Despite favorable court rulings for citizens and adverse publicity for law enforcement, cops in Florida have not received the memo that they are not allowed to suppress the First Amendment through wiretapping charges.
Not only is a South Florida woman preparing to sue the Broward County Sheriff’s Office after she was violently dragged out of her car for recording a traffic stop last year, a North Florida man is suing the Bay County Sheriff’s Office for arresting him after he admitted in traffic court last year that he had recorded the initial stop.
Derrick Ryan Bacon is seeking unspecified damages in his seven-count, 23-page complaint filed Feb. 11 in U.S. District Court in which he alleges Bay County sheriff’s deputies Ryan Robbins and Chad Vidrine falsely arrested him on wiretapping charges after they learned he recorded Vidrine during a traffic stop nearly 18 months ago.
In his suit, Bacon avers he “lawfully used a cellular phone to video and audio record Vidrine’s interactions with” him. At his bench trial two months later, Bacon informed Judge Maria Dykes about the recording.
Upon conclusion of the trial, in which Dykes found him guilty of speeding, and fined him $125, Bacon says he was approached by Robbins and Vidrine, who began interrogating him about the recording. After again admitting he recorded the encounter, Bacon alleges Vidrine arrested him on Robbins’ orders.
According to the suit, Bacon was placed in a patrol car for an unspecified period time in which “Robbins and Vidrine conspired in an attempt to find a crime with which to charge [him].” Later, Bacon was “ ‘un-arrested’”, and Robbins and Vidrine sent an affidavit to the 14th District State Attorney’s Office seeking to have him charged with wiretapping.
Under Florida law, a person who discloses the “contents of any wire, electronic or oral communication” with another person who has a “reasonable expectation of privacy” and without their consent, faces 1-5 years in prison and a maximum $5,000 fine. Also, the law allows for anyone the subject of an unauthorized recording to sue the person making it for civil damages.
However, in a letter dated Jan. 15, 2013, Assistant State Attorney Megan Ford informed Vidrine charges would not be filed against Bacon due to a lack of probable cause. In her letter, which a secretary read to Photography is Not a Crime over the telephone, Ford specifically said the lack of probable cause was the lack of a recording of the encounter between Bacon and Vidrine.
“The only evidence we have to prove a crime was committed is the defendant’s statement he did record the officer during the traffic stop,” Ford said. “ The state is required to prove corpus deliciti [Latin for “body of crime] and the body of crime was actually committed. Courts have routinely held in cases that confessions are not enough to prove corpus except in cases of child sexual abuse”
“The evidence that is needed is the actually recording,” she added. “As of yet there’s no proof that the recording is on the phone.
Despite Ford’s no probable cause finding, Bacon maintains Robbins and Vidrine continued to give him the impression he would be arrested.
According to the lawsuit, it was not until June 20 that his cell phone was returned, and he was informed of Ford’s no probable cause finding. During those six months, Bacon claims he had to purchase a new cell phone, and hired legal counsel out of fear Robbins and Vidrine “would hunt him down and again falsely arrest him.”
In his suit, Bacon makes claims against the defendants for, among other things, violations of his First, Fourth and 14th Amendment rights under the U.S. Constitution as well as malicious prosecution, and intentional infliction of emotional distress.
Bacon’s case is the latest example of police using their state’s wiretapping law in an effort to harass, and intimidate citizens from recording their encounters with them:
- Anthony Graber faced the possibility of 16 years in prison if convicted on the four wiretapping charges for which he was indicted in the Spring of 2010 for posting on You Tube a recording of a plainclothes Maryland State Trooper stopping him after swearing in and out of traffic, and popping a wheeling on his motorcycle. However, Hartford County Circuit Judge Emory L. Plitt later that Fall dismissed the charges finding “the video taping of public events is protected under the First Amendment.”
- The American Civil Liberties Union was successful in challenging the constitutionality of the Illinois Eavesdropping Act which included a 15-year prison sentence for someone who produced an audio recording of a law enforcement officer without his or her consent. In November 2012, the U.S. Supreme Court decided to let stand the 7th U.S. Circuit Court of Appeals’ decision from the previous May that found the 1961 law unconstitutional.
- A case the 7th Circuit relied on in rendering its opinion was Glik v. Cunniffe, et. al. In Glik, the 1st Circuit affirmed a district judge’s decision denying qualified immunity to the Boston Police Department, and three of its officers in a civil rights suit brought against them by Simon Glik after they charged him with, among other things, wiretapping for filming them arresting a suspect on Boston Commons in 2007. In affirming the lower court’s decision, the appellate court found since the officers did not have a reasonable expectation of privacy, and they lacked probable cause to arrest him, Glik’s constitutional rights were violated. The case set a precedent in determining First Amendment protections extended beyond journalists to citizens in recording public officials in their duties.
The Glik decision is among several cases cited by Bacon’s attorney Christopher Dillingham II of Plymouth. Bacon’s case is assigned to Judge Richard Smoak.
Meanwhile, Brandy Berning of Fort Lauderdale is preparing to sue the Broward County Sheriff’s Office for her arrest last year in which she was dragged out of the car, accused of felony wiretapping, even though she ended up spending the night in jail on a single misdemeanor resisting arrest charges.
Broward County Sheriff General Counsel Ron Gunzenburger is confident his department will prevail in Berning’s suit.
“BSO feels very comfortable that we will prevail in court under the current state of the law when/if this potential litigant sues,” he stated in a comment left on PINAC.