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2 Iacobucci v. Boulter, No. CIV.A. 94-10531 (D. Mass, Mar. 26, 1997) (unpublished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