Case 5:14-cv-00037-RS-CJK Document 33 Filed 08/28/14 Page 1 of 20

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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
DERRICK RAY BACON,
Plaintiff,
v.

CASE NO. 5:14-cv-37-RS-CJK

FRANK MCKEITHEN, in his official

and individual capacities, and RYAN
ROBBINS and CHAD VIDRINE, in their
individual capacities,
Defendants.
_________________________________________/

ORDER
Before me are Defendants Robbins and Vidrines Motion to Dismiss (Doc.
16) and Defendant McKeithens Motion to Dismiss (Doc. 17).
BACKGROUND
Officer Chad Vidrine, a Defendant, pulled over Derrick Bacon, the Plaintiff,
as part of a routine traffic stop on September 7, 2012. (Doc. 11, p. 5-6).
Unbeknownst to Officer Vidrine, Bacon recorded the stop on his cell phone. (Id. at
p. 6). On November 7, Bacon revealed in open traffic court that he made the
recording. (Id.). Officer Robbins, another defendant, and Vidrine then handcuffed

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Bacon over his protests that his actions were constitutionally protected and placed
him in the back of their car. (Id.). They accused Bacon of illegal wiretapping in
violation of Fla. Stat. 934.03. They later removed the handcuffs and allowed
Bacon to leave. (Id. at 7-8). However, they kept his cell phone as evidence, which
they submitted to the State Attorneys office to determine whether they had
probable cause to search the phone. (Id.). The office later found that there was
insufficient evidence and declined to move forward with the prosecution. (Id. at
45).
Bacon filed a complaint against Vidrine and Robbins in their individual
capacities alleging violations under 42 U.S.C. 1983 of the First Amendment right
to free speech, the Fourth Amendment rights prohibiting false arrest and illegal
seizure of property, and the Sixth Amendment right to procedural due process. He
also alleged supplemental state law claims for malicious prosecution, intentional
infliction of emotional distress, and slander per se. Bacon also filed similar
complaints against their supervisor, Bay County Sheriff Frank McKeithen, in both
his individual and official capacities.

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ANALYSIS
1.

Standard of Review

To overcome a motion to dismiss, a plaintiff must allege sufficient facts to

state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984). I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching
Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000) (citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
2.

Claims against Robbins and Vidrine

I first consider the claims against Officers Robbins and Vidrine in their
individual capacities.
a.

First and Fourth Amendment Claims

Plaintiffs First and Fourth Amendment claims are uniquely intertwined in

this case, and I analyze them together.

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i.

Plaintiffs Claims

Bacon alleges, in Counts II and III, under 1983 that the officers committed
a Suppression of First Amendment Protected Free Speech. I construe this as a
claim for retaliation in violation of the First Amendment. To state such a claim,
the plaintiff must establish that (1) the speech was constitutionally protected; (2)
that the retaliatory conduct adversely affected the protected speech; and (3) that
there is a causal connection between the retaliatory actions and the adverse effect
on speech. Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). A plaintiff
suffers adverse action if the allegedly retaliatory conduct would likely deter a
person of ordinary firmness from the exercise of First Amendment rights. Id. at
1254.
Bacon also alleges, in Counts V, VI, VIII, and IX, that they violated his
Fourth Amendment rights against illegal seizure of plaintiffs liberty and
illegal search and seizure of plaintiffs personal property. I construe the former
claim as an allegation of false arrest. Both of these claims turn on whether the
officers had probable cause to believe that Bacon committed a crime. See Case v.
Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009). The existence of probable cause,
however, is an absolute bar to a 1983 claim for false arrest. Id. at 1326-27. For
probable cause to exist, the arrest or seizure must be objectively reasonable under
the totality of the circumstances. Bailey v. Bd. of Cnty. Comm'rs of Alachua Cnty.,

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Fla., 956 F.2d 1112, 1119 (11th Cir. 1992). An officer has probable cause if the
facts and circumstances within the officers knowledge, of which he or she has
reasonably trustworthy information, would cause a prudent person to believe,
under the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense. Von Stein v. Brescher, 904 F.2d 572, 578 (11th
Cir. 1990).
ii.

