Florida Appeals Court Says The Right To Record Extends To Phone Calls With Cops

Legal Issues

from the what-part-of-'public'-do-you-not-understand dept

Well, this ought to prompt another round of police-protecting legislation in Florida. Governor Ron DeSantis recently signed two bills into law — one that creates a 25-foot “no go” zone around police officers and one that strips police oversight boards of their independence. And that’s on top of the immediate effort made by the legislature in reaction to a recent court ruling that said the state’s victims’ rights law couldn’t be used to withhold names of officers who engaged in excessive force in “response” to alleged, mostly made-up “crimes” against them (contempt of cop, etc.).

This recent decision [PDF] from a Florida appeals court says the state’s two-party consent law for recordings doesn’t extend to public officials. And that means the five bogus wiretapping charges brought against Michael Waite for daring to record his conversations with cops are going to disappear. (h/t WFLA)

As we’re all well aware, wiretapping laws have been abused by cops for years in states with two-party consent laws. Multiple people have been arrested for filming their interactions with police officers and hit with bogus wiretapping charges because the officers did not “consent” to be recorded. Most of the resulting lawsuits have not delivered the results cops want. Instead, a majority of them have established precedent that says the First Amendment protects recordings of public officials.

That’s what has happened here. Rather than dismiss the charges voluntarily, the state chose to fight this in court. And now there’s precedent preventing officers from pulling this sort of bullshit in the future.

The backstory is this: Michael Waite is no fan of local law enforcement. According to court records, he had been involved in a long property boundary dispute with the sheriff’s office and other city employees. Waite called 911 and accused deputies of trespassing. He recorded the call and forwarded it to the sheriff’s office. Rather than do nothing, the sheriff’s office obtained an arrest warrant. This led to an altercation when officers served the warrant, resulting in battery charges that aren’t going to be dismissed.

The important thing is the precedent. The appeals court says there’s no expectation of privacy in carrying out public duties while utilizing public equipment, i.e., department-issued cell phones and landlines.

Here, Waite recorded a telephone conversation with Sergeant Blair. He subsequently emailed the audio recording to the CCSO to report what he believed to be police misconduct and requested an internal investigation. It was later discovered that Waite had similarly recorded four other conversations with CCSO deputies. Under these circumstances, it cannot be said that any of the deputies exhibited a reasonable expectation of privacy that society is willing to recognize.

Importantly, this is based on the record before us as there is no dispute that all conversations concerned matters of public business, occurred while the deputies were on duty, and involved phones utilized for work purposes. As such, Waite did not violate section 934.03(1)(a) when he recorded the conversations with the deputies, all of whom were acting in their official capacities at the time of the recordings, just as if he had the conversations face-to-face.

This all seems extremely obvious and yet it took a second court’s review of the case to make it clear enough that Florida law enforcement officers will understand it. And that probably means some legislator has already fired up Word and is crafting a law that will exempt state law enforcement from… well, the First Amendment, I guess. The ruling here cites plenty of local precedent about the right to record, but Florida’s always imaginative lawmakers are rarely deterred by things like years of case law or the US Constitution itself.

Filed Under: florida, michael waite, public officials, recording police, ron desantis, two party consent, wiretapping