Hils v. Davis

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Dan Hils, et al.,

Plaintiffs,

v. Case No. 1:21cv475

Gabriel Davis, et al., Judge Michael R. Barrett

Defendants.

OPINION & ORDER

This matter is before the Court upon Plaintiffs’ Motion for Temporary Restraining

Order and Preliminary Injunction (Doc. 2); Defendants’ Motion to Dismiss (Doc. 14);

Plaintiffs’ Motion for Leave to File a Supplement to their Memorandum in Opposition to

the Motion to Dismiss (Doc. 17); and Defendants’ Supplemental Motion to Dismiss (Doc.

19). These motions have been fully briefed. (Doc. 11, 12, 15, 16, 18, 20, 21).

As a preliminary matter, Plaintiffs have filed a Motion for Leave to File a

Supplement to their Memorandum in Opposition to the Motion to Dismiss (Doc. 17), which

seeks to address the qualified immunity argument raised by Defendants in their Motion

to Dismiss. Because the Court does not reach the issue of qualified immunity, Plaintiffs’

Motion for Leave is DENIED as MOOT.

I. BACKGROUND

Plaintiffs Dan Hils, Charles Knapp, Ken Byrne, and Adarryl Burch are current

employees of the Cincinnati Police Department.

Defendants Gabriel Davis and Ikechuckwu Ekeke are employees of the Citizen

Complaint Authority (“CCA”). (Id., ¶¶7, 8). The CCA is a department within the City of

Cincinnati. The CCA is responsible for investigating complaints of police misconduct.

Defendant Davis is the Director of the CCA and Defendant Ekeke is an investigator with

the CCA. (Id., ¶¶7, 8).

Knapp, Byrne, and Burch, were the subjects of citizen complaints before the CCA.

(Doc. 1, ¶¶ 3-5). In his role as president of the Fraternal Order of Police, Lodge #69

(“FOP”), Hils represented the officers during the CCA’s investigation of these complaints.

(Doc. 1, ¶ 2). Hils became concerned with the “selective recording technique” used by

Ekeke during interviews with officers. (Id., ¶ 13). According to the Complaint, Ekeke

would turn off the CCA recording device at various times, which resulted in material,

exculpatory statements made by the officers not being recorded. (Id.) In response, Hils

began to make his own recordings of the interviews with the CCA. (Id., ¶ 15). However,

when Hils has attempted to record the interviews, Ekeke and Davis terminated the

interviews and threatened the officers with discipline for recording the interviews. (Id., ¶

16). Plaintiffs have attached a script to their Complaint which contains the CCA policy

regarding recording. (Doc. 1, PAGEID 9). It appears that this script was used during

interviews with officers, and the officers were told:

At this time, I’m advising you that CCA does not permit any persons who

are being interviewed or representatives of those persons to make their own

recordings of witness interviews or utilize personal recording devices during

the interview.

(Id.)

Plaintiffs claim Defendants’ no-recording policy violates their First Amendment

right to record public officials in the performance of their duties. (Id., ¶¶ 23-24). Plaintiffs

also bring a First Amendment retaliation claim, claiming that Defendants retaliated against

Plaintiffs for their assertion of their rights. (Id., ¶¶ 27-29). Plaintiffs’ claims are brought

pursuant to 42 U.S.C. § 1983.

In their Motion for Temporary Restraining Order and Preliminary Injunction,

Plaintiffs seek an order enjoining Defendants from “preventing the tape or video recording

by Plaintiff Hils in any City of Cincinnati City Complaint Authority matter in which he is

representing any City of Cincinnati Police Officer, or the tape or video recording by any

other Plaintiff of an interview before the City of Cincinnati City Complaint Authority in

which that Plaintiff is the subject of the investigation;” and enjoining Defendants “from

taking any adverse action against any of the Plaintiffs solely due to their tape or video

recording proceedings before the City of Cincinnati City Complaint Authority.” (Doc. 2)

In their original Motion to Dismiss, Defendants move pursuant to Rule 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiffs’ claims. Defendants

argue: (1) Plaintiffs lack standing to challenge the CCA recording policy because they

have not suffered any cognizable injury; (2) Plaintiffs have raised claims which constitute

labor disputes subject to the exclusive jurisdiction of the Ohio State Employment

Relations Board (“SERB”); (3) Plaintiffs have failed to state a claim upon which relief may

be granted because there is no First Amendment right to record CCA interviews; and (4)

Davis and Ekeke, are entitled to qualified immunity.

