A Florida man won the right to surreptitiously record police officers while making internal affairs complaints without the threat of prosecution when he defeated the Miami-Dade State Attorney’s Office (SAO) in a federal appeals court ruling.
Prosecutors tried to censor the citizen, who published his incriminating recording of a police chief.
A lower court erred by agreeing with Miami-Dade State Attorney Katherine Fernandez Rundle when she sent a written threat of prosecution under Florida’s wiretapping statute to Dr. Eric McDonough, for making a secret recording and publishing it on to YouTube, in a video which you can see below.
Federal judges on the 11th Circuit Court of Appeals said “the government’s threatened prosecution has no basis in the law,” vindicating an important right to record for the public.
Nineteen million Floridians will benefit directly from the published ruling.
And a police chief just lost his “get out of jail free” card from the local prosecutor with whom his department works.
The Homestead Police Department’s Chief Alexander Rolle, and internal affairs Officer Antonio Acquino, were under a Florida Department of Law Enforcement (FDLE) investigation which stalled, when the SAO’s letter declared Dr. McDonough’s recording unlawful, and therefore inadmissible in court.
Now, criminal investigators will have to re-open the case against a Chief of Police desperate to cover up the crimes his department committed, by committing, even more, crimes against a citizen whose only crime, was filing a legitimate grievance over his treatment by a uniformed public official.
“We are hoping to see some arrests out of this,” said John Rivera, president of the Dade County Police Benevolent Association, the union that represents Homestead’s rank-and-file officers. “The chief should go to jail. The captain should go to jail. And [Aquino] should go to jail.”
Since then Dr. McDonough founded the True Homestead page on Facebook where he regularly posts videos of that Florida municipality’s war against the rule of law, and contacted PINAC News and eventually began writing stories on this website.
It all started when Dr. McDonough was falsely arrested by a Homestead officer, Alejandro Murguido, and after a series of problems, his police Chief invited him into his office to make a complaint, which they promptly destroyed.
So, Dr. McDonough used Florida’s public records law – to request a copy of his own complaint, which the police claimed not to have – and later released his cell phone recording of the conversation.
Chief Rolle took the YouTube video to Miami-Dade’s State Attorney and demanded that McDonough should be prosecuted.
The letter from Assistant State Attorney Jackie Seskin tells Dr. McDonough that any future recording activities will invite prosecution, so he sued the Miami-Dade SAO in the federal southern district of Florida court seeking injunctive relief.
Dr. McDonough filed the federal civil rights lawsuit afterward.
Here’s the letter:
After losing at the trial level, Dr. McDonough ran out of money to pay counsel and decided to continue the litigation pro se, ie. as his own attorney.
His detailed knowledge of the subject matter defeated Florida’s Attorney General who defended the SAO, which in Miami-Dade is itself a 300+ lawyer operation.
The three federal judges issued a split ruling on the case, two along the grounds of a limited reversal of the lower court’s Summary Judgement for the SAO, and one dissented arguing that in the light of the illegal retaliation letter’s lack of legal basis in the law, that the court should issue a First Amendment ruling, as doing otherwise stands in violation of the 11th Amendment.
The parties still have a little time left to ask for a rehearing en banc (by the 11th Circuit’s entire court) or a clarification of the ruling.
Meanwhile, the FDLE now has ample reason to continue with its criminal probe into Chief Rolle’s illegal destruction of records, for which he had no good answers when confronted with Dr. McDonough’s recording, and felony official misconduct.
“I feel vindicated,” said McDonough, who is now known in his community as Doc Justice.
Here’s the decision, the video is below: