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Court rules Miami prosecutor was wrong to threaten police critic

Court rules Miami prosecutor was wrong to threaten police critic


The U.S. Court of Appeals for the Eleventh Circuit ruled that Miami-Dade State Attorney Katherine Fernandez-Rundle had “no basis in the law” when she threatened to prosecute a man for recording a conversation he had with the Chief of the Homestead Police Department. As a result, James Eric McDonough’s federal lawsuit against Fernandez-Rundle can proceed.

According to the Miami New Times, a police officer allegedly tried to run him off the road, McDonough became an active critic of the Homestead police. McDough regularly filmed the police, criticized them at city meetings, and argued that they should be required to wear body cameras. He also filed multiple harassment complaints against the department. McDonough, who has a doctorate in organic thermochemistry, is also reporter for Photography is Not a Crime, a First Amendment advocacy news site that often films confrontations its members have with police and prosecutors — including of McDonough himself being arrested during a city council meeting.

Miami State Attorney Katherine Fernandez-Rundle

In 2014, McDonough met with Homestead Police Chief Al Rolle and Internal Affairs Detective Antonio Acquino to discuss some of his complaints. During the meeting McDonough handed them some of his files. McDonough then took our his cell phone and recorded their conversation. He later posted portions of the conversation to YouTube.

Rolle later claimed he didn’t know the conversation was being recorded.

State’s Attorney Fernandez-Rundle subsequently sent McDonough a letter saying that what he did during the meeting with Rolle was a felony, and threatened to prosecute McDonough if he ever did it again. In her letter, Fernandez-Rundle cited a Florida statute that prohibits one party, without the consent of the other party to a conversation, to “intercept” communications “uttered by a person exhibiting an expectation that such communication is not subject to interception.”

McDonough responded by suing Fernandez-Rundle in federal court, claiming that the statute in question did not apply to him and that the threat of prosecution violated his First Amendment right to free speech. With respect to the statute, McDonough claimed it didn’t apply because the meeting was a public forum and the police themselves recorded the conversation.

U.S. District Judge Cecilia Altonaga originally ruled in favor of Fernandez-Rundle and said that the State’s Attorney could have McDonough arrested if he did something similar. But the federal circuit court overturned that decision in a 2–1 opinion.

As the court explained:

“At no point did Chief Rolle, or for that matter, any participant in the meeting exhibit any expectation of privacy. Although that easily could have been done, Chief Rolle set no ground rules for the meeting he elected to call. At no point did any one from the HPD suggest that the meeting was confidential or ‘off the record.’ Nor was there advance notice or published or displayed rules that established confidentiality and certainly none that prohibited note taking or recordings. It is therefore clear to us that because Chief Rolle failed to ‘exhibit’ the expectation of privacy that is required by the statute, the government is not entitled to invoke it and McDonough did not violate it.”

Because McDonough did not violate the statute that Fernandez-Rundle claimed he had violated, the court concluded, “the government’s threatened prosecution has no basis in the law.”

The matter was remanded to the district court for further proceedings.

In his dissent, Chief Judge Ed Carnes took issue with the majority’s decision not to rule on whether McDonough’s First Amendment rights had, in fact, been violated, and said the majority should have decided that issue one way or another.

The ruling is another setback for Fernandez-Rundle, who critics accuse of refusing to hold law enforcement accountable for wrongdoing. Recently the local Democratic Party called for her to resign after she refused to prosecute four corrections officers who were on duty when inmate Darren Rainey died. Rainey, 50, smeared feces on himself at the Dade Correctional Institute in June 2012, and guards responded by locking him in the shower. Before he died, other inmates said he was screaming for mercy because the water was boiling hot.