla. 4th DCA 1994) ..................................................................19
City of Houston, Tex. v. Hill,
482 U.S. 451 (1987) ............................................................................................16
Cornelius v. NAACP Legal Defense and Educational Fund,
473 U.S. 788 (1985) ............................................................................................19
First Def. Legal Aid v. City of Chicago,
319 F.3d 967 (7th Cir. 2003) ...............................................................................18
Houchins v. KQED, Inc.,
438 U.S. 1 (1978) ......................................................................................... 17, 18
Jacobsen v. Bonine,
123 F.3d 1272 (9th Cir. 1997) .............................................................................18
Keating v. City of Miami,
598 F.3d 753 (11th Cir. 2010) .............................................................................16
Kelly v. Borough of Carlisle,
622 F.3d 248 (3d Cir. 2010) ................................................................................16
Migut v. Flynn,
131 Fed.Appx. 262 (11th Cir. 2005) ............................................................ 20, 21
Schneider v. State of New Jersey, Town of Irvington,
308 U.S. 147 (1939) ............................................................................................14

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Seminole Tribe of Florida v. Florida Dept. of Revenue,

750 F.3d 1238 (11th Cir. 2014) ...........................................................................10
Shevin v. Sunbeam Television Corp.,
351 So. 2d 723 (Fla. 1977) ....................................................................................4
Smith v. City of Cumming,
212 F.3d 1332 (11th Cir. 2000) ...........................................................................17
United Savings Association of Texas v. Timbers of Inwood Forest Associates, Ltd.,
484 U.S. 365 (1988) ............................................................................................11
Zemel v. Rush,
381 U.S. 1 (1965) ......................................................................................... 17, 19
FEDERAL STATUTES
28 U.S.C. 1291 .........................................................................................................1
42 U.S.C. 1983 ...................................................................................................3, 20
Fla. Stat. 943.02(2)...................................................................................................14
Fla. Stat. 934.02(2), (3) .........................................................................................12
Fla. Stat. 934.03(1)(a), (c), (2)(d) .........................................................................12
Fla. Stat. 932.02(2).................................................................................................15
Fla. Stat. 934.03 ............................................................................................. passim
Fla. Stat. 934.03(2)(d) ..................................................................................... 13, 15
Fla. Stat. 943.03 ............................................................................................. passim
FEDERAL RULES
11th Cir. R. 26.1-1 .......................................................................................... C1 of 1
Fed. R. App. P. 28(a)(5) ...........................................................................................13
Fed. R. App. P. 32(a)(5) ...........................................................................................21
Fed. R. App. P. 32(a)(6) ...........................................................................................21
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Fed. R. App. P. 32(a)(7)(B) .....................................................................................21

Fed. R. App. P. 32(a)(7)(B)(iii) ...............................................................................21
Fed. R. Civ. P. 56(c).................................................................................................10