Qualified Immunity

Officers Robbins and Vidrine contend in this motion that they are entitled to
qualified immunity. This issue is intertwined with the question of probable cause.
Von Stein, 904 F.2d at 578. Qualified immunity is a shield against liability for
government actors, prohibiting civil damages for torts committed while
performing discretionary duties unless their conduct violates a clearly established
statutory or constitutional right. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th
Cir. 2008). Qualified immunity allows government officials to carry out their
discretionary duties without the fear of personal liability or harassing litigation,
protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law. Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).
It is an immunity from suit rather than a mere defense to liability. Mitchell v.
Forsyth, 472 U.S. 511, 512, 105 S. Ct. 2806, 2808, 86 L. Ed. 2d 411 (1985).

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To receive qualified immunity, the defendant public official must prove as a

threshold matter that he or she was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred. Courson v. McMillan, 939
F.2d 1479 (11th Cir. 1991) (quoting Rich v. Dollar,841 F.2d 1558, 1563-64 (11th
Cir. 1988)). Once this is established, the burden shifts to the plaintiff. Id. The
court then engages in a two-step inquiry. Hadley, 526 F.3d at 1329. The first
question is whether, taken in the light most favorable to the plaintiff, the facts
alleged show that the defendants conduct violated a constitutional or statutory
right. Id. If so, the second question is whether the right, be it constitutional or
statutory, was clearly established. Id.
In this case, it is not disputed that the officers were acting within the scope
of their discretionary authority. Therefore, I must ask determine the officers
violated a clearly established constitutional right.
To demonstrate that a constitutional right is clearly established, a plaintiff
must demonstrate (1) that a materially similar case has already been decided,
giving notice to the police; (2) that a broader, clearly established principle should
control the novel facts in this situation; or (3) this case fits within the exception of
conduct which so obviously violates the constitution that prior case law is
unnecessary. Keating v. City of Miami, 598 F.3d 753, 766 (11th Cir. 2010).

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For Fourth Amendment claims that turn on probable cause, the clearly
established issue is often framed in terms of arguable probable cause. See
Poulakis v. Rogers, 341 F. Appx 523, 526 (11th Cir. 2009). Arguable probable
cause asks whether a reasonable officer in the circumstances could have believed
that probable cause existed. Skop v. City of Atlanta, GA, 485 F.3d 1130, 1137
(11th Cir. 2007).
The qualified immunity defenses against the First and Fourth Amendment
claims must be analyzed together, because the conduct that was allegedly in
violation of the First Amendment was the arrest and seizure that were allegedly in
violation of the Fourth Amendment. If the officers are entitled to qualified
immunity based on arguable probable cause, then they are also entitled to
immunity on the First Amendment claims. Redd v. City of Enter., 140 F.3d 1378,
1383 (11th Cir. 1998).
iii.

The Clearly Established Right and Probable Cause

The First and Fourth Amendment claims in this action are intertwined. The
First Amendment claim turns on whether there was a clearly established right to
video tape the police conduct at issue. The Fourth Amendment claims also turn on
whether the officers violated a clearly established constitutional right by making
the arrest and seizing the propertyan analysis normally framed in terms of

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whether they had arguable probable cause to do so. In other words, could
reasonable officers have believed at the time that probable cause existed to make
the arrest? The result in all of these claims turns on whether Bacon had a clearly
established constitutional right to videotape Officer Vidrine during the traffic stop.
There is a clearly established First Amendment right, subject to reasonable
time, manner and place restrictions, to photograph or videotape police conduct.
Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000). These
restrictions, however, appear undeveloped by the courts.
Further, there is a Florida statute regulating unauthorized audio recording.
That statute punishes anyone who [i]ntentionally intercepts, endeavors to
intercept, or procures any other person to intercept or endeavor to intercept any
wire, oral, or electronic communication. Fla. Stat. 934.03(1)(a). However, the
statute only applies where the speaker has an expectation that such
communication is not subject to interception under circumstances justifying such
expectation. Fla. Stat. 934.02(2). Florida courts have interpreted this to mean that
for an oral conversation to be protected, the speaker must have an actual subjective
expectation of privacy, along with a societal recognition that the expectation is
reasonable. State v. Smith, 641 So. 2d 849, 852 (Fla. 1994). Factors to determine
this reasonableness include the location in which the conversation occurs, the

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manner in which the communication was made, and the kind of communication.
Stevenson v. State, 667 So. 2d 410, 412 (Fla. Dist. Ct. App. 1996).
No court appears to have specifically addressed the issue of whether the
statute prohibits citizens from recording police officers in line of duty. Because the
issue of arguable probable cause turns on whether a reasonable officer could
interpret the statute to confer probable cause to arrest Bacon for recording the
police conduct, I must interpret the statute as it applies to this issue.
iv.