In their supplemental Motion to Dismiss, Defendants explain that concurrent with

this lawsuit, the FOP filed a charge with SERB alleging that based on the same set of

events, the City committed an unfair labor practice by preventing the FOP “from recording

interviews.” (Doc. 11-1). Defendants explain further that on December 2, 2021, the City

and the FOP entered into a settlement agreement resolving the unfair labor practice

charge. (See Doc. 19-1). According to Defendants, the CCA has stopped using the

“script” or “policy” which was attached as Exhibit A to Plaintiffs’ Complaint, and the

settlement clarifies the recording policies and practices of the CCA. (Doc. 1, PAGEID 9).

Defendants have filed a copy of the settlement agreement between the City and the FOP,

which provides that the City agrees to the following:

. . .

2. Should the Citizen Complaint Authority choose to conduct an interview of

an FOP member, the CCA will utilize at least one recording device that will

always be activated when the FOP member enters the room for their CCA

interview.

3. With respect to the operation of its recording devices, no CCA recording

device will be turned off until the interview is concluded, unless the

Investigator announces a break in the interview. Before any recording is

stopped, the Investigator shall advise all parties the recording is being

stopped and note the start and stop time on the record. Investigators will

refrain from asking questions during any break in recording.

4. Upon their request, FOP members will be provided a copy of the

recording following the conclusion of their CCA interview.

. . .

(Doc. 19-1, PAGEID 160). Defendants argue that as a result of this settlement, Plaintiffs’

constitutional claims for declaratory and injunctive relief are now moot.

II. ANALYSIS

1. Preliminary injunction standard

“Four factors determine when a court should grant a preliminary injunction: (1)

whether the party moving for the injunction is facing immediate, irreparable harm, (2) the

likelihood that the movant will succeed on the merits, (3) the balance of the equities, and

(4) the public interest.” D.T. v. Sumner Cty. Sch., 942 F.3d 324, 326 (6th Cir. 2019) (citing

Benisek v. Lamone, 138 S. Ct. 1942, 1943-44 (2018)). These four factors are “to be

balanced, not prerequisites that must be met.” Jones v. City of Monroe, 341 F.3d 474,

476 (6th Cir. 2003) (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir. 1984)).

However, as the Sixth Circuit has recently explained:

“When a party seeks a preliminary injunction on the basis of a potential

constitutional violation, ‘the likelihood of success on the merits often will be

the determinative factor.’” [City of Pontiac Retired Emps. Ass'n v.]

Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (quoting Obama for Am. v.

Husted, 697 F.3d 423, 436 (6th Cir. 2012)). In addition to demonstrating a

likelihood of success on the substantive claims, a plaintiff must also show a

likelihood of success of establishing jurisdiction. Waskul v. Washtenaw

Cnty. Cmty. Mental Health, 900 F.3d 250, 256 n.4 (6th Cir. 2018). If a

plaintiff cannot show a likelihood of jurisdiction, then the court will deny the

preliminary injunction. Id.

Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 554 (6th Cir. 2021). Here,

Defendants have raised two jurisdictional challenges: standing and mootness. The Court

will address those challenges before turning to a likelihood of success on the substantive

claims.

2. Article III Mootness

Defendants maintain that Plaintiffs’ claims for or injunctive and declaratory relief

are moot because the settlement agreement legally binds the City to its new policies; and

there is no basis for a belief that the City will revert to the now defunct recording policy.

Plaintiffs respond that the settlement between the FOP and the City does not provide

them with the relief they seek because it does not permit the officers to record the

interviews and it does not prohibit retaliation against Plaintiffs. Plaintiffs also point out

that the Complaint seeks money damages which are not addressed by the change in

policy.

As the Sixth Circuit has recently reiterated: “Mootness is a high hurdle. The

government must show that a court could order no ‘effectual relief whatever’ for the

plaintiffs’ injury.” Vitolo v. Guzman, 999 F.3d 353, 359 (6th Cir. 2021) (quoting Chafin v.

Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013); see also Ramsek v.

Beshear, 989 F.3d 494, 499 (6th Cir. 2021) (“To assess whether a case is moot, we ask

‘whether the relief sought would, if granted, make a difference to the legal interests of the

parties.’”) (quoting McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458

(6th Cir. 1997) (en banc)).

“Voluntary cessation of the alleged illegal conduct does not, as a general rule, moot

a case and ‘deprive the tribunal of power to hear and determine the case.’” Speech First,

Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019) (quoting Los Angeles Cty. v. Davis,

440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). “Voluntary cessation will only

moot a case where there is ‘no reasonable expectation that the alleged violation will

recur,’ and ‘interim relief or events have completely and irrevocably eradicated the effects

of the alleged violation.’” Id. (quoting Davis, 440 U.S. at 631, 99 S.Ct. 1379 (cleaned up)).

