Am. Civil Liberties Union of IL v. Alvarez, No. 11-1286 (7th Cir. 2012)

https://law.justia.com/cases/federal/appellate-courts/ca7/11-1286/11-1286-2012-05-08.html

The American Civil Liberties Union appeals from the denial of a preliminary injunction in its suit against the Cook County State’s

Attorney (that is, the “D.A.” of Cook County, Illinois) to invalidate the Illinois Eavesdropping Act as a violation of freedom of speech (more precisely, freedom to publish or otherwise disseminate other people’s speech).

I would affirm the district court. The Act criminalizes “knowingly and intentionally us[ing] an eavesdropping device for the purpose of hearing or recording all or any part of any conversation” without “the consent of all of the parties to such conversation.” 720 ILCS 5/14-2(a)(1). My colleagues have decided to reverse, and to order the entry of a preliminary injunction against enforcement of the Eavesdropping Act.

But why a preliminary injunction? The opinion gives no indication of what argument or evidence presented

on remand might allow the district court again to uphold the Act.

The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or

clear constitutional language or—in the absence of those traditional sources of guidance—compelling evi-

dence, or an overwhelming gut feeling, that the statute has intolerable consequences. The law invalidated

today is not an outdated one left on the books by legislative inertia, like many of the laws invalidated by

the Supreme Court in famous cases such as Griswold v. Connecticut, 381 U.S. 479 (1965). In its present form it

54 No. 11-1286 dates only from 1994. It is stricter than provisions found in the laws governing electronic eavesdropping in

most other states because it requires both parties to consent to a recording of their conversation. Maybe it’s too strict in forbidding nonconsensual recording

even when done in defense of self or others, as when the participant in a conversation records it in order to create credible evidence of blackmail, threats, other

forms of extortion, or other unlawful activity, as in Glik

v. Cunniffe, 655 F.3d 78 (1st Cir. 2011). But that feature

of the statute is irrelevant. The ACLU insists on, and

the majority opinion endorses, the right to record con-

versations to which police officers are parties even if

no party consents to the recording, as long as the

officers are performing public duties (as distinct from

talking with one another on a private topic) in a public

place and speaking loudly enough to be heard by a

person who doesn’t have special equipment for

amplifying sound—in other words, a person standing

nearby.

Our ruling casts a shadow over electronic privacy

statutes of other states as well, to the extent that they can

be interpreted to require the consent of at least one party

to a conversation to record it even though the conversa-

tion takes place that in a public place, if the conversa-

tion could nevertheless reasonably be thought private by

the parties. The statutes of several states are so open-

ended that they could easily be found invalid under

the approach taken in the majority opinion. See Alaska

Stat. Ann. § 42.20.310; Ark. Code. Ann. § 5-60-120;

Cal. Penal Code § 632(c); Mich. Comp. Laws Ann.

No. 11-1286 55

§ 750.539c; N.D. Cent. Code. Ann. § 12.1-15-02. The Cali-

fornia statute is illustrative. It states that “the term ‘con-

fidential communication’ includes any communica-

tion carried on in circumstances as may reasonably indicate

that any party to the communication desires it to

be confined to the parties thereto, but excludes a com-

munication made in a public gathering or in any legisla-

tive, judicial, executive or administrative proceeding

open to the public, or in any other circumstance in

which the parties to the communication may reasonably

expect that the communication may be overheard or

recorded.” The words are clear, the meaning is clear,

but the application is unclear. Should a conversation in

a public place, but intended to be private, be thought a

“communication that any party desires to be confined

to the parties”? It is both intended to be private

and remote from a communication made in a “public

gathering,” a term that from its placement connotes a

public meeting of some sort. But what of the exclusion

of private communications that the parties “may rea-

sonably expect . . . may be overheard or recorded”? That

fogs the issue of which private communications are

protected. To read the statute literally would exclude

all private communications, for any private communica-

tion can be overheard and recorded, even if it is a con-

versation in a closed room.

A number of state privacy statutes tee off from

the statement in Katz v. United States, 389 U.S. 347, 351

(1967), that “what a person knowingly exposes to the

public, even in his own home or office, is not a subject of

Fourth Amendment protection. But what he seeks to

56 No. 11-1286

preserve as private, even in an area accessible to the

public, may be constitutionally protected.” See, e.g., Fla.

Stat. § 934.02(2); Ohio Rev. Code Ann. § 2933.51(B);

Texas Penal Code § 16.02(b)(1), incorporating Tex. Code

Crim. P. art. 18.20 § 1(1); cf. 18 U.S.C. § 2510(2). The

police in Katz had recorded the defendant’s phone call,

made in a public telephone booth, by secretly fastening

a microphone to the booth, and the Court held that

the phone call violated the Fourth Amendment because

the police had no warrant. Suppose the telephone

booth had had no door, or that though it had a door the

booth was not soundproof and someone standing five

feet away could hear the conversation. Or suppose a

police officer is talking in a low voice to a crime victim

on a crowded sidewalk; there are people within

earshot but the conversants reasonably assume that no

one is listening, though they notice someone looking at

his cell phone and the recorder in the cell phone might

be turned on. We can’t predict the impact of today’s

decision on the laws of most other states.

The ACLU particularly wants to record conversations

to which a police officer is a party during demonstrations

in public places, such as the march protesting the start

of the second Iraq war that was before us in Vodak v. City

of Chicago, 639 F.3d 738 (7th Cir. 2011). That is its par-

ticular desire, but if its constitutional argument is

correct, anyone has a constitutional right to record all

such conversations, not just groups like the ACLU,

and journalists, because neither the ACLU nor the

press has greater First Amendment rights than other

No. 11-1286 57

members of the public. Citizens United v. Federal Election

Commission, 130 S. Ct. 876, 905-06 (2010); Lovell v. City of

Griffin, 303 U.S. 444, 452 (1938); see generally Eugene

Volokh, “Freedom for the Press as an Industry, or for

the Press as a Technology? From the Framing to Today,”

160 U. Pa. L. Rev. 459 (2012). Nor would the right be

limited to political demonstrations; it would extend to

all audible police conversations in public places,

whether outdoors on sidewalks and in parks or indoors

in the lobbies or other public spaces of courthouses

and other government buildings.

Judges asked to affirm novel “interpretations” of the

First Amendment should be mindful that the constitu-

tional right of free speech, as construed nowadays, is

nowhere to be found in the Constitution. The relevant

provision of the First Amendment merely forbids

Congress to abridge free speech, which as understood

in the eighteenth century meant freedom only from

censorship (that is, suppressing speech, rather than just

punishing the speaker after the fact). A speaker could

be prosecuted for seditious libel, for blasphemy, and for

much other reprobated speech besides, but in a prosecu-

tion he would at least have the protection of trial by

jury, which he would not have if hauled before a censor-

ship board; and his speech or writing would not have

been suppressed, which is what censorship boards do.

Protection against censorship was the only protection

that the amendment was understood to create. Patterson

v. Colorado, 205 U.S. 454, 461-62 (1907) (Holmes, J.);

Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123

(7th Cir. 2001); Akhil Reed Amar, The Bill of Rights: Creation

58 No. 11-1286

and Reconstruction 23-24 (1998); cf. 4 William Blackstone,

Commentaries on the Laws of England 150-53 (1769).

The limitation of the amendment to Congress, and

thus to federal restrictions on free speech (the First Amend-

ment does not apply to state action), and to censorship

is the original understanding. Judges have strayed so

far from it that further departures should be under-

taken with caution. Even today, with the right to free

speech expanding in all directions, it remains a partial,

a qualified, right. To make it complete would render

unconstitutional defamation law, copyright law, trade

secret law, and trademark law; tort liability for wire-

tapping, other electronic eavesdropping, and publicly

depicting a person in a “false light”; laws criminalizing

the publication of military secrets and the dissemination

of child pornography; conspiracy law (thus including

much of antitrust law); prohibitions of criminal solicita-

tion, threats and fighting words, securities fraud, and

false advertising of quack medical remedies; the regula-

tion of marches, parades, and other demonstrations

whatever their objective; limitations on free speech

in prisons; laws limiting the televising of judicial pro-

ceedings; what little is left of permitted regulation

of campaign expenditures; public school disciplining of

inflammatory or disruptive student speech; the attorney-

client, spousal, and physician-patient privileges in cases

in which an attorney or spouse or physician would like

to speak but is forbidden by the privilege to do so;

laws making medical records confidential; and prohibi-

tions against the public disclosure of jurors’ names in

cases in which jurors might be harassed. All these legal

No. 11-1286 59

restrictions of free speech are permitted (some because

they may actually increase the amount of speech, a

point I’ll come back to). The question in this case is

whether a state, to protect both privacy and public

safety, should be allowed in addition to forbid the re-

cording of conversations between police officers and

members of the public in a public place unless both

parties to the conversation consent to being recorded

for posterity.

A person who is talking with a police officer on duty

may be a suspect whom the officer wants to question;

he may be a bystander whom the police are shooing

away from the scene of a crime or an accident; he may

be an injured person seeking help; he may be a crime

victim seeking police intervention; he may be asking

for directions; he may be arguing with a police officer

over a parking ticket; he may be reporting a traffic acci-

dent. In many of these encounters the person con-

versing with the police officer may be very averse to the

conversation’s being broadcast on the evening news

or blogged throughout the world. In some instances

such publicity would violate the tort right of privacy, a

conventional exception to freedom of speech as I have

noted. Restatement (Second) of Torts §§ 652A, 652D (1977)

(“unreasonable publicity given to [another person’s]

private life”); Wolfe v. Schaefer, 619 F.3d 782, 784 (7th Cir.

2010); Reuber v. Food Chemical News, Inc., 925 F.2d 703, 718-

19 (4th Cir. 1991) (en banc) (“publiciz[ing] private facts

in a highly offensive manner about an issue not of

public concern”); Miller v. Motorola, Inc., 560 N.E.2d 900

60 No. 11-1286

(Ill. App. 1990). This body of law is endangered by

today’s ruling.

Privacy is a social value. And so, of course, is public

safety. The constitutional right that the majority creates

is likely to impair the ability of police both to extract

information relevant to police duties and to communi-

cate effectively with persons whom they speak with in

the line of duty. An officer may freeze if he sees a jour-

nalist recording a conversation between the officer and

a crime suspect, crime victim, or dissatisfied member

of the public. He may be concerned when any stranger

moves into earshot, or when he sees a recording

device (even a cell phone, for modern cell phones are

digital audio recorders) in the stranger’s hand. To

distract police during tense encounters with citizens

endangers public safety and undermines effective law

enforcement.

The majority opinion disclaims any intention of

“immuniz[ing] behavior that obstructs or interferes

with effective law enforcement.” I am not reassured. A

fine line separates “mere” recording of a police-citizen

encounter (whether friendly or hostile) from obstructing

police operations by distracting the officers and upsetting

the citizens they are speaking with. Today’s ruling

may cause state and federal judicial dockets in Illinois

to swell because it will unwittingly encourage police

officers to shoo away bystanders, on the authority of cases

like Colten v. Kentucky, 407 U.S. 104, 109-10 (1972); cf. City

of Houston v. Hill, 482 U.S. 451, 462 n. 11 (1987); King v.

Ambs, 519 F.3d 607, 613-15 (6th Cir. 2008), when the

No. 11-1286 61

officer wants to have a private conversation in a public

place.

That the Eavesdropping Act, despite its name, does not

punish the bystander who overhears a conversation

without recording it does not have the significance that

the majority opinion gives it. There is an important dif-

ference, well articulated in Justice Harlan’s dissent in

United States v. White, 401 U.S. 745, 787-89 (1971) (footnotes

omitted), between human and mechanical eavesdropping:

The impact of the practice of third-party bugging,

must, I think, be considered such as to undermine

that confidence and sense of security in dealing

with one another that is characteristic of individual

relationships between citizens in a free society. It

goes beyond the impact on privacy occasioned by

the ordinary type of “informer” investigation . . . . The

argument of the plurality opinion, to the effect that

it is irrelevant whether secrets are revealed by

the mere tattletale or the transistor, ignores the dif-

ferences occasioned by third-party monitoring and

recording which insures full and accurate disclosure

of all that is said, free of the possibility of error

and oversight that inheres in human reporting.

Authority is hardly required to support the proposi-

tion that words would be measured a good deal more

carefully and communication inhibited if one sus-

pected his conversations were being transmitted

and transcribed. Were third-party bugging a

prevalent practice, it might well smother that sponta-

neity—reflected in frivolous, impetuous, sacrilegious,

62 No. 11-1286

and defiant discourse—that liberates daily life. Much

off-hand exchange is easily forgotten and one may

count on the obscurity of his remarks, protected by

the very fact of a limited audience, and the

likelihood that the listener will either overlook or

forget what is said, as well as the listener’s inability

to reformulate a conversation without having to

contend with a documented record. All these values

are sacrificed by a rule of law that permits official

monitoring of private discourse limited only by the

need to locate a willing assistant.

The distinction that Justice Harlan drew between an

overheard private conversation recalled from memory

and one that is recorded is something everyone feels—

and feels more acutely in the electronic age than

41 years ago. Walter Kirn, “Little Brother Is Watching,”

New York Times Magazine (Oct. 17, 2010); William

Saletan, “Bugged Naked: Webcams, Sex, and the Death

of Privacy,” Slate (Oct. 1, 2010); William Safire, “To Stop

the Eavesdrop,” New York Times (Dec. 20, 1999). Americans

face new challenges to privacy because of the amount

of personal information stored and publicly accessible

online and the ubiquity of recording devices. Lizette

Alvarez, “Spring Break Gets Tamer as World Watches

Online,” New York Times (March 16, 2012); Jeffrey Rosen,

“The Web Means the End of Forgetting,” New York Times

(July 25, 2010); Jonathan Zittrain, “Privacy 2.0,” 2008 U.

Chi. Legal Forum 65, 81-91. Lacking relevant expertise,

lacking evidence, forced back on intuition, judges

should hesitate to invalidate legislative attempts to

solve these problems.

Police may have no right to privacy in carrying out

official duties in public. But the civilians they interact

with do. The majority opinion “acknowledge[s] the dif-

ference in accuracy and immediacy that an audio

recording provides as compared to notes or even silent

videos or transcripts” but says that “in terms of the

privacy interests at stake, the difference is not sufficient

to justify criminalizing this particular method of pre-

serving and publishing the public communications of

these public officials” (emphasis in original). The assertion

lacks a supporting argument, and by describing the

recording as a “method of preserving and publishing

the public communications of these public officials”

neglects the fact that the recording will publish and

preserve what the civilians with whom the police are

conversing say, not just what the police say. The further

statement that these “are not conversations that carry

privacy expectations even though uttered in public

places” implies that anything said outdoors is ipso facto

public. Yet people often say things in public that they

don’t expect others around them to be listening to, let

alone recording for later broadcasting, and we are given

no reason to think that this is never the case when

someone complains to a police officer, or otherwise

speaks with one, “in public” in the sense of being in a

place in which there are other people about.

Suppose a police detective meets an informant in a

park and they sit down on a park bench to talk. A crime

reporter sidles up, sits down next to them, takes out

his iPhone, and turns on the recorder. The detective and

the informant move to the next park bench to continue

64 No. 11-1286

their conversation in private. The reporter follows them.

Is this what the Constitution privileges?

It is small consolation to be told by the majority that

“the ACLU plans to record openly, thus giving the

police and others notice that they are being recorded”

(emphasis in original). All the ACLU means is that it

won’t try to hide its recorder from the conversants

whom it wants to record, though since the typical

recorder nowadays is a cell phone it will be hidden in

plain view. A person who doesn’t want his conservation

to be recorded will have to keep a sharp eye out for

anyone nearby holding a cell phone, which in many

urban settings is almost everyone. The ubiquity of re-

cording devices will increase security concerns by dis-

tracting the police.

There is more on the state’s side of this case than

privacy of communications and the effectiveness of law

enforcement—and the more is the same First Amendment

interest that the ACLU says it wants to promote. The

majority opinion concedes that “conversational privacy”

“serves First Amendment interests,” but thinks there

can be no conversational privacy when the conversation

takes place in a public place; it says that “this case

has nothing to do with private conversations.” But

private talk in public places is common, indeed

ubiquitous, because most people spend a lot of their

time in public places; because they rely on their

anonymity and on the limited memory of others to mini-

mize the risk of publication; because public places are

(paradoxically) often more private than private places

No. 11-1286 65

(imagine if detectives could meet with their informants

only in police stations); and because eavesdropping on

strangers is actually rather uncommon because it is

so difficult in most cases to understand a conversa-

tion between strangers. “Anyone who’s overheard con-

versations on the street or in a restaurant knows that

conversations between strangers are often unintelligi-

ble. There is the public language we employ when

talking to strangers and the elliptical private language

that we use when talking to people whom we know.

Strangers need an interpreter . . . .” United States v. Curescu,

674 F.3d 735, 740 (7th Cir. 2012).

I disagree with the majority that “anyone who wishes

to speak to police officers in confidence can do so,” and

“police discussions about matters of national and local

security do not take place in public where bystanders

are within earshot.” Forget national security; the

people who most need police assistance and who most

want their conversations kept private are often the

people least able to delay their conversation until they

reach a private place. If a person has been shot or raped

or mugged or badly injured in a car accident or has wit-

nessed any of these things happening to someone else,

and seeks out a police officer for aid, what sense would

it make to tell him he’s welcome to trot off to the

nearest police station for a cozy private conversation,

but that otherwise the First Amendment gives passersby

the right to memorialize and publish (on Facebook, on

Twitter, on YouTube, on a blog) his agonized plea for

help? And as in our informant example, many of the

persons whom police want to talk to do not want to be

seen visiting police stations.

66 No. 11-1286

Accuracy is a social value, and a recording of a con-

versation provides a more accurate record of the con-

versation than the recollection of the conversants: more

accurate, and also more truthful, since a party to a con-

versation, including a police officer, may lie about what

he heard or said. But on the other side of the balance

are the inhibiting effect of nonconsensual recording of

conversations on the number and candor of conversations

(and hence on values that the First Amendment pro-

tects); the baleful effect on privacy; the negative effect

on law enforcement; and the litigation likely to be en-

gendered by police officers’ shooing away intruders

on their private conversations with citizens. These are

significant social costs, and the majority opinion offers

no basis in fact or history, in theory or practice, in con-

stitutional text or judicial precedent, for weighting

them less heavily than the social value of recorded eaves-

dropping.

Hero cop Deputy Nicholas Kehagias

Deputy involved in Harnett County shooting resigns

Thursday, June 23, 2016

Deputy resigns

A Harnett County deputy resigns amid a firestorm of departmental scrutiny.

LILLINGTON, NC (WTVD) -- Blaming the "environment created by a dishonest media" and saying he's putting fellow officers at risk, a Harnett County deputy involved in the shooting death of a man in November has resigned.

A grand jury declined to indict Deputy Nicholas Kehagias in April in the shooting death of 33-year-old John Livingston. He could have faced second-degree murder charges.

Livingston was shot on his West Everett Drive front porch in November during a fight with two Harnett County deputies who were reportedly looking for another man who had previously resided in the home.

When Livingston told the deputies the man did not live there, and they could not come in the home 

https://media2.newsobserver.com/static/content/pdf/kehagias-news-release.pdf

"Over the last three years it has been my great honor and joy to serve the citizens of Harnett County as a member of this Office. I have taken great pride in my job and in doing everything I could to enforce North Carolina laws, but more importantly, in helping every person I was able," wrote Kehagias in his resignation letter.

"As such, it is incredibly difficult for me to do this, but I cannot risk putting my fellow law enforcement officers in increased danger due to the environment created by a dishonest media and a baseless lawsuit, combined with the dangerous rhetoric or actions of certain person(s) in the community," he continued.

His last day will be June 30.

Since a grand jury declined to indict Kehagias, the FBI has opened an investigation amid a wider probe of allegations about the use of force by law enforcement in the county.

Phillip Turner/The Battousai

Just like Phillip Turner/The Battousai baiting the police by filming them engaged in routine non enforcement activity that is none of the public's business to make them look bad for following gold standard universally accepted law enforcement policy and filing frivolous bogus legally dubious nonsense section 1983 lawsuits like Turner v. Driver that are always dismissed by qualified immunity to harass police departments and take away Police privacy rights jeopardizing officer safety.

Hero Cops smeared by litigating a case in the media rather than in court.

 https://reason.com/2024/04/05/california-cops-tased-a-man-having-a-seizure-then-booked-him-on-bogus-charges-to-cover-their-mistake/

https://abc7news.com/bay-area-couple-files-lawsuit-against-central-marin-police-authority-for-assaulting-unlawfully-arresting-husband-having-seizure/14611593/

 "The Central Marin Police Authority regrets that Bruce Frankel has elected to pursue litigation against us for an alleged improper emergency medical response to him by its personnel on August 29, 2022. As much as we would like to, the Authority by law is precluded from commenting upon medical and personnel matters that are deemed confidential and private. However, the Authority will vigorously defend itself against this meritless and factually inaccurate litigation which has not even been served upon the Authority as of yet. Unfortunately, this individual has decided to first litigate his case in the media rather than in court, where we are confident the action of our officers will be vindicated.

During the duration of this case, the Authority will have no further comment upon this matter. The Central Marin Police Authority would like to thank the public for its continued confidence in our dedicated employees who each and every day make the safety and medical well-being of our citizens their highest priority. Our core values continue to include compassion, integrity and responsibility, and we always will strive towards excellence in providing the highest level of public service to everyone in our community."

RIP United States District Judge JOHN "Hero cops who keep us safe and are good boys who can do no wrong" McBRYDE

 "There is nothing in the case law to suggest that police officers are constitutionally  prohibited from making reasonable inquiry, and taking reasonable steps, to identify an unknown person who is seen videotaping their place of work and the place where they come and go in their private vehicles. In this day and age, the risk to public officials, particularly police officers, is such that a police officer could reasonably believe that he had the right to require plaintiff to identify himself after plaintiff was observed videotaping the police station and to take appropriate action in response to plaintiff's refusal to identify himself.."

Turner v. Driver

Opinion

NO. 4:15-CV-824-A

02-19-2016

PHILLIP TURNER, Plaintiff, v. LIEUTENANT DRIVER, ET AL., Defendants.

JOHN McBRYDE United States District Judge

MEMORANDUM OPINION and ORDER

Came on for consideration the motions to dismiss filed in the above-captioned action by defendants Lieutenant Driver ("Driver"), Officer Grinalds, Badge 3825 ("Grinalds"), and Officer Dyess, Badge 2586 ("Dyess") (collectively "movants"). Plaintiff, Phillip Turner, has responded. Having considered the motions, the response, movants' replies, the first amended complaint, and the applicable legal authorities, the court concludes that the motions should be granted. 

The movants filed separate motions to dismiss plaintiff's claims. Because the court concludes that all movants are entitled to qualified immunity for the same reason, the court deals with all three motions in this memorandum opinion and order. This memorandum opinion and order does not address plaintiff's claims against the City of Fort Worth as it did not file a motion to dismiss.

I.

Background

In summary form plaintiff made the following allegations in his first amended complaint:

Plaintiff alleged that he was arrested in violation of his First Amendment right to videotape a police station and the activity at the station, and his right to refuse to identify himself when officers from the station asked him to do so. According to plaintiff, he was conducting his videotape activity while standing on a public sidewalk across the street from the police station. Turner and Grinalds came from the station and asked plaintiff to identify himself. When plaintiff refused to provide identification, he was handcuffed and placed in the back of a police car. Turner and Grinalds requested that a supervisor come to the scene, and Driver responded. Driver also requested identification from plaintiff. Plaintiff again refused to provide identification. Driver lectured plaintiff but eventually allowed him to leave.

Plaintiff alleged that the actions of movants in response to his conduct were in violation of his First, Fourth, and Fourteenth Amendment rights. 

II.

The Motions to Dismiss

Each of the motions to dismiss seeks dismissal for failure of plaintiff state a claim upon which relief may be granted against the movant. In each instance, a ground of the motion is that the movant is entitled to qualified immunity. Inasmuch as the court is dismissing the claims against movants on that ground, the court is not devoting attention to other grounds asserted by movants.

III.

Pertinent Legal Principles

A. Standards Applicable to the Motion to Dismiss

Rule 8(a)(2) of the Federal Rules of Civil Procedure provides, in a general way, the applicable standard of pleading. It requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted). Although a complaint need not contain detailed factual allegations, the "showing" contemplated by Rule 8 requires the plaintiff to do more than simply allege legal conclusions or recite the elements of a cause of action. Id. at 555 & n.3. Thus,  while a court must accept all of the factual allegations in the complaint as true, it need not credit bare legal conclusions that are unsupported by any factual underpinnings. See Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.")

Moreover, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), the facts pleaded must allow the court to infer that the plaintiff's right to relief is plausible. Id. at 678. To allege a plausible right to relief, the facts pleaded must suggest liability; allegations that are merely consistent with unlawful conduct are insufficient. Twombly, 550 U.S. at 566-69. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

The court generally is not to look beyond the pleadings in deciding a motion to dismiss. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). "Pleadings" for purposes of a Rule 12(b)(6) motion include the complaint, its attachments, and documents that are referred to in the complaint and central to the plaintiff's claims. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).  B. Standards Applicable to Qualified Immunity

Qualified immunity insulates a government official from civil damages liability when the official's actions do not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For a right to be "clearly established," the right's contours must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Individual liability thus turns on the objective legal reasonableness of the defendant's actions assessed in light of clearly established law at the time. Hunter v. Bryant, 502 U.S. 224, 228 (1991); Anderson, 483 U.S. at 639-40. In Harlow, the court explained that a key question is "whether that law was clearly established at the time an action occurred" because "[i]f the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." 457 U.S. at 818. In assessing whether the law was clearly established at the time, the court is to consider all relevant legal authority, whether cited by the parties or not. Elder v. Holloway, 510 U.S. 510, 512 (1994). If public officials of reasonable competence  could differ on the lawfulness of defendant's actions, the defendant is entitled to qualified immunity. Malley v. Briggs, 475 U.S. 335, 341 (1986); Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). "[A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner." Malley, 475 U.S. at 341.

In analyzing whether an individual defendant is entitled to qualified immunity, the court considers whether plaintiff has alleged any violation of a clearly established right, and, if so, whether the individual defendant's conduct was objectively reasonable. Sieqert v. Gilley, 500 U.S. 226, 231 (1991); Duckett v. City of Cedar Park, 950 F.2d 272, 276-80 (5th Cir. 1992). In so doing, the court should not assume that plaintiff has stated a claim, i.e., asserted a violation of a constitutional right. Siegert, 500 U.S. at 232. Rather, the court must be certain that, if the facts alleged by plaintiff are true, a violation has clearly occurred. Connelly v. Comptroller, 876 F.2d 1209, 1212 (5th Cir. 1989). A mistake in judgment does not cause an officer to lose his qualified immunity defense. In Hunter, the Supreme Court explained:

The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law." Malley, [475 U.S.] at 343. . . . This accommodation for reasonable error exists because "officials should not err

always on the side of caution" because they fear being sued. . . .

502 U.S. at 229.

When a defendant relies on qualified immunity, the burden is on the plaintiff to negate the defense. Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010); Foster v. City of Lake Jackson, 28 F.3d 425, 428 (5th Cir. 1994).

IV.

Application of Law to Facts

Movants assert that they are entitled to qualified immunity from plaintiff's claims. Doc. 17 at 8-9; Doc. 19 at 6-8; & Doc. 20 at 8-9. Thus, the burden falls on plaintiff to show that movants have violated a clearly established statutory or constitutional right of plaintiff, and that movants took action that was objectively unreasonable. See Harlow, 457 U.S. at 818; Kovacic, 628 F.3d at 211. Plaintiff's claims are based on an asserted violation of plaintiff's First Amendment right to videotape the police station and the activities there and an asserted violation of his Fourth Amendment rights after he refused to identify himself. 

The "Doc. ___" references are to the numbers assigned to the referenced documents on the docket of this case, No. 4:15-CV-824-A.

The Supreme Court and Fifth Circuit have not addressed whether or not there is a First Amendment right to videotape police activities. Circuit courts that have addressed the issue in different contexts are split as to whether or not there is a clearly established First Amendment right to record the public activities of police. Compare Gericke v. Begin, 753 F.3d 1, 9 (1st Cir. 2014) (holding that there can be a First Amendment right to film a police officer making a traffic stop), and Smith v. City of Cumming, 212 F.3d 1332, 1333 (11th Cir. 2000) (holding that there is a First Amendment right to videotape police activity, subject to reasonable time, manner and place restrictions), with Kelly v. Borough of Carlisle, 622 F.3d 248, 262-63 (3d Cir. 2010) (holding that a First Amendment right to videotape police officers during a traffic stop was not clearly established), and Szymecki v. Houck, 353 Fed. App'x 852 (4th Cir. 2010) (agreeing with a lower court that there was qualified immunity because the asserted right to record police activities on public property was not clearly established in the Fourth Circuit).

An official is entitled to qualified immunity unless preexisting law makes apparent the unlawfulness of the official's conduct. See Anderson, 483 U.S. at 640. There is nothing in the case law to suggest that police officers are constitutionally  prohibited from making reasonable inquiry, and taking reasonable steps, to identify an unknown person who is seen videotaping their place of work and the place where they come and go in their private vehicles. In this day and age, the risk to public officials, particularly police officers, is such that a police officer could reasonably believe that he had the right to require plaintiff to identify himself after plaintiff was observed videotaping the police station and to take appropriate action in response to plaintiff's refusal to identify himself.

When the unique facts of this case, as alleged by plaintiff, are considered, all movants enjoy qualified immunity for the actions they took in response to plaintiff's conduct. Plaintiff has not carried his burden to show that movants are not entitled to qualified immunity as to the claims plaintiff is making against them. He has not demonstrated that any of the actions of movants violated any clearly established statutory or constitutional right of plaintiff or that any action taken by any of the movants was objectively unreasonable.

* * * * *

Tucked near the end of plaintiff's response is an alternative request that, if the court determines to grant all or part of movants' motions, the court give plaintiff leave to conduct discovery as to qualified immunity and "to amend his  lawsuit in accordance with what the discovery reveals and in accordance with findings of the Court." Doc. 15 at 22, § II. Nothing in the title of the responsive document discloses that any such request or motion is contained therein. Thus, plaintiff's request is made in violation of Rule LR 5.1(c) of the Local Civil Rules of this court, which requires that any filed document "must clearly identify each included pleading, motion, or other paper in its title."

The court further notes that it is the duty of the plaintiff, not the court, to evaluate the need for him to file an amended complaint after he receives and reviews motions to dismiss such as those filed by movants. Particularly is that the case here since plaintiff already has filed an amended complaint in response to earlier motions of movants to dismiss. Docs. 6, 7, 11, and 15.

For the reasons stated, the court is denying the request made by plaintiff on page 22 of plaintiff's response.

V.

Order

Therefore,

The court ORDERS that the motions to dismiss of Driver, Grinalds, and Dyess, be, and are hereby, granted, and that  plaintiff's claims against those defendants be, and are hereby, dismissed.

The court determines that there is no just reason for delay in, and hereby directs, entry of final judgment as to the dismissal of plaintiff's claims against Driver, Grinalds, and Dyess.

The court further ORDERS that from this point forward City of Port Worth is the only defendant in this action and that the style of this action shall be "Phillip Turner, Plaintiff, v. City of Fort Worth, Defendant."

SIGNED February 19, 2016.

/s/_________

JOHN McBRYDE

United States District Judge

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