Smith v. City of Cumming

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 31 2000
THOMAS K. KAHN
No. 99-8199 CLERK
________________________
D. C. Docket No. 97-01753-1-CV-JEC
JAMES SOLOMAN SMITH, JR., BARBARA SMITH,
Plaintiffs-Appellants,
versus
CITY OF CUMMING, a Municipal Corporation,
EARL A. SINGLETARY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 31, 2000)
Before BIRCH and BARKETT, Circuit Judges, and ALARCON*, Senior Circuit
Judge.
BARKETT, Circuit Judge:
*
Honorable Arthur L. Alarcon, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
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,1 as a defendant in the
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”);
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.
2
Iacobucci v. Boulter, No. CIV.A. 94-10531 (D. Mass, Mar. 26, 1997) (unpublished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 (1978)); Lambert v. Polk
County, 723 F.Supp. 128, 133 (S.D. Iowa 1989) (“[I]t 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
3
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.
4