Smith v. Cumming, U.S.C.A., 11th Circuit

Summary: private citizens brought an action under 42 U.S. Code § 1983 against a city and its police chief, alleging a violation of their right to videotape police actions. The district court found that plaintiffs had no constitutional right to videotape police actions in public.

Holding: a three-judge appellate panel disagreed with the trial court and found that the plaintiffs enjoyed a right, as private citizens, to videotape public police action. However, the court found that appellants failed to prove that the police conduct deprived them of a right, privilege or immunity secured by the Constitution or laws of the United States.

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

James Soloman Smith, Jr.,

Barbara Smith,

Plaintiffs-Appellants,

City of Cumming,

a Municipal Corporation,

Earl A.Singletary, et al.,

Defendants-Appellees.

No. 99-8199

212 F.3d 1332 (Published)

2000 U.S. App. Lexis 11970

May 31, 2000, Decided

May 31, 2000, Filed

Appeal from the U. S. District Court for the No. Dist. of Georgia, No. 97-01753-1-CV, Julie E. Carnes, Judge. Writ of Certiorari denied (Nov. 6, 2000) 531 U.S. 978. Before Birch and Barkett, Circuit Judges, and Alarcon*, Senior Circuit Judge. [*1332]

Barkett, Circuit Judge:

James and Barbara Smith filed suit against the City of Cumming, Georgia (the “City”), and its police chief, Earl Singletary, pursuant to 42 U.S.C. § 1983, alleging that the City police had harassed the Smiths, including a claim that Mr. Smith had been prevented from videotaping police actions in violation of Smith’s First Amendment rights. They appeal from summary judgment granted to the City and Singletary and from the denial of the Smiths’ motion to amend their complaint so as to name another City police chief, Ralph “Buck” Jones, n1 as a defendant in the [*1333] place of a defendant originally identified as “John Doe.” We affirm.

As to the First Amendment claim under Section 1983, we agree with the Smiths that they had a First Amendment right, subject to reasonable time, manner and place restrictions, to photograph or videotape police conduct. The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest. See Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994) (finding that plaintiffs’ interest in filming public meetings is protected by the First Amendment); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a “First Amendment right to film matters of public interest”); Iacobucci v. Boulter, 1997 U.S. Dist. Lexis 7010, No. CIV.A. 94-10531 (D.Mass, Mar. 26, 1997) (unpublished opinion) (finding that an independent reporter has a protected right under the First Amendment and state law to videotape public meetings); see also United States v. Hastings, 695 F.2d 1278, 1281 (11th Cir.1983) (finding that the press generally has no right to information superior to that of the general public) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978)); Lambert v. Polk County, 723 F. Supp. 128, 133 (S.D. Iowa 1989) (“It is not just news organizations ... who have First Amendment rights to make and display videotapes of events....”); Thompson v. City of Clio, 765 F. Supp. 1066, 1070-71 (M.D.Ala.1991) (finding that city council’s ban on member’s attempt to record proceedings regulated conduct protected by the First Amendment ); cf. Williamson v. Mills, 65 F.3d 155 (11th Cir.1995) (reversing district court’s grant of qualified immunity to a law enforcement officer who seized the film of and arrested a participant in a demonstration for photographing undercover officers). Thus, the district court erred in concluding that there was no First Amendment right.

Nonetheless, under Section 1983, the Smiths must prove that the conduct complained of deprived them of “a right, privilege or immunity secured by the constitution or laws of the United States.” Nail v. Community Action Agency of Calhoun County, 805 F.2d 1500, 1501 (11th Cir.1986). Although the Smiths have a right to videotape police activities, they have not shown that the Defendants’ actions violated that right. We find no merit in the remaining arguments presented in this appeal.

Affirmed.

Notes:

* Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation.

1. Jones and Singletary served together for several months as co-chiefs of police. Later, Singletary was chosen as chief, and when he left Cumming, Jones succeeded him as chief.