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STATEMENT OF JURISDICTION
Jurisdiction lies under 28 U.S.C. 1291 to review the final judgment entered
below.
STATEMENT OF THE ISSUES
I.
(Combined and restated) WHETHER THERE IS A FIRST
AMENDMENT RIGHT TO MAKE
SECRET AUDIO
RECORDINGS INSIDE A POLICE STATION.
II.
(Combined and restated) WHETHER THE HOMESTEAD POLICE
STATION IS A NONPUBLIC FORUM, MAKING IT REASONABLE TO
RESTRICT
PLAINTIFF
FROM
SECRETLY
RECORDING
CONVERSATIONS THERE AND TO PROSECUTE PLAINTIFF UNDER
FLA. STAT. 943.03 IF HE WERE TO DO SO AGAIN.
STATEMENT OF THE CASE
Plaintiff refers to Dr. James Eric McDonough, Plaintiff below.
State Attorney refers to Katherine Fernandez-Rundle, State Attorney,
Defendant below.
R- refers to the district court record. When page numbers are introduced,
they refer to the electronic page number in the header of the document.
Br- will introduce references to the Brief of James Eric McDonough, filed
December 31, 2015, by page number corresponding to the briefs table of contents.
Course of proceedings and disposition below
Plaintiff filed a complaint challenging Fla. Stat. 934.03 on the ground it
prohibits and criminalizes the recording of conversations under certain
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circumstances, as being overly broad and vague both facially and as applied to
[Plaintiff]. R-1, p. 1.
The complaint alleged Plaintiff visited the City of Homestead Police
Department on February 7, 2014 to file a complaint concerning Homestead
Officer Alejandro Murguido who arrested Plaintiff without probable cause in
concert with Detective Aquino. R-1, p. 1.
The complaint alleged Plaintiff met in Chief Alexander Rolles office with
the Chief and Detective Aquino and recorded this conversation in order to have a
record of the meeting, R-1, p. 3, and because he thought it would result in
newsworthy evidence. R-1, p. 1. Plaintiff later published the content of this
meeting. R-1, p. 3. The complaint did not describe how Plaintiff published the
meetings content or what portions he published.
In December 2014, Plaintiff received the following letter from the State
Attorney:
Dear Mr. McDonough:
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 Aquino at the Chiefs offices located at #4 South
Krome Avenue in Homestead, 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 permission of the other party or parties is
a violation of the statute and is a 3rd degree felony.
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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.
Sincerely,
KATHERINE FERNANDEZ RUNDLE
State Attorney
/s/ Jacci Seskin
Assistant State Attorney
R-1-3. (Italics original.)
The complaint alleged Plaintiff has a right under the First Amendment to
record speech by public officials during the course of their official duties. R-1, p.
3. Plaintiff refrained from exercising the right again because the State Attorneys
letter made him feel threatened with possible prosecution for recording and
publishing information of public interest. R-1, p. 4.
In conclusory terms, the complaint alleged Plaintiff has been and will
continue to be irreparably harmed by this threat, which results in the denial of the
Plaintiffs constitutional rights. R-1, p. 4.
As relief under 42 U.S.C. 1983, the complaint sought a declaration that Fla.
Stat. 934.03 violates the First and Fourteenth Amendments facially and as applied
to him, together with injunctive relief barring the State Attorney from enforcing the
statute. R-1, p. 4.
The State Attorney moved to dismiss. R-12. The State Attorney argued
Plaintiff had no First Amendment right to record public officials conducting
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official business in their offices without their knowledge or consent. R-12, p. 10.
The State Attorney asserted that subsection (2)(d) of the statute was a
constitutional policy decision by the Florida legislature to allow each party to a
conversation to have an expectation of privacy from interception by another party
to the conversation. R-12, p. 5, citing Shevin v. Sunbeam Television Corp., 351
So. 2d 723, 726-27 (Fla. 1977).
Plaintiff did not respond to the motion to dismiss.
The district court entered an order dismissing Plaintiffs facial challenge
upon finding the statute may operate constitutionally in some circumstances. R17, p. 4. The district court denied dismissal of Plaintiffs as-applied challenge,
finding there was no binding authority concerning the constitutionality of the
Statutes prohibition on recording non-judicial state employees discussing official
business with a member of the public. R-17, p. 8.
The State Attorney filed an answer and defenses. R-28. The State Attorney
admitted sending a letter to Plaintiff. R-28, p. 2. The State Attorney admitted the
district court had jurisdiction to address Plaintiffs constitutional claims. R-28, p. 2.
The State Attorney denied the remainder of Plaintiffs allegations and claims for
relief. R-38, pp. 1-3.
Plaintiff moved for summary judgment, supported by a statement of
undisputed materials facts and his supporting affidavit. R-30, R-31, R-32, R-32-1.
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The State Attorney filed an opposing response, supported by a statement of