The Florida Statute

As a matter of first impression, I construe Fla. Stat. 934.03 to be

inapplicable to Bacons conduct because the officer did not have a reasonable
expectation of privacy. The officer made the stop in public, in an open area, where
bystanders could have been listening to his conversation. Further, video cameras in
police cars routinely record traffic stops, see, e.g., United States v. Boyce, 351 F.3d
1102, 1104 (11th Cir. 2003), and one who knows they are being recorded cannot
have any expectation of privacy. Likewise, there is little societal expectation of
privacy for police officers acting in the line of duty in public places; an expectation
of privacy in these circumstances would undercut societal expectations of police
accountability. This expectation is a corollary to the constitutional right to gather

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information about what public officials do on public property, and specifically, a

right to record matters of public interest. Smith, 212 F.3d at 1333.
Most importantly, any contrary construction of the statute would raise
serious constitutional issues as to its validity as an unreasonable restriction on
constitutionally protected speech, and I will construe ambiguous statutes to avoid
constitutional problems. See United States v. Stone, 139 F.3d 822, 836 (11th Cir.
1998). Recording a police officer is constitutionally protected speech, subject only
to reasonable time, place, and manner restrictions. Smith, 212 F.3d at 1333.
If the statute were interpreted to forbid recording police officers during
routine traffic stops, then it would be a time, place, and manner restriction on
constitutionally protected speech. The state would need to show that it does not
restrict speech substantially more than necessary to further a legitimate
government interest, and it leave[s] open adequate alternative channels of
communication. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258
(11th Cir. 2005). Such a law, as so applied, would be unlikely to pass
constitutional muster. The government has little legitimate interest in casting a veil
of secrecy over police officers performing their official duties in public places,
especially given that officers often record themselves in similar instances. Such a
restriction would also fail to leave open other alternative channels of
communication for the constitutionally protected right to videotape police officers.

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In making this determination, I find persuasive the reasoning outlined in the

Seventh Circuits opinion in Am. Civil Liberties Union of Illinois v. Alvarez, 679
F.3d 583, 604-08 (7th Cir. 2012) cert. denied, 133 S. Ct. 651, 184 L. Ed. 2d 459
(U.S. 2012), in which the court found that a factually similar ban on recording
police activity would likely fail an intermediate scrutiny analysis.1
I therefore interpret the statute not to include recording police officers in
public during routine traffic stops.
v.

Application to First Amendment Claims

With respect to the First Amendment claims, I therefore find that Bacons
conductvideotaping a police officer without his consent at a traffic stopwas
constitutionally protected, and Bacons right to engage in this conduct was clearly
established. The Eleventh Circuit recognized this right well over a decade ago.
Smith, 212 F.3d at 1333. Although defendants correctly state that there is no
binding authority specifically conferring a constitutionally protected right to record
routine traffic stops, the holding in Smith dictates that its broad[ ], clearly
established principle should control the novel facts in this situation. Keating v.
City of Miami, 598 F.3d at 766 (citations and quotations omitted). Alternatively,

I remind Plaintiff that Alvarez is not the law of the land, as he asserts. (Doc.18, p. 7). Students
of first-year civil procedure should know that denial of certiorari does not indicate any view on
the merits. Charles Allen Wright et al., 16B Fed. Prac. & Proc. Juris. 4004.1 (3d ed. 2014).
1

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arresting a citizen for exercising his First Amendment rights, over his clear protests
that he was exercising these rights, presents a case which so obviously violates
[the] constitution that prior case law is unnecessary. Id. (citations and quotations
omitted).
This reasoning is supported by the Eleventh Circuits recent decision in
Bowens v. Superintendant of Miami S. Beach Police Dep't, 557 F. Appx 857, 863
(11th Cir. 2014), in which the court found that a citizen plausibly states a First
Amendment violation by alleging he was arrested for taking photographs of
alleged police misconduct. The court went on to recognize the right to film [city]
police in a public place. Id.
Additionally, Bacon has sufficiently pleaded the remaining elements of his
retaliation claim. The threat of arrest and seizure of property is enough to deter a
person of ordinary firmness from the exercise of First Amendment rights. Bennett,
423 F.3d at 1254. The causal connection between the officers conduct and the
adverse effect on speech is likewise clear.
I thus find, based on the allegations in Bacons complaint, that the officers
are not entitled to qualified immunity for the First Amendment claims.

