The Fourth District Court of Appeal rendered a recent opinion on rehearing that is intriguing and worthy of consideration. Some contend that a court reaching a new conclusion on rehearing is rare. The initial decision was discussed at length in Surveillance, Conflicting Rights, and Balance (May 2021). There, the court considered a civil appeal, stemming from a criminal accusation. A teen was accused of sneaking into a movie theater, and a parent was called. The police were apparently avoiding arresting the youth. When the parent appeared on the scene, she was recording video on a cell phone. She was asked to stop, told to stop, and yet continued to record both police and others at the scene. When asked if she was recording, she lied to the police at one point.
The parent was arrested for "intercepting oral communications and obstruction without violence," but was not prosecuted. She then filed a civil claim "against the City and the officers for false arrest, declaratory relief, and for violating her civil rights." A federal judge dismissed the civil rights claims, and the case proceeded in state court thereafter. The Florida trial court dismissed the lawsuit, concluding that "the recorded parties had a subjective and reasonable expectation of privacy in their communications." Thus, the arrest pursuant to the "wiretapping statute" was appropriate. That she lied about not recording was also mentioned.
In May, the Fourth District Court of Appeals affirmed the dismissal, but not unanimously (Judges May and Artau were the majority and Judge Warner Dissented). The Court explained that "obstruction" does not require physical interaction. If a police officer is in the "lawful execution of a legal duty" and someone does something that "constituted obstruction or resistance of that legal duty" then the charge may lie. The mother's protestations that she could not be charged because her actions in "no way physically obstructed or impeded" the officer(s) were not persuasive with the court.
The parent sought rehearing, and various groups asked permission to participate in the proceedings as "friends of the court," or amicus curiae. This included The American Civil Liberties Union Foundation of Florida, Inc., The Florida Justice Institute, The Radio Television Digital News Association, The National Press Photographers Association, The South Florida Chapter of the National Lawyers Guild, the Center for Freedom of Information, Society of Environmental Journalists, First Look Media Works, Inc., American Society of Media Photographers, and The Society of Professional Journalists. The decision rendered in May was withdrawn and a new opinion substituted instead. This decision has been labeled as "unanimous," and there is unanimity in the holding. However, each judge "specially concurred" with a written opinion. Each is interesting.
The court explained in its holding that "as a matter of law the officers could not have had a reasonable 'expectation that such communication is not subject to interception under circumstances justifying such expectation' as required by the wiretap statute." Therefore, "there was no probable cause to arrest appellant for violation of the wiretap statute." The court also concluded that the parent's "words and actions did not constitute obstruction of the officers in the performance of their duties," within the context and process presented in this case. It, therefore, reversed the trial court's "summary judgment and remand for further proceedings."
Beyond the court opinion, there are three concurring opinions (one of which also dissents in part); "concurring opinions are not considered precedent." Dunn v. State, 454 So. 2d 641, 642 (Fla. 5th DCA 1984). Thus, while each is instructive and interesting, none is necessarily the law.
One concurrence was authored by the judge that dissented in the May 2021 decision of the court (Warner). This stresses that any "expectation of privacy" by the police officers "could not have (been) a reasonable subjective expectation." In the absence of such an expectation, this concurrence explains, "there was no probable cause to arrest appellant for violation of the wiretap statute." The concurrence explained that the parent's "conduct was verbal and not physical, and her lie about recording did not interfere with the performance of a legal duty," and therefore her conduct was not "obstruction."
The Warner concurrence explains the expectation of privacy. To preserve it, to "exhibit() a subjective expectation of privacy," "the individual (must) shown that 'he seeks to preserve [something] as private.'" Thus, any conclusion of a privacy expectation "can be rejected when there is no evidence the party 'made any effort or otherwise took precautions to keep the conversation private.'" Instructing someone not to record you, as the police and others did in this instance is not sufficient.
It is possible that it is not sufficient specifically for a public official such as a police officer. The concurrence explains that "a law enforcement officer has no reasonable subjective expectation of privacy in conversations he or she has with the public or the arrestee in the performance of the officer's duties in public places." An arrest is a public duty, and "the public has a right to hear the officer's words." This concurrence stressed that to "rule otherwise" would criminalize anyone recording "an interaction with police, whether as a bystander, a witness, or a suspect." The judge explains that society is not "ready to recognize that the recording of those interactions, which include audio recordings, are somehow subject to the officer's right of privacy."
The Warner concurrence relies upon a decision of the First District Court, Department of Agriculture &Consumer Services v. Edwards, 654 So.2d 628 (Fla. 1st DCA 1995), which involved an employee/officer who "secretly recorded a meeting between himself and several other officers." He was "arrested for violation of the wiretap statute" and terminated. The District Court there concluded that none of the officers in that meeting had "a reasonable expectation of privacy which society would recognize."
The Warner concurrence suggests that a different standard might be applied in situations that involve instead "non-public officials." In that instance, the law "compels a finding that there was no reasonable subjective expectation of privacy to the conversations recorded during this incident." This is founded largely upon the reasonableness of any expectation, influenced by the location (on a sidewalk compared to perhaps inside of one's car or home), "physical proximity and accessibility of the premises to bystanders," and even the awareness of a recording device or it being visible. Furthermore, the presence of others who might essentially overhear may be persuasive on the issue of reasonable expectation.
Some may perceive this opinion as more explanatory or descriptive of the potential parameters of the rights of both the recorder and the recorded. However, it is perhaps definitive more in the specific context of recording public officials in what the U.S. Supreme Court has come to call the Public Forum Doctrine, see Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939),("Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”).
I suggested in May that the court's decision might have broader implications as regards the gathering of surveillance video. And, it remains possible that a privacy right might nonetheless be violated even in a public forum if it is the privacy of "non-public officials," and if one's expectation is "reasonable. However, absent individuals in public locations taking "precautions to keep the conversation private," it appears likely that there is no privacy preclusion to recording people as they go about their day. Specifically, this is suggested by the concurrence's discussion of the expectations of a bystander who "approached an officer in the midst of an arrest or detention to engage in conversation." The opinion explains that those who put themselves "within earshot of police officers" are making a choice. Further, those who "choose to speak" are likewise making a choice. Might it be that one that goes outdoors in the age of cellphone cameras likewise makes a choice?
The second special concurrence (Artau) provides an excellent overview of resisting arrest, including an informative discussion of the distinctions between a suspect/detainee and "a mere bystander" to the detention of another. In this instance, the parent was "not the subject of a pending investigation. She was not the detained suspect." This second concurrence cites a reasonably recent Florida Supreme Court decision regarding consent to recording, McDade v. State, 154 So.3d 292 (Fla. 2014).
This provides insight into the "reasonable" expectation discussed by the court. There is an explanation of "visible microphones that captured communications" being contrary to expectations of privacy. The decision also discussed "the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations." There are therefore factual considerations that could make the outcome different in various instances.
The third concurrence (May) noted that there was an argument on rehearing regarding the First Amendment (note the press-related amicus above). The judge noted that those arguments were "not raised in trial court," or even in the appeal, but were "raised for the first time in the . . . motions for rehearing." This is a critical reminder of the necessity to preserve error. Arguments raised by parties for the first time on appeal are rarely considered by a court. Those raised for the first time on a rehearing motion are even less likely to be considered.
This third concurrence also includes a dissent in part. The third judge disagreed with the court's conclusion that there was insufficient probable cause on the resisting arrest charge. The judge strives to distinguish the lower standard of probable cause from the conviction standard ("proof beyond a reasonable doubt") that would be required at trial. This judge relies in large part on the video evidence created by the parent's own efforts. This is thus a reminder of the power of video, and the note in Surveillance, Conflicting Rights, and Balance regarding the potential for appellate review to become more focused upon their own perceptions of evidence or credibility and less upon the deference therein to trial judges.
The third judge reminds that physical obstruction is not required for resisting arrest. A distinction worthy of note, but not dispositive perhaps. The third concurrence (dissent in part) characterizes the parent's "intent" in this instance perhaps intended to "create yet another YouTube video and controversy." The intent, perhaps, is to disrupt and distract.
All three opinions are interesting and each is enlightening in its own method. There is agreement in the outcome and yet one might argue no "unanimity." It is seemingly clear that in the end there is no prohibition on recording police in their performance of duty in the public eye, though the who, when, and how might limit such rights. Likewise, it seems likely that recording of those who interact with police in that setting is likewise not protected in terms of their privacy. It remains less clear how that might implicate the recording of a passerby during such a recording.
Of particular interest is the discussion of the obvious recording, and our essential waiver of privacy when we know of such devices and yet proceed anyway. This underlies various discussions in the opinion. Thus, street corner cameras, store surveillance, and similar are likely to be seen as acceptable to those of us who fail to alter our behavior to avoid them. Our choice is to avoid those patent recording devices in the protection of our own privacy.
