Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

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.

Miami State Attorney Katherine Fernandez-Rundle

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.

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.

Davidson County, TN’s cash bail system under scrutiny

Davidson County, TN’s cash bail system under scrutiny

The American Civil Liberties Union of Tennessee and the Civil Rights Corpsare calling for an end to cash bail in Davidson County, a practice that keeps thousands of people locked up every year because they are poor.

Hedy Weinberg, executive director of the ACLU of Tennessee, and Alec Karakatsanis, executive director of Civil Rights Corps, wrote in an op-ed that bail practices in Davidson County, which is Tennessee’s second-most populous county and has Nashville as its county seat, need reform and that the present practice is likely unconstitutional.

“In 2016, the average amount of secured money bail imposed on people charged with misdemeanors in Davidson County was more than $5,000,” the column said. “Thousands of people are jailed in Davidson County simply because they cannot pay the amount of money demanded in exchange for their liberty.”

In Davidson County, 60 percent of people arrested remain in jail for the entirety of their case, compared with only three percent in New York City and 1.5 percent in Washington, D.C.

Weinberg and Karakatsanis argue that this practice of detaining people who have not been convicted of a crime violates the Due Process and Equal Protection clauses of the 14th Amendment to the United States Constitution and will likely be struck down by a court at some point in the future if reform doesn’t occur.

As Weinberg and Karakatsanis explain: “By making pretrial freedom dependent on access to cash, Davidson County’s secured money bail system creates a two-tiered system of justice, incarcerating the most impoverished while wealthier arrestees are freed. Those who can post the demanded amount of money are able to walk out the doors of the Metro jail and return to their jobs, families and homes. The rest are left to languish in jail, which is devastating for arrestees, their families and their communities.”

Justice reformers have increasingly focused on ending cash bail practices around the country. New JerseyWashington, D.C., and Chicago have largely, if not entirely, abandoned the practice. In Philadelphia, longtime civil rights and criminal defense attorney Larry Krasner, the Democratic nominee for district attorney, has made ending cash bail a key part of his campaign platform.

In Davidson County, any successful bail reform will likely require the support of District Attorney Glenn Funk, who has indicated support for efforts to keep more people out of jail, but seems dubious about ending cash bail. Last year Funk told the Nashville Scene that while he wants “to make sure no one is incarcerated because they are poor,” he’s not yet in favor of eliminating cash bail in the absence of a method to ensure defendants appear for their court dates.

Reform advocates argue, and studies show, however, that cash bail amounts imposed “have no relation either to the amount necessary to ensure appearance or the individual defendant’s ability to pay,” and instead unfairly punishes the poor.

“Cash bail does not do what it claims to do,” Ezra Ritchin of the Bronx Freedom Fund says. “It’s supposed to only address failure to appear, but it doesn’t. What starts as a misdemeanor arrest turns into life destabilization in every way.”

A fund to help people make bail started up in Nashville. Similar bail funds exist in the Bronx, Brooklyn, Chicago and Seattle, reports the Nashville Scene. “And most of their clients don’t skip out on bail,” says Ritchin. In fact, 96 percent of the more than 400 people they’ve bailed out have made all of their court dates.”

Davidson County should consider the op-ed by Weinberg and Karakatsanis to be a clear shot across the bow. The Civil Rights Corp has a string of successful litigation efforts across the county seeking to end the practice of cash bail, most recently in Harris County, Texas.

More in Explainers

Dear Jeff Sessions, prosecuting guns more aggressively won’t make us safer

Jeff Sessions
Flickr user Gage Skidmore

Dear Jeff Sessions, prosecuting guns more aggressively won’t make us safer

Jeff Sessions is at it again. In yet another public statement, the Attorney General has voiced his support for a range of discredited or highly controversial criminal justice policies. This time, Sessions delivered a series of tough-on-crime bromides to the National District Attorneys Association: harsh penalties are the solution to drug addiction; broken-windows policing works; more criminal prosecutions can resolve questions about immigration policies; and prosecutors should seek the most severe charge in every case.

There’s a lot in Sessions’ speech to worry criminal justice reformers and confound academics who study criminal law. To narrow the focus, it’s worth pausing for a moment to consider Sessions’ statements on gun crime and what he gets wrong.

“I want to see a substantial increase in gun crime prosecutions,” Sessions told the assembled state prosecutors. “I believe, as we partner together and hammer criminals who carry firearms during crimes or criminals that possess firearms after being convicted of a felony, the effect will be to reduce violent crime.”

The Attorney General’s call to “hammer criminals” and increase prosecutions for illegal gun possession reflects an unfortunate view of gun control as an enterprise best suited to aggressive criminal enforcement. (In fairness, Sessions’ speech — and most of his public comments — indicate that he generally views aggressive criminal enforcement as the solution to social problems.)

As I have argued elsewhere, criminal gun possession statutes and “gun-centric” policing embody much of what’s wrong with the criminal justice system.

From a civil libertarian perspective, this mode of addressing gun violence is a nightmare: New York City’s stop-and-frisk program, the shooting of Philando Castile, and a range of Fourth Amendment cases show that gun possession crimes serve as an invitation for intrusive, violent policing. From a racial justice perspective, gun-centric policing and gun-crime prosecutions disproportionately affect people of color. And criminal gun possession statutes often carry mandatory minimum prison sentences, yielding lengthy terms of incarceration.

Gun violence in the United States is a serious problem. Full stop.

But, just because there’s a problem, it doesn’t mean that any solution is justified or that any policy response is a good one.

In his powerful new book, Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. describes how progressive black activists in Washington, D.C. inadvertently helped contribute to a racialized system of mass incarceration. Forman emphasizes that these activists were confronting real problems of crime and violence in their communities, but that the response that emerged — harsh sentences and aggressive law enforcement — ultimately hurt those communities and helped cement an underclass of people with criminal records.

Forman’s account is critical to understanding the problem with the Attorney General’s full-throated endorsement of more criminal punishment. Sessions’ comments reflect a troubling argument — he cares about crime victims (as does his audience), and the only way to serve the interests of victims is to pursue harsh punishment and to “hammer criminals.” (It’s worth noting that, even if gun possession might raise the odds of eventual injury, possession itself doesn’t victimize.)

Forman’s account shows that harsh punishment doesn’t always serve victims, and that there are ways to address violence other than more punishment for more people. Recent studies suggest that many victims want a larger role in the criminal justice system and reject a punitive approach. And even preeminent victims’ rights advocate Paul Cassell has been critical of “unjust” sentences that result from mandatory minimum provisions of gun possession statutes.

Critics of mass incarceration have shown that defaulting to more punishment doesn’t necessarily prioritize the voices of victims, and it doesn’t necessarily reduce crime. Prosecutors on the state and local level should remember these lessons and examine other alternatives to addressing violence rather than advancing Sessions’ punitive agenda.

The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

More in Podcasts