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vi.

Application to Fourth Amendment Claims

With respect to the Fourth Amendment claims, I find for similar reasons that
the officers did not have arguable probable cause to make the arrest or seize the
tape recorder. The Florida statute is admittedly ambiguous, but would not, taken in
light of clearly established First Amendment principles, cause a reasonable officer
to believe that he or she had probable cause to arrest someone for recording routine
police actions in a public place. To the contrary, as described above, the statute is
inapplicable to recordings of police activities in public places. Given the clearly
established right to record police activity, it would be unreasonable for an officer
under Robbins and Vidranes circumstances to construe the Florida statute to
impose an unconstitutional restriction on Bacons protected speech, and the
officers lacked actual and even arguable probable cause to arrest him and seize his
cell phone.
The officers, in arguing that they are entitled to qualified immunity, rely
heavily on Migut v. Flynn, 131 F. Appx 262, 267 (11th Cir. 2005). This case was
factually similar to the one at handan officer arrested a man under 934.03 for
recording him during a traffic stop. Id. at 263. The court there determined that the
officer had at least arguable probable cause to make the arrest under the statute. Id.
at 267. However, the reliance on Migut is misplaced. First, Migut is an unpublished
opinion that is not binding precedent. U.S.Ct. of App. 11th Cir. Rule 36-2. Second,

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Migut was limited in scope; the court never held that the statute prohibited the
plaintiffs conduct, only that the officer had arguable probable cause to make the
arrest. Migut, 131 Fed. Appx at 266-67. Third, Migut never considered any First
Amendment issues. The court never cited Smith, and the plaintiff raised only
Fourth Amendment claims. The Migut courts analysis is therefore incomplete with
respect to the case at hand, which blends First and Fourth Amendment claims. Had
that court considered First Amendment implications, I find it highly unlikely that it
would have arrived at the same outcome.
Therefore, based on the allegations in Bacons complaint, Vidrine and
Robbins are not entitled to qualified immunity on the Fourth Amendment claims.
vii.

Investigatory Stop

Vidrine and Robbins argue that Bacons claim for false arrest in fact
amounts to a mere investigatory stop. If that were the case, only reasonable
suspicion, a lower standard than probable cause, would be required. See United
States v. Powell, 222 F.3d 913, 917 (11th Cir. 2000).
In order to determine whether the officers crossed the line from investigatory
stop into arrest, courts should look to four non-exclusive factors: the law
enforcement purposes served by the detention, the diligence with which the police
pursue the investigation, the scope and intrusiveness of the detention, and the

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duration of the detention. United States v. Acosta, 363 F.3d 1141, 1146 (11th
Cir. 2004) (citations and quotations omitted).
Applying these factors, and taking the facts in the light most favorable to the
plaintiff, Bacon has stated a claim for false arrest for which probable cause was
required. As to the first and third factors, there appears to be little justification for
handcuffing Robbins and placing him in the car, since Bacon posed no threat to
the officers and gave them no reason to make them think he would be unavailable.
The second factor cuts towards the officersthe police appeared diligent in
pursuing their investigation by searching for the statute under which they might
attempt to arrest Bacon. The fourth factor, taken in the light most favorable to the
plaintiff, cuts towards Bacon.
With three of the four factors, as well as the totality of the circumstances, in
his favor, I am satisfied that Bacon has stated a claim for false arrest beyond a
mere investigatory stop.
b. Sixth Amendment Claims
Bacon concedes that his Sixth Amendment claims fail, and they are
accordingly dismissed with prejudice.

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c. Malicious Prosecution
Bacon concedes that the malicious prosecution claims fail, so they are
accordingly dismissed with prejudice.
Instead, plaintiff seeks to amend the complaint to add a state law claim for
false imprisonment. However, if the imprisonment is under legal authority it may
be malicious but it cannot be false. See Jackson v. Navarro, 665 So. 2d 340, 341
(Fla. Dist. Ct. App. 1995) (citations and quotations omitted). I note that Bacon
cites this case in his own brief. Since such a claim is impossible under Florida law,
I will not grant leave to amend the complaint to add it.
d. Intentional Infliction of Emotional Distress
Bacon claims that the officers actions amount to an intentional infliction of
emotional distress. However, the standard for such a claim is very high:
Liability has been found only where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his resentment
against the actor, and lead him to exclaim, Outrageous!
Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985).
Bacon has not satisfied this burden. His allegationsthat two officers
handcuffed him and detained in a police car and took his cell phonedescribe

