DEWITT v. HANEY

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

STEVEN R. DEWITT,

Plaintiff,

v. Case No. 4:21-cv-340-AW-MAF

CERESSA HANEY, et al.,

Defendants.

_______________________________/

ORDER GRANTING MOTIONS TO DISMISS

Steven Dewitt visited the Intervention & Detention Alternatives Office—a

probation office in Tallahassee—to film content for a story. ECF No. 45 at 5-6.1

Probation officer Cerresa Haney told Dewitt he could not film in the office’s lobby

and that she would call the police if he did not stop. Id. at 7. Dewitt kept at it—

claiming he was conducting a “First Amendment audit”—and Haney called the

police. Id. Officers Trent Sexton and Melanie Pretti responded to the call. Id. at 8-

10. They told Dewitt to leave or face arrest. Id.

Dewitt sued Haney, Sexton, and Pretti, alleging First Amendment violations.

He seeks damages, a declaration that Defendants’ actions were unconstitutional, and

an order requiring Defendants to “take a training course” on the Constitution. Id. at

1 The facts come from the complaint and are accepted as true. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

11. All Defendants moved to dismiss, asserting (1) qualified immunity on the

damages claim and (2) a lack of jurisdiction as to Dewitt’s requested prospective

relief. ECF Nos. 51, 55.

In a report and recommendation, the magistrate judge concluded that (1) the

complaint stated a claim that Defendants violated Dewitt’s First Amendment right

to record “matters of public interest” but that (2) Defendants had qualified immunity.

ECF No. 62 at 17-24. All parties objected. Dewitt argues that qualified immunity

does not apply (both because Defendants acted beyond their discretionary authority

and because they violated a clearly established right) and that the magistrate judge

“entirely fail[ed] to address his declaratory relief claim.” ECF No. 68 at 2.2

Defendants object to the conclusion that the complaint alleges a constitutional

violation, although they welcome the qualified-immunity conclusion. ECF Nos. 64,

65. In other words, Defendants favor dismissal but do not care for the magistrate

judge’s reasoning.

Having reviewed the filings, and having considered de novo the issues

presented in the objections, I agree with the magistrate judge as to qualified

immunity. I do not reach the separate question of whether the complaint sufficiently

2 Dewitt moved for leave to file amended objections because he inadvertently

filed his original ones. See ECF Nos. 66, 67. This order grants that motion, and

Dewitt’s amended objections, ECF No. 68, are accepted as filed.

alleged a constitutional violation. And I dismiss the request for declaratory and

injunctive relief for lack of jurisdiction.

To establish qualified immunity, Defendants had the initial burden of showing

they acted within their discretionary authority. Ingram v. Kubik, 30 F.4th 1241, 1250

(11th Cir. 2022) (citing Piazza v. Jefferson County, 923 F.3d 947, 951 (11th Cir.

2019)). Dewitt objects to the magistrate judge’s conclusion that they made that

showing.

Dewitt did try to dispute whether Defendants acted within discretionary

authority. See ECF No. 58 at 6 (arguing “[Haney] was not completely within her

right to advise[] Plaintiff that he . . . had to leave” because IDAO is not a private

entity); ECF No. 61 at 6 (arguing that Sexton and Pretti acted “contradictive” of their

oaths to uphold the law). But his own allegations show otherwise. He alleges that

Haney was the “probation supervisor” in the probation office when she asked him

to stop recording or leave. It strains credulity to suggest that a probation supervisor

acts outside her discretionary authority by asking a visitor to leave a probation office.

The responding police officers—Sexton and Pretti—also acted in their discretionary

authority by responding to a call. Cf. Ellison v. Hobbs, 786 F. App’x 861, 873-74

(11th Cir. 2019) (describing officers’ response to a call as “classic police activity”).

In arguing otherwise, Dewitt suggests Defendants must have acted outside of

their discretionary authority because their conduct violated the law. See ECF No. 68

at 3-5 (arguing Defendants “did not have probable cause”); see also ECF No. 58 at

6; ECF No. 61 at 6. But this misunderstands the issue. “The inquiry is not whether

it was within the defendant’s authority to commit the allegedly illegal act.” Harbert

Int’l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998). What matters is “the

general nature of the defendant’s action,” without regard to whether that action “may

have been committed for an unconstitutional purpose, in an unconstitutional manner,

to an unconstitutional extent, or under constitutionally inappropriate circumstances.”

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). And

“the general nature” of the actions alleged here was within the Defendants’

discretionary authority.

This means the burden shifts to Dewitt to show qualified immunity is

inappropriate. Ingram, 30 F.4th at 1250 (citing Piazza). At the motion-to-dismiss

stage, he must allege facts showing the violation of a clearly established right. Id.

He has not shown that.

First, I note that Dewitt must offer sufficient precision as to the constitutional

right allegedly violated. The Supreme Court has repeatedly cautioned that “the

crucial question [is] whether the official acted reasonably in the particular

circumstances that he or she faced.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014).

Thus, the question is not whether Dewitt had a generalized or abstract right to

conduct so-called “First Amendment audits.” Dewitt himself recognizes that. ECF

No. 68 at 6. The question instead is whether Dewitt had a clearly established right

to record video in a probation office’s lobby without the office’s permission.

Dewitt must show that his right was clearly established in one of three ways:

(1) citing a “materially similar case” from the Supreme Court, Eleventh Circuit, or

Florida Supreme Court; (2) showing a “broad statement of principle within the

Constitution” clearly established the right; or (3) pointing to conduct “so egregious”

that a constitutional violation is obvious, even without similar controlling case law.

Id. at 661 (citations omitted). He has not satisfied any of those methods.

As to path one, Dewitt cites no “materially similar case.” He principally relies

on Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).3 While Smith held

citizens have a First Amendment right to photograph or film police conduct subject

to reasonable time, place, and manner restrictions, id. at 1333, it did not hold the

officers in that case unreasonably restricted plaintiffs’ speech. Id. Smith is also scant

on fact discussion, but its “allusion to [time, place, and manner] restrictions indicates

that the plaintiffs there attempted to film police activity while in a public forum of

some sort.” Crocker v. Beatty, 995 F.3d 1232, 1240-41 (11th Cir. 2021). Dewitt cites

no controlling case law (and the court is aware of none) holding that a lobby like

3 He also heavily relies on Dunn v. City of Fort Valley, 464 F. Supp. 3d 1347

(M.D. Ga. 2020). ECF No. 68 at 6-8. But because that is a district court case, it

cannot clearly establish the law. See Wilson, 54 F.4th at 661.

IDAO’s should be treated similarly. Indeed, privacy-sensitive IDAO matters suggest

its lobby is not the conventional public forum. See ECF No. 51 at 7-8 at 6; ECF

No. 55 at 13-14. “The dearth of detail about the contours of the right announced in

Smith undermines any claim that it provides officers ‘fair warning’ under other

circumstances” such as these. Crocker, 995 F.3d at 1241.

As to path two of clearly establishing the law, for the same reasons as above,

“it is decidedly not ‘obvious’ that Smith’s ‘general rule applies to the specific

situation in question.’” Id. 1240-41 (11th Cir. 2021) (quoting Youmans v. Gagnon,

626 F.3d 557, 563 (11th Cir. 2010)). Nor is this a path-three case with conduct “so

egregious” to make a constitutional violation obvious. See Loftus v. Clark-Moore,

690 F.3d 1200, 1205 (11th Cir. 2012) (describing path three as a “narrow” one only

encompassing conduct that “lies so obviously at the very core” of the constitutional

provision (quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir. 2012)).

Because it is plain here that Dewitt’s allegedly absolute right to film in the

probation-office lobby was not clearly established, Defendants are entitled to

qualified immunity from Dewitt’s § 1983 damages claim. That makes it unnecessary

to decide whether the complaint plausibly alleges a constitutional violation. Wilson

v. Sec’y, Dep’t of Corr., 54 F.4th 652, 660 (11th Cir. 2022) (citing Pearson v.

Callahan, 555 U.S. 223, 236-67 (2009) (holding that courts may “exercise their

sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first”)).

Moreover, the court lacks jurisdiction over Dewitt’s claims for injunctive and

declaratory relief. His complaint only alleges a past harm—meaning no Article III

case or controversy exists as to prospective relief. See City of Los Angeles v. Lyons,

461 U.S. 95, 101-05 (1983); Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir.

1985) (“[Plaintiff] alleges that he has been injured by [the defendant’s] past

conduct . . . . [Plaintiff] makes no factual allegation, however, that such conduct has

continued or will be repeated in the future.”).

Dewitt’s motion to file amended objections (ECF No. 67) is GRANTED.

Dewitt’s amended objections (ECF No. 68) are accepted as filed and are

OVERRULED. Defendants’ objections (ECF Nos. 64. 65) are SUSTAINED. The

report and recommendation (ECF No. 62) accepted to the extent it recommends

dismissal based on qualified immunity. It is rejected to the extent it recommends

concluding that there was a constitutional violation alleged.

The motions to dismiss (ECF Nos. 51, 55) are GRANTED. The third amended

complaint (ECF No. 45) is DISMISSED. The clerk will enter a judgment that says

“This case was resolved on a motion to dismiss. Plaintiff’s § 1983 damages claim is

dismissed because of qualified immunity. His § 1983 claim for declaratory and

injunctive relief is dismissed for lack of subject-matter jurisdiction.” The clerk will

then close the file.

SO ORDERED on March 31, 2023.

s/ Allen Winsor

United States District Judge