undisputed material facts, an affidavit by Chief Rolle, and a transcript of the
recording made by Plaintiff together with a CD of the recording itself. R-53, R-531, R-53-2, R-53-3, R-53-4, R-53-5, R-54.
The State Attorney moved for summary judgment, supported by a statement
of material undisputed facts incorporating evidence already before the district court
in the State Attorneys response to Plaintiffs motion for summary judgment. R-55,
R-55-1.
The district court issued an order striking the State Attorneys foregoing
pleadings due to their substantial overlap and directing the State Attorney to
submit a single, combined response and cross-motion for summary judgment by
a date certain. R-57. The State Attorney complied. R-58, R-58-1, R-58-2, R-58-3,
R-58-4, R-58-5, R-58-6.
In relevant part, the State Attorney asserted the police department had
interests to protect which made it reasonable to prevent Plaintiff (by threat of
prosecution) from again secretly recording police officials conversations in the
station. Some of the interests were victims and witnesses [who] divulge sensitive
facts and discuss life-threatening situations, and law-enforcement officers [who]
engage in ongoing investigations. R-58, p. 5. Factual support for this contention
was furnished in an accompanying affidavit by Chief Rolle, who averred:
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Within the Homestead Police Department, since at least February 7, 2014 to

the present, victim interviews and police investigations take place on a daily
basis [and] attorneys at times will speak with their clients I have never
expected any conversation to be recorded within the Homestead Police
Department by a civilian unless all parties consented to be recorded.
R-58-3, p. 3.
Plaintiff filed a response in opposition to the State Attorneys motion for
summary judgment and statement of undisputed material facts. R-63, R-64.
The State Attorney filed a reply to Plaintiffs response. R-68, R-68-1.
The district court entered a reasoned order denying Plaintiffs motion for
summary judgment and granting the State Attorneys motion for summary
judgment. R-69. The district found that Plaintiffs covert recording and its
publication constitute protected speech under the First Amendment. R-69, p. 6.
The district court then applied traditional forum analysis framework to the facts
and decided the entire police station is a nonpublic forum as borne out in the
case law. R-69, p. 8.
The district court concluded that
allowing unfettered, covert recording within a police station, without the
consent of all parties to a recorded conversation no less every other
person who is or may come within earshot during the course of the unknown
recording would jeopardize at least some of the various interests
identified by the State Attorney. Therefore, the Court finds the statutes
restriction on Plaintiffs covert recording in a police station, as presented in
this as applied challenge, is reasonable and viewpoint neutral.
R-69, pp. 15-16. (Footnote omitted.)
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The district court entered final judgment for the State Attorney in a separate
document. R-70.
This timely appeal followed. R-71.
STATEMENT OF THE FACTS
The following facts were before the district court on summary judgment.
Plaintiff testified in deposition that on February 7, 2014, accompanied by a
friend, he entered the Homestead Police Station to meet with Chief Rolle in the
latters upstairs office to file a complaint. R-58-5, pp. 33-36. Plaintiff testified by
affidavit he was there to complain about an order enjoining him against repeat
violence and about his subsequent arrest, both (according to Plaintiff) procured by
Officer Murguido as retaliation for an internal affairs complaint. R-49-1, pp. 1-2.
Plaintiff testified he used his cell phone to record Chief Rolles
conversation. R-58-5, p. 35. Plaintiff began recording when he and the friend were
approached by the Chief in a portico outside the latters office. R-58-5, pp. 38, 40.
The Chief shook hands with his visitors, brought them into his office, and closed
the door. R-58-5, pp. 41-42. Plaintiff continued recording. R-58-5, p. 43.
In deposition, Plaintiff boldly proclaimed he did not ask the Chiefs consent
to be recorded: Never asked, never tried, never wanted to, never needed it. R-585, p. 43. Plaintiff did not ask because, in his mind, my recording Chief Rolle
[was] in an official meeting about official city business. R-58-5, p. 52.
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Chief Rolle averred in his affidavit: At no point in time, did I expect that
the conversation would be recordedI believed the conversation would be a
private one. R-58-3, p. 3. The Chief believed the conversation was private
because it concerned the conduct of one of my officers. R-58-3, p. 3. Further, he
testified that within the police station,
victim interviews and police investigations take place on a daily
basisattorneys at times will speak with their clients [and] I have never
expected any conversation to be recorded within the Homestead Police
Department by a civilian unless all parties consented to be recorded.
R-58-3, p. 3.
Chief Rolle testified by affidavit: At no point in time, did I know I was
being recorded. R-58-3, p. 3. Plaintiff acknowledged: I dont think he actually
realized I was recording. R-58-5, p. 43.
Plaintiff testified he continued to record when, about an hour into the
meeting, Detective Antonio entered the office. R-58-5, p. 46. Plaintiff recorded
the conversation until my battery died. We were probably in his office for two to
three hours. I think I got about an hour and a half recorded. R-58-5, p. 46.
The district court found the recording was surreptitious because Plaintiff
did not obtain consent from any of the HPD personnel whose voices were
recorded. R-69, n. 3.

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Plaintiff testified he produced like three to ten minute long U-Tube [sic]
videos from the hour and a half audio recording. R-58-5, pp. 55, 58.1 He
uploaded them to U-Tube. R-58-5, p. 55. The uploading took place in November
2014. R-49-1, p. 3.
The record on summary judgment does not describe how Plaintiff turned
audio into video and it does not clearly describe the content of the uploaded videos.
Plaintiffs affidavit merely states: Plaintiff believes one of the videos showed that
Chief Rolle had committed official misconduct by destroying public records with a
corrupt intent. R-49-1, p. 3. On this evidence, the district court found only that
Plaintiff made an audio recording on his phone and published an edited version of
that recording online. R-69, p. 6.
It is undisputed the State Attorney sent Plaintiff the following letter dated
December 9, 2014:
Dear Mr. McDonough:
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 Aquino at the Chiefs offices located at #4 South
Krome Avenue in Homestead, 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.

Transcript pages 55, 56, and 57 of Plaintiffs deposition are out of order in the
record. They are in the record in the order 55, 57, 56. R-58-5, pp. 56-58.
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Recording a conversation without 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.
Sincerely,
KATHERINE FERNANDEZ RUNDLE
State Attorney
/s/ Jacci Seskin
Assistant State Attorney
R-1-3.
STANDARD FOR REVIEW
This Court will review de novo a grant of final summary judgment in the
light most favorable to the nonmoving party, and applying the same standard as the
district court. Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir.
1999). The standard is whether the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c).
The appellate court may affirm on any ground supported by the record even
if that ground was not considered by the district court. Seminole Tribe of Florida
v. Florida Dept. of Revenue, 750 F.3d 1238, 1242 (11th Cir. 2014).
SUMMARY OF THE ARGUMENT
Unlike law enforcement activities taking place outdoors in public view, this
case concerns a citizen who secured an invitation to a police station, engaged
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officials in conversation, and deliberately concealed from them that an audio

recorder was running. There is no controlling precedent finding a First Amendment
right to make a clandestine recording under such circumstances.
Even if the First Amendment applies, the district court correctly decided that
the inside of the Homestead Police Department is a nonpublic form where
reasonable, content-neutral restrictions on speech may be permitted. The Florida
statutes requirement for consent before an oral communication may be intercepted
is reasonable because it protects sensitive activities taking place inside a police
station and because no law enforcement purpose will be served by allowing
clandestine recordings.
Introduction
The Court will conduct a holistic endeavor to determine a statutes
meaning. United Savings Association of Texas v. Timbers of Inwood Forest
Associates, Ltd., 484 U.S. 365, 371 (1988). We begin by citing pertinent statutory
definitions followed by portions of Fla. Stat. 943.03 applicable to the facts before
the district court on summary judgment:
As used in this chapter:
...
(2) Oral communication means 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 public oral communication uttered at a public meeting or any
electronic communication.
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(3) Intercept means the aural or other acquisition of the contents of any
wire, electronic, or oral communication through the use of any electronic,
mechanical, or other device.
Fla. Stat. 934.02(2), (3).
Interception and disclosure of wire, oral, or electronic communications
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 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;
(d) Intentionally uses, or endeavors to use, 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 a criminal offense] as provided in subsection (4).

(2)(d) It is lawful under this section and ss. 934.04-934.09 for a person to
intercept a wire, oral, or electronic communication when all of the parties to
the communication have given prior consent to such interception.
Fla. Stat. 934.03(1)(a), (c), (2)(d).
ARGUMENT
I. (Combined and restated) WHETHER THERE IS A FIRST
AMENDMENT RIGHT TO MAKE SECRET AUDIO RECORDINGS
INSIDE A POLICE STATION.

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Plaintiffs Statement of the Issues on Appeal, Br-11, raises only the

application of Fla. Stat. 943.03 and what he terms the Free Speech Doctrine.
Consequently, Plaintiff waives the issue of whether his claim of facial invalidity
was properly dismissed. Fed. R. App. P. 28(a)(5) (appellant's brief must contain,
under appropriate headings and in the order indicated ... a statement of the issues
presented for review). Castro v. United States, 540 U.S. 375: Our adversary
system is designed around the premise that the parties know what is best for them,
and are responsible for advancing the facts and arguments entitling them to relief.
Id. at 386, Justice Scalia concurring.
Plaintiff also raises no issue concerning a right of access to the police station
to petition the Chief for redress of a grievance. Nor could he, when the Chief
himself ushered Plaintiff into a closed-door meeting for that very purpose. R-58-5,
pp. 41-42.
This case is not about whether Plaintiff may make consensual recordings in
the police station, because the statute says he may: It is lawful for a person to
intercept a wire, oral, or electronic communication when all of the parties to the
communication have given prior consent to such interception. Fla. Stat.
934.03(2)(d). The district court so noted: Recording in a police station with
consent is not prohibited. R-69, p. 14.

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Nor is this case about whether Plaintiff may record any public oral
communication uttered at a public meeting, which is excluded from the definition
of an oral communication uttered by a person exhibiting an expectation that such
communication is not subject to interception. Fla. Stat. 943.02(2).
Lastly but importantly, this as-applied challenge is not about Plaintiff
uploading U-Tube videos. R-58-5, pp. 55, 58. The exact reason the State
Attorney threatened prosecution was because
you recorded conversations you had with Chief Alexander Rolle and Internal
Affairs Detective Antonio Aquino at the Chiefs offices located at #4 South
Krome Avenue in Homestead, 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 permission of the other party or parties is
a violation of the statute and is a 3rd degree felony.
R-1-3. (Underlining added, italics original.)
Analysis therefore begins with whether the First Amendment2 - when
applied to the facts of this case - gives Plaintiff a right to intercept and record
conversations of others inside the police department without their consent.

The freedom of speech and of the press secured by the First Amendment,
U.S.C.A.Const., against abridgment by the United States is similarly secured to all
persons by the Fourteenth against abridgment by a state. Schneider v. State of
New Jersey, Town of Irvington, 308 U.S. 147, 160 (1939).
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Plaintiff mistakenly relies on American Civil Liberties Union v. Alvarez, 679

F.3d 583 (7th Cir. 2012), cited at Br-9, 11, 25, 33. The Illinois statute there under
review made it a felony to audio record all or any part of any conversation unless
all parties to the conversation give their consentThe statute covers any oral
communication regardless of whether the communication was intended to be
private. Id. at 586. (Internal quotation marks omitted.) The Seventh Circuit
enjoined enforcement because the statute criminalized the nonconsensual
recording of most any oral communication, including recordings of public officials
doing the public's business in public and regardless of whether the recording is
open or surreptitious. Id. Moreover, the activity at issue included among other
things, audiovisual recording of policing at expressive activity eventsprotests
and demonstrationsin public fora in and around the Chicago area. Id. at 588.
[Public fora will be discussed below.]
By contrast to the Illinois statute in Alvarez, Fla. Stat. 932.02(2) does not
make it a crime to intercept any public oral communication uttered at a public
meeting, which is excluded from the definition of an oral communication uttered
by a person exhibiting an expectation that such communication is not subject to
interception. Moreover, Fla. Stat. 934.03(2)(d) makes it lawful to intercept
communication when consent is given by the parties to the communication. Thus,
Alvarez is inapposite.
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Cases involving outdoor police activities in public view are also