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conduct far from atrocious and utterly intolerable. His claims are therefore
dismissed without prejudice.
e. Defamation Per Se
Bacon alleges that Officer Robbins committed defamation per se against him
by falsely accusing him of committing a felony.
However, these claims fail as a matter of law. In Florida, public officials
who make statements within the scope of their duties are absolutely immune from
suit for defamation. Stephens v. Geoghegan, 702 So. 2d 517, 522 (Fla. Dist. Ct.
App. 1997). Additionally, the controlling factor in deciding whether a public
employee is absolutely immune is whether the communication was made within
the scope of the officers duties. Alfino v. Dep't of Health & Rehabilitative Servs.,
676 So. 2d 447, 449 (Fla. Dist. Ct. App. 1996).
Any allegedly defamatory statements by the officers were indisputably made
within the scope of Robbinss duty as an officer, and so these claims are dismissed
with prejudice.
3.

Claims against McKeithen

Bacon also alleges identical claims against Bay County Sheriff Frank
McKeithen. I dismiss the Sixth Amendment and state law claims for the same
reasons I have already discussed.

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I construe the First and Fourth Amendment claims against McKeithen in his
individual capacity to allege that McKeithen implemented policies which caused
violations of Bacons constitutional rights. Such claims are actionable, although
the officer may be protected by qualified immunity. See Hafer v. Melo, 502 U.S.
21, 31, 112 S. Ct. 358, 365, 116 L. Ed. 2d 301 (1991).
I construe the remaining claim against McKeithen to be supervisory liability
claims under 1983 that McKeithen, in his official capacity, should be liable for
the alleged First and Fourth Amendment violations committed by Officers
Robbins and Vidrine. Official capacity claims generally represent only another
way of pleading an action against an entity of which an officer is an agent. Hafer,
502 U.S. at 25.
To impose 1983 liability on a municipality or officer in his official
capacity, a plaintiff must show (1) that his constitutional rights were violated; (2)
that the municipality had a custom or policy that constituted deliberate indifference
to that constitutional right; and (3) that the policy or custom caused the violation.
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A policy is a decision
officially adopted by the municipality, or created by an official of such rank that he
or she could be said to be acting on behalf of the municipality. Sewell v. Town of
Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). A custom is a practice that is
so settled and permanent that it takes on the force of law. Id.

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In his Response to Defendant McKeithens Motion to Dismiss (Doc.19),

Bacon attached an email from the Bay County Sheriffs Office. Id. at 19. Bacon
argues that this email is evidence of a policy or custom constituting deliberate
indifference to a constitutional right. However, this email is not referenced in the
Complaint. McKeithen has not had an opportunity to respond to its contents.
Accordingly, I defer ruling on Bacons official capacity claim until this email has
been properly considered.
Bacon shall, within 14 days, file an amended complaint incorporating this
email. McKeithen shall then have 14 days to respond. N.D. Fla. Loc. R. 7.1(c).
CONCLUSION
The relief requested in Defendants Robbins and Vidrines Motion to Dismiss
(Doc. 16) is GRANTED IN PART and DENIED IN PART. Plaintiffs Counts
X, XI (procedural due process), XIII, XIV (malicious prosecution), XIX, and XX
(defamation per se) are DISMISSED WITH PREJUDICE. Count XVII
(emotional distress) is DISMISSED WITHOUT PREJUDICE. The motion is
DENIED as to Counts II, III (First Amendment), V, VI, VIII, and IX (Fourth
Amendment).
The relief requested in Defendant McKeithens Motion to Dismiss (Doc. 17)
is GRANTED IN PART and DEFERRED IN PART. Counts X, XIII, and
XVIII (Sixth Amendment, Malicious Prosecution, Defamation per se) are

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DISMISSED WITH PREJUDICE. Count XVI (emotional distress) is

DISMISSED WITHOUT PREJUDICE. The motion is DEFERRED as to
Counts I, IV, VIII (First and Fourth Amendment individual claims), and XXI
(official capacity liability). Plaintiff shall, not later than September 9, 2014, file
an amended complaint in accordance with this order.

ORDERED on August 28, 2014.

/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE