Florida Police Depts. Distributing False Legal Guidelines To Officers On Wiretapping Law

Florida Police Depts. Distributing False Legal Guidelines To Officers
On Wiretapping Law
North Port Police Chief Kevin Vespia

Now we have proof that police are creating their own laws when it
comes to wiretapping arrests.

A “legal bulletin” that was compiled by the Palm Beach County
Sheriff’s Office and distributed to other law enforcement departments
in the state is informing officers that they are within their legal
rights to arrest citizens who record them, if they specifically state
they do not wish to be recorded.

Nothing could be further from the truth, which is why not a single one
of these arrests  ever made it to trial, much less a conviction.

Still, police are stubbornly clinging to the advice listed in the
January 2010 bulletin, including the North Port Police Department in
Sarasota County, whom arrested Photography is Not a Crime reader Steve
Horrigan on wiretapping charges in January.

Horrigan was jailed for 24 hours, but has yet to be formally charged.
And police have refused to return the cell phone he used to record
them nor have they released the video.

In fact, they claim they have not even seen the video, even though
they assure the media that Horrigan was in the wrong.

The bulletin came to light when Captain Robert Estrada sent it to
Sarasota Herald-Tribune reporter Billy Cox for the article he
published Sunday.

Cox received the document in early February and forwarded it to Mickey
Osterreicher, general counsel for the National Press Photographers
Association.

Osterreicher, in turn, sent Estrada an email with case law
highlighting the inaccuracies in the bulletin, which is not only
viewed as legal guidelines by North Port police officers but was
distributed and discussed during a pre-shift roll call within the
police department.

Estrada never responded to Osterreicher's email. And Cox never
mentioned the bulletin or Osterreicher’s response in his article
Sunday.

Check out the bulletin here in case you missed it above.

Then read Osterreicher’s response below.

I received the January 2010 Legal Bulletin #10-12 that you sent to
Billy Cox and cited as your authority to have stopped, interfered with
and arrested Steve Horrigan while he was recording a matter of public
concern on a city street.

A little research in the 11th Circuit finds a 2000 ruling in a Georgia
case, Smith v. City of Cumming, where the that Court of Appeals agreed
with the plaintiffs that “they had a First Amendment right, subject to
reasonable time, manner, place restrictions, to photograph or
videotape police conduct. The First Amendment protects the right to
gather information about what public officials do on public property,
and specifically, a right to record matters of public interest.”

Also see a more recent case: Albella v Simon, 2011 U.S. Dist. LEXIS
136238 (S.D. Fla. Nov. 28, 2011)

Here, according to the Court "Plaintiff was photographing a police
officer in a public area, something he has a First Amendment right to
do. See Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000)
(“As to the First Amendment claim under Section 1983, we agree with
the [plaintiffs] that they had a First Amendment right, subject to
reasonable time, manner and place restrictions, to photograph or
videotape police conduct. The First Amendment protects the right to
gather information about what public officials do on public property,
and specifically, a right to record matters of public interest.”)
(emphasis added).

The Court went on to say: This raised a First Amendment infringement
claim. “To establish a prima facie First Amendment violation,
[Plaintiff] must show: (1) ‘that a state actor took some adverse
action against [him] (2) because of (3) [his] protected conduct, and
that such action (4) chilled [the] exercise of his First Amendment
rights, and (5) the action did not reasonably advance a legitimate
correctional goal.’” Here, Officer Baez took adverse action (pushing
the camera), because of Plaintiff’s protected conduct (photographing
Officer Baez in a public space), which chilled Plaintiff’s exercise of
his First Amendment rights (he stopped taking pictures). Plaintiff has
therefore set forth a prima facie First Amendment Officer Baez is not
entitled to qualified immunity on Plaintiff’s claims that Officer Baez
violated his First Amendment rights by physically preventing his
photography. When photographing Officer Baez, Plaintiff was exercising
his First Amendment rights. See Smith, 212 F.3d at 1333. In a similar
factual scenario, the Eleventh Circuit denied an officer qualified
immunity when he arrested a person for taking photographs at a public
event, finding there was no connection between the photography, even
if it “could have been used for unlawful activity,” and probable cause
for arrest. Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)
(emphasis in original). That citizens may photograph police officers
in public places has thus been the law in this Circuit for over 15
years (emphasis added).

I think that you need to revise your guidelines and implement
immediate and additional training.

The "Lessons Learned" is very bad advice. The instruction to "Directly
and clearly communicate that the individual does not have your consent
to record your oral communications (thereby asserting your privacy
rights), and give the individual the opportunity to stop recording" is
so absurd I cannot imagine anyone would advise such a thing. In public
you may not, by a mere statement, create a privacy right. There is no
reasonable expectation of privacy for a police officer performing his
public duty in a public place and no statement can create that right.

The "How to Respond" section also gives improper guidance (my comments
are in bold):

Stay calm (good advice) This individual is seeking to provoke the
officer into an inappropriate response (incorrect - the individual is
exercising a clearly established 1st Amendment right).
Remember, all you actions are being preserved in videotape (correct).
LEO should advise the person that the recording of their conversations
is a violation of state law (incorrect as there is no reasonable
expectation of a private conversation in public).
LEO should directly and clearly communicate that the individual does
not have his/her consent to record their oral communication (thereby
asserting privacy rights)(when an officer is speaking in a public
place while performing his public duty there is no reasonable
expectation of privacy not matter what s/he states).
LEO should directly and clearly communicate that the failure to turn
off the camera (or recording device) will result in a felony arrest
(incorrect - this is the type of action that will make the officer &
department liable for a civil rights claim under 42 USC 1983).
In a January 2012 Law Enforcement Newsletter, State Attorney George
Wright discusses "Is Videotaping the Police a Crime? (see attached)

He states:

"All parties must consent to the recording or the disclosure of the
contents of any wire, oral or electronic communication in Florida.
Recording, disclosing, or endeavoring to disclose without the consent
of all parties is a felony, unless the interception is a first offense
committed without any illegal purpose, and not for commercial gain.
Fla. S tat. ch. 934.03. These first offenses and the interception of

cellular frequencies are misdemeanors. State v. News-Press Pub. Co.,
338 So. 2d 1313 (1976).

Under the statute, consent is not required for the taping of a
nonelectronic communication uttered by a person who does not have a
reasonable expectation of privacy in that communication. See
definition of “oral communication,” Fla. S tat. ch. 934.02. See also
Stevenson v. State, 667 So.2d 410 (Fla. Dist. Ct. App. 1996); Paredes
v. State, 760 So.2d 167 (Fla. Dist. Ct. App. 2000) (emphasis added).

Once again I respectfully request that the charges against Mr.
Horrigan be immediately dropped and that you take corrective action to
ensure that incidents like this do not occur again.