distinguishable. Thus, Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010),
cited at Br-9, does not apply because the conduct there was videorecording a traffic
stop on a public street. Id. at 251. City of Houston, Tex. v. Hill, 482 U.S. 451
(1987), cited at Br-10, is distinguishable because it concerned police officers who
encountered a citizen intentionally stopping traffic on a busy street, evidently to
enable a vehicle to enter traffic. Id. at 453. Keating v. City of Miami, 598 F.3d
753 (11th Cir. 2010), cited at Br-19, is irrelevant because the facts there showed
that police officers forcefully dispersed peaceful demonstrators on Biscayne
Boulevard, a public thoroughfare in Miami. Id. at 758.
The district court decided that First Amendment analysis applied because
Plaintiff made an audio recording on his phone and published an edited version of
that recording onlinePlaintiffs recording and publication constitute protected
speech under the First Amendment. See Alvarez, 679 F.3d at 597. R-69, p. 6. As
explained above, the State Attorney contends Alvarez is clearly distinguishable.
Further, the content of the edited version Plaintiff posted online is unclear in the
record. For these and other reasons given above, the State Attorney contends
Plaintiff had no First Amendment right to make nonconsensual audio recordings
inside the Homestead Police Department and the judgment under appeal should be
affirmed on that ground.
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II.
(Combined and restated) WHETHER THE HOMESTEAD POLICE
STATION IS A NONPUBLIC FORUM, MAKING IT REASONABLE TO
RESTRICT
PLAINTIFF
FROM
SECRETLY
RECORDING
CONVERSATIONS THERE AND TO PROSECUTE PLAINTIFF UNDER
FLA. STAT. 943.03 IF HE WERE TO DO SO AGAIN.
Even if the First Amendment applies, the district court reached the right
result by finding the Homestead Police Department is a nonpublic forum where the
application of Fla. Stat. 943.03 is reasonable and content-neutral.
It is generally true that the First Amendment protects the right to gather
information about what public officials do on public property. Smith v. City of
Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). This does not mean that every
government facility must be open for exercise of First Amendment rights. In
Houchins v. KQED, Inc., 438 U.S. 1 (1978), the Supreme Court considered
whether the news media have a constitutional right of access to a county jail, over
and above that of other persons, to interview inmates and make sound recordings,
films, and photographs for publication and broadcasting by newspapers, radio, and
television. Id. at 3. The Court decided the media have no special right of access
to the Alameda County Jail different from or greater than that accorded the public
generally. Id. at 16. Reasoning that the First Amendment does not compel a
government to supply information to the press, id. at 11, the Court stated: The
right to speak and publish does not carry with it the unrestrained right to gather
information. Id. at 12, quoting Zemel v. Rush, 381 U.S. 1, 16-17 (1965). This
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dispels Plaintiffs bold assertion that because the Chiefs conversation might be
newsworthy, R-1, p. 1, Plaintiff could unilaterally decide to intercept and record
it secretly. And it is no answer for Plaintiff to say the police station was publicly
owned or that the Chief invited him there granted a First Amendment right of
access, because not all publicly owned property becomes a public forum simply
because the public is permitted to come and go at the site. Jacobsen v. Bonine,
123 F.3d 1272, 1273 (9th Cir. 1997).
The district court correctly found the police department was a nonpublic
forum where the public and press have no special right of access. In First Def.
Legal Aid v. City of Chicago, 319 F.3d 967 (7th Cir. 2003), the Seventh Circuit
squarely held that the interior of a police station is not a public forum. Id. at 968,
citing Houchins v. KQED, Inc., supra. Thus, no right exists to have the police
notify witnesses that a lawyer is at the front desk, let alone a right to be escorted
inside immediately and to engage in confidential consultations within the police
station. First Def. Legal Aid, 319 F.3d at 973. Additionally, public property may
be limited to persons who advance the goal of the public organization. Id. at 972.
Therefore, a police station may admit those who help it enforce the laws while
excluding those who it believes have a different goal. Id. at 972.
Even if Plaintiffs grievance of police misconduct related to enforcing the
law, the Chief heard and attended to Plaintiffs grievance and there was nothing
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about secretly recording it much less uploading to the Internet several months
later that served a law enforcement goal.
Returning to Plaintiffs theme that his meeting with the Chief could have
turned out to be newsworthy, the Supreme Court has made clear that the right to
speak and publish does not carry with it the unrestrained right to gather
information. Zemel v. Rusk, 381 U.S. 1, 17 (1965). Thus, prohibition of
unauthorized entry into the White House diminishes the citizens opportunities to
gather information he might find relevant to his opinion of the way the country is
being run, but that does not make entry into the White House a First Amendment
right. Id. This applies with equal strength to Plaintiffs desire to gain entry to the
Homestead Police Department to make a clandestine recording.
When, as here, a forum is found to be nonpublic, the restriction of First
Amendment activity there need only be reasonable; it need not be the most
reasonable or the only reasonable limitation. Cornelius v. NAACP Legal Defense
and Educational Fund, 473 U.S. 788, 808 (1985) (Italics original.)
Here, Fla. Stat. 934.03 reasonably restricts a First Amendment right (if
there is one) to record others oral communications by imposing consent as a
condition: Conversations occurring inside an enclosed area or in a secluded area
are more likely to be protected under section 934.02(2). Cinci v. State, 642 So. 2d
572, 573 (Fla. 4th DCA 1994).
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Chief Rolle expressed good reason why he never expected or wanted

clandestine recording to take place inside his department:
Within the Homestead Police Department, since at least February 7, 2014 to
the present, victim interviews and police investigations take place on a daily
basis [and] attorneys at times will speak with their clients I have never
expected any conversation to be recorded within the Homestead Police
Department by a civilian unless all parties consented to be recorded.
R-58-3, p. 3.
Although unpublished, this Courts opinion in Migut v. Flynn, 131
Fed.Appx. 262 (11th Cir. 2005) supports the State Attorneys position that it is
reasonable to restrict interception of a police officers oral communication over the
officers objection. The issue in Migut v. Flynn was whether a tow truck driver was
lawfully arrested under Fla. Stat. 934.03 when he used a handheld tape recorder
to record a traffic stop encounter with a deputy sheriff. The deputy told the driver
to turn off the recorder, the driver refused, and he was arrested. Id. at 263. In the
ensuing lawsuit under 42 U.S.C. 1983, this Court reviewed the district courts
grant of qualified immunity, surveyed Florida case law, and held:
There is no dispute that Migut intentionally intercepted via tape recorder his
conversation with Deputy Sheriff Flynn, and that Deputy Sheriff Flynn did
not consent. Moreover, it was not unreasonable for Deputy Sheriff Flynn to
expect that the conversation would be protected under 934.03(1)(a).
Accordingly, Deputy Sheriff Flynn did not violate Migut's constitutional
rights, and the district court properly dismissed the false-arrest claim against
Flynn based on qualified immunity.

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Migut v. Flynn, 131 Fed. Appx. 262, 267 (11th Cir. 2005). (Internal citation
omitted.) The factual parallel between this case and Migut v. Flynn should
persuade this Court it was reasonable for the State Attorney to threaten Plaintiff
with application of Fla. Stat. 943.03 if he were again to intercept and record
conversations in the Homestead Police Department without consent.
CONCLUSION
For the foregoing reasons, the order appealed should be affirmed.
CERTIFICATE OF COMPLIANCE
This brief complies with Fed. R. App. P. 32(a)(7)(B) because it contains
4,579 words excluding parts exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with Fed. R. App. P. 32(a)(5) and Fed. R. App. P.
32(a)(6) because it is prepared in proportionally spaced 14 point type in a plain
roman style.
CERTIFICATE OF SERVICE
I CERTIFY that on February 15, 2016, copies hereof were furnished
electronically (phd2b05@gmail.com) and by postal mail to James Eric
McDonough, 32320 S.W. 199 Avenue, Homestead FL 33030.
Respectfully submitted,
PAMELA JO BONDI
FLORIDA ATTORNEY GENERAL

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David J. Glantz, Senior Assistant Attorney General

Fla. Bar No. 504238
Attorney for Katherine Fernandez-Rundle,
Defendant/Appellee
OFFICE OF ATTORNEY GENERAL
Civil Litigation Division
110 SE 6th Street, 10th Floor
Ft. Lauderdale FL 33301-5001
Telephone: (954) 712-4608
Fax:
(954) 527-3703
E-mail:
david.glantz@myfloridalegal.com

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