Right To Record Case, Holding Of Possible Municipal Liability Against Sheriff’s Office
Case: Bacon v. McKeithen, Dist. Court, ND Florida 2014
Officer Chad Vidrine, a defendant, pulled over Derrick Bacon, the plaintiff, as part of a routine traffic stop on September 7, 2012. . . . Unbeknownst to Officer Vidrine, Bacon recorded the stop on his cell phone. . . . On November 7, Bacon revealed in open traffic court that he made the recording. . . . Officer Robbins, another defendant, and Vidrine then handcuffed Bacon despite his protest that his actions were constitutionally protected and placed him in the back of their car. . . . They accused Bacon of illegal wiretapping in violation of Fla. Stat. § 934.03. They later removed the handcuffs and allowed Bacon to leave. . . . However, they kept his cell phone as evidence, which they submitted to the State Attorney to determine whether they had probable cause to search the phone. . . . The State Attorney later found that there was insufficient evidence and declined to move forward with the prosecution. . . .
On May 29, 2014, Bacon’s attorney received an email from a representative in the Sheriff’s office, seemingly in response to the allegations in this action, which stated that, until ambiguities regarding “the statute in question” are resolved, “the Sheriff’s Office willenforce [sic] state statutes to the letter of the law.”
Decision: No qualified immunity for the police officers because they should have known that Florida law cannot be interpreted in such a way that makes it illegal to record police. Also, the “municipality” may be on the hook because the email from the Bay County Sheriff’s Office make it appear that the Sheriff’s Office supported the seizure of the cell phone.
Positive Comment: I think the right to record the police has become much clearer over the past five to ten years, and this case shows that.
Negative Comment: The opinion does not address the fact that the cell phone was snatched by law enforcement without a warrant. Rather, the opinion focuses on the lack of “probable cause” to support seizing the cell phone. I fear that this could be taken as tacit approval of police snatching of a cell phone without a warrant (or a specific and factually-established exception to the warrant requirement). It seems to me that the snatching of the cell phone in open traffic court should presumptively be regarded as a 4A violation, on warrant requirement grounds, even in cases where there is probable cause to support the phone’s seizure.
Negative Comment: Looks like the traffic court judge did a bad job controlling his courtroom. If it were my courtroom, then those police officers would have been locked up for contempt of court. Not clear why that didn’t happen.