FL School Board Attorney Tried to Persuade Prosecutor to File Felony
Behind closed doors in secret meetings, an attorney for a Florida school board appears to have met with a local state attorney in the hopes to pursue felony criminal charges against PINAC reporter Jeff Gray.
According to emails recently obtained through a public records request, it was revealed that St. Johns County School Board Frank Upchurch III planned a meeting with State Attorney R.J. Larizza in the hopes of keeping Gray from exercising his Constitutional rights to record public officials as well as to obtain public records.
The emails between Upchurch and Larizza were sent in October 2015 as Gray was investigating public record access to school bus maintenance reports.
The email conversation contained the subject heading “eavesdropping statute.”
The request for public records was simple: All emails which included both Upchurch and Gray’s name.
As of today, it has still not been confirmed if the two attorneys even met as they had planned, but no charges have been filed against Gray.
But the school board filed a lawsuit against Gray two months after the email conversations, claiming Gray’s attempt to obtain public records were “antagonistic and disruptive to the lawful, orderly and safe operation.”
A Judge’s Ruling
Last week, a judge ruled that the lawsuit was reasonable and allowed it to partially proceed despite Gray’s counterclaim that it was a SLAPP lawsuit, which stands for strategic lawsuit against public participation and solely intended to silence critics.
According to the St. Augustine Record:
Gray claimed the School Board’s complaint against him, filed Dec. 7, is a strategic lawsuit against public participation — called a SLAPP — a lawsuit intended to censor, intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
However, Judge Howard Maltz of the 7th Judicial Circuit Court on Thursday denied Gray’s Dec. 29 anti-SLAPP motion for summary judgment in a hearing inside his chambers. In partially granting the School Board’s Jan. 19 cross-motion for summary judgment and deeming its lawsuit not unfounded, Maltz gave Gray 30 days to provide affirmative answers to the complaint. Motions regarding attorneys’ fees were also withdrawn.
Gray has yet to file a response to the School Board’s complaint. His attorney, Lesley McKinney, had argued Thursday it was proper procedure to first submit a motion for summary judgment, rather than affirmative defenses, in potential anti-SLAPP cases.
The complaint requests a definitive judicial declaration on the validity of the School District’s public records procedures; issuance of an injunction against Gray for continuing to defy them; and recovery, as damages for malicious prosecution and abuse of the process, of attorney fees incurred in the School Board’s successful defense of Gray’s lawsuit.
Gray is widely known for his Honor Your Oath YouTube channel where he posts videos of his interactions with public officials. His interactions are never aggressive and he always calm, nor does he ever lose his demeanor – even when arrested.
Gray always keeps his composure even when being threatened with arrest or being arrested, which is evidenced by his videos.
However, the emails show that Upchurch planned to base his rationale for wanting Larizza to pursue charges against Gray on the case “Guilder v. State, 899 So. 2d 412“.
However, Upchurch failed to do any real due diligence in researching the matter and framed “Guilder v. State” case to meet his needs and assert similarities where none existed.
Florida is a two-party consent state for recording conversations. However, that is only if the conversation is not in a public place, where no expectation of privacy applies.
But under closer examination, we can see the disparities and dissimilarities between these two cases.
In the Guilder case, the man secretly recorded people, while in contrast, Gray always holds his iPhone and other devices in an upfront and obvious manner. Gray always carries more than one camera and his iPhone to record his interactions with public officials.
Gray’s cameras are always visible and never hidden. Furthermore, none of these public officials had any expectation of privacy. They were all on public property where no expectation of privacy exists.
As seen in the image on the right, Gray attaches his cameras around his neck. Both cameras have a visible red light showing they are actively recording. The camcorder has a bright yellow frame around it’s lens, which was painted by Gray in or highlight the device more effectively.
In the Guilder case, the man went to private property to speak with jury members who had decided his son was guilty for burglary.
Gray, on the other hand, does not record people “surreptitiously” as in the Guilder case, but he also records public officials in public areas who are acting in their public capacities.
It is a First Amendment protected right according to the 11th Circuit Court of Appeals, which encompasses Florida, in a ruling known as Smith v Cummings. The court found there is a First Amendment right of the public to record what public officials do on public property. It also extended the definition of “the press” to include the public and continued by providing a definition for public areas as lobbies, roadways and other areas with public access of public buildings.
Upchurch attempted to court Larizza by implying that Gray has had “numerous run-ins with law enforcement”.
But missing from the discussion was that while Gray has been arrested for exercising his right to Freedom of the Press, he has yet to have a single charge actually stick. Upchurch was attempting to have Larizza pursue felony wiretapping charges for each school official seen on video.
The school board in it’s suit against Gray is attempting to enjoin, in prior restraint, him from reporting on the activities of public interest. Preventing Gray from his investigative reporting here at PINAC. An attempt to enjoin a reporter from traditional medium as TV or Newspaper would not even fathomable.
Upchurch also included a video in his email, posted below, showing Gray entering the school once attended by his son to report on how police use drug dogs to sniff students for drugs without reasonable suspicion that they possess drugs.
We can also assume that Upchurch billed the St. Johns County School Board for his time and effort to pursue criminal charges against Gray, which also lead to him filing a SLAPP lawsuit against Gray.
In its suit against Gray, the school board seeks to force Gray to remove his videos from the web and forbid him from publishing videos of school administration and staff who are recorded in public areas, which is where Gray makes his requests.
The suit filings show the Upchurch and the St. Johns County School Board are actively suing Gray for $50,000.
In a letter from the St. Johns County School Board in response to a public records request, Upchurch claimed to have only incurred 16.6 hours of time at $170 per hour and an additional $453 for filing – a total of $3,275 for services and fees associated with defending Gray’s suit.
Yet the lawsuit filed against Gray is well beyond recovering costs, but designed to be punitive in challenging the St. Johns County School Boards policy for accessing public records.
Gray was unable to obtain a breakdown of the cost associated with Upchurch’s representation for the St. Johns County School Board.
In the suit which Gray brought against the St. Johns County School Board in reference to multiple public record violations. Gray eventually willingly dismissed the suit with prejudice.
While Gray willingly dismissed his suit, he had already made it past the first stage to determine if a case had merit, which the judge had sided with him. Gray stated he dismissed the suit as part of a larger strategic plan, which he did not disclose what his plan entailed.
The St. Johns County School Board asserts that access to the records are not a “First Amendment protected activity.” Perhaps the attorney and judge should look at the rest of the “First amendment”, which states the government shall not abridge the right of Freedom of the Press.
Meanwhile, there have been several incidents throughout the state involving school buses that could be a result of not keeping proper maintenance records, including a bus crash Monday in Clay County, which is just west of St. Johns County where Gray has been doing his investigations into school bus safety, as well as a bus fire in Central Florida earlier this month.
That same week, another school bus caught fire in St. Johns County, so there is a valid reason for Gray to continue his public records inspections of school bus maintenance records despite the school district’s allegations that he is only doing to be antagonistic.
The truth is, they are being antagonistic in not only refusing to provide the records, but by arresting him and suing him.
But the odds appear to be in Gray’s favor considering that last week, the Florida Supreme Court ruled in favor of another man in a public records case.
That man, Curtis Lee, was listed along with Gray in a North Florida magazine named Folio Weekly as being as one of the region’s 29 top “agitators, truth-seekers and crusaders.”