However, as the Sixth Circuit has explained:

“[T]he burden in showing mootness is lower when it is the government that

has voluntarily ceased its conduct[,]” because the government's ability to

“self-correct[ ] provides a secure foundation for a dismissal based on

mootness so long as [the change] appears genuine.” Speech First, 939 F.3d

at 767 (quoting Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981

(6th Cir. 2012)). “[W]e presume that the same allegedly wrongful conduct

by the government is unlikely to recur.” Id. However, “[w]hile all

governmental action receives some solicitude, not all action enjoys the

same degree of solicitude ... [the Court] takes into account the totality of the

circumstances surrounding the voluntary cessation, including the manner in

which the cessation was executed.” Id.

Thomas v. City of Memphis, Tennessee, 996 F.3d 318, 324 (6th Cir. 2021). The Sixth

Circuit has “provided the following framework for addressing what degree of solicitude—

or deference—is owed to a government entity that voluntarily ceases allegedly illegal

conduct:”

Where the government voluntarily ceases its actions by enacting new

legislation or repealing the challenged legislation, that change will

presumptively moot the case unless there are clear contraindications that

the change is not genuine.

On the other hand, where a change is merely regulatory, the degree of

solicitude the voluntary cessation enjoys is based on whether the regulatory

processes leading to the change involved legislative-like procedures or

were ad hoc, discretionary, and easily reversible actions.

If the discretion to effect the change lies with one agency or individual, or

there are no formal processes required to effect the change, significantly

more than the bare solicitude itself is necessary to show that the voluntary

cessation moots the claim.

Where regulatory changes are effected through formal, legislative-like

procedures, we have found that to moot the case the government need not

do much more than simply represent that it would not return to the

challenged policies.

Id. at 324 (citing Speech First, 939 F.3d at 768-69). Here, the change made by

Defendants is the result of something akin to a regulatory change implemented by the

City. While the policy change is a pursuant to a “discretionary” procedure, the challenged

policy is the subject of a settlement agreement between the City and FOP. This

settlement agreement increases the “formality” of a government's regulatory change. See

Thomas, 996 F.3d at 325. Given the totality of the circumstances surrounding the City’s

voluntary cessation, there is no reasonable expectation that the alleged violation will

recur. Therefore, to the extent that Plaintiffs seek an injunction or declaratory relief based

upon the CCA’s selective recording of interviews, Plaintiffs’ claim is moot.

However, Plaintiffs argue that the settlement agreement between the City and the

FOP has no impact on their claim that the City has violated their right to record public

officials in the performance of their duties. Plaintiffs explain that they still seek an

injunction which would permit officers being interviewed by the CCA to also record the

interviews. Defendants maintain that Plaintiffs lack standing to bring this claim because

they have not identified any legally cognizable harm which will result if they are prohibited

from making their own personal recordings of CCA interviews.

3. Standing

Standing requires plaintiffs to demonstrate “actual present harm or a significant

possibility of future harm.” Savage v. Gee, 665 F.3d 732, 740 (6th Cir. 2012) (quoting

National Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997)). To have

standing, a plaintiff must (1) have suffered an injury in fact, (2) that is fairly traceable to

the challenged action of the defendant, and (3) that will likely be redressed by a favorable

decision. Lujan v. Def's of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L.Ed.2d

351 (1992). “A plaintiff bears the burden of demonstrating standing and must plead its

components with specificity.” Coyne v. American Tobacco Co., 183 F.3d 488, 494 (6th

Cir. 1999) (citing Valley Forge Christian College v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)).

Before beginning this analysis, the Court must make clear which policy is being

challenged. Defendants explain that they have stopped using the script or policy attached

to Plaintiffs’ Complaint which provided that “CCA does not permit any persons who are

being interviewed or representatives of those persons to make their own recordings of

witness interviews or utilize personal recording devices during the interview.” (Doc. 1,

PAGEID 9; Doc. 19, PAGEID 154). However, unlike the selective recording practice, the

policy prohibiting Plaintiffs from recording interviews is not a part of the settlement

agreement with the FOP. Plaintiffs allege that Defendants Davis and Ekeke have

indicated that they will continue to prohibit the personal recording of interviews of the

CCA. (Doc. 1, ¶ 20). Moreover, in the briefing for its Motion to Dismiss, the City has

made clear that it takes the position that there is no First Amendment right to individually

record the interviews of the CCA. (Doc. 21, PAGEID 169). Therefore, the Court must

conclude, based on the current record, that if Plaintiffs attempted to record the interviews,

they would once again be prohibited from doing so. Accordingly, the Court will treat

Plaintiffs’ claim as a pre-enforcement First Amendment challenge and turn to a

determination regarding the injury-in-fact requirement.

To satisfy the injury-in-fact requirement, Plaintiffs must allege “an intention to

engage in a course of conduct arguably affected with a constitutional interest, but

proscribed by a statute, and there exists a credible threat of prosecution thereunder.” See

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159-160, 134 S.Ct. 2334, 189 L.Ed.2d

246 (2014) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99

S.Ct. 2301, 60 L.Ed.2d 895 (1979)). Because Plaintiffs have alleged facts demonstrating

that they face a credible threat that the City’s no-recording policy will be enforced against

them in the future, the Court concludes that Plaintiffs have standing to assert their pre-

enforcement challenge to the policy.

Nevertheless, the standing analysis and the substantive analysis are not

coextensive. See Warth v. Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d

343 (1975) (explaining that “standing in no way depends on the merits of the plaintiff's

contention that particular conduct is illegal”). Defendants argue that Plaintiffs have failed

to state a claim under the First Amendment. The Court will now turn to the analysis of

the merits of Plaintiffs’ claim under the motion to dismiss standard. Because Defendants’

position on Plaintiffs’ likelihood of success on the merits is identical to their motion to

dismiss, the Court will analyze these questions together. Accord Easterling v. Cassano's

Inc., No. 3:15-CV-032, 2015 WL 1396462, at *1 (S.D. Ohio Mar. 25, 2015); see also

Leisure v. Franklin Cty. Ct. of Common Pleas, No. 2:05-CV-1123, 2006 WL 1281764, at

*6 (S.D. Ohio May 8, 2006) (“A plaintiff who fails to state a claim upon which relief can be

granted cannot show a likelihood of success on the merits.”) (citations omitted)).

4. First Amendment

In their Complaint, Plaintiffs bring two claims under the First Amendment. The first

claim is that Defendants’ no-recording policy violates their First Amendment right to

record public officials in the performance of their duties. The second claim is that

Defendants have retaliated against Plaintiff for their assertion of their First Amendment

rights.

In order to survive a motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

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

570 (2007)). A plaintiff’s claim has this baseline plausibility if the facts stated therein

“allow[] the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. The standard set forth by the Supreme Court in Twombly and

Iqbal requires “more than a sheer possibility” that the defendant is liable, but a claim need

not rise to the level of probability. Id.

Plaintiffs’ claim challenging the no-recording policy is based on access to

information as opposed to the right to expression. See S.H.A.R.K. v. Metro Parks Serving

Summit Cty., 499 F.3d 553, 559 (6th Cir. 2007); see also Knight v. Montgomery Cty., No.

3:19-CV-00710, 2019 WL 13109761, at *2 (M.D. Tenn. Aug. 16, 2019) (“the Court is not

convinced that a public forum analysis applies here, because that analysis focuses on the

government's interference with a plaintiff's ‘speech or other expressive activity’ and the

act of merely recording a governmental meeting is not expressive activity.”). “Although

access cases are rooted in First Amendment principles, they have developed along

distinctly different lines than have freedom of expression cases.” S.H.A.R.K., 499 F.3d

at 559. Under this line of cases, courts have concluded that “the First Amendment does

not require unfettered access to government information.” Whiteland Woods, L.P. v.

Township of West Whiteland, 193 F.3d 177, 182 (3rd Cir. 1999); see also S.H.A.R.K.,

499 F.3d at 560 (“[n]either the First Amendment nor the Fourteenth Amendment

mandates a right of access to government information or sources of information within

the government's control.”) (quoting Houchins v. KQED, Inc., 438 U.S. 1, 15, 98 S.Ct.

2588, 57 L.Ed.2d 553 (1978)).

In that vein, courts have held that “[t]he First Amendment does not require states

to accommodate every potential method of recording its proceedings, particularly where

the public is granted alternative means of compiling a comprehensive record.” Maple

Heights News v. Lansky, No. 1:15CV53, 2017 WL 951426, at *3 (N.D. Ohio Mar. 10,

2017) (quoting Whiteland, 193 F.3d at 183); see also Combined Communications Corp.

v. Finesilver, 672 F.2d 818, 821 (10th Cir. 1982) (upholding ban on the use of television

cameras during court-ordered redistricting negotiations where the press was free to

attend, take notes, and disseminate any information obtained).

In order to determine whether a plaintiff has a lawful right of access to the

information and the government’s rule blocking access is unconstitutional, the Sixth

Circuit has established the following framework:

First, we ask what rule the government is invoking that prohibits the plaintiffs

from access to information, and whether that rule “selectively [ ] delimit[s]

the audience.” . . . Second, we inquire into the government's stated interest

for invoking the rule. Third, we apply the applicable test to determine

whether the government's stated interest is sufficiently related to the means

of accomplishing that interest: if the rule does not selectively delimit the

audience, we uphold the restriction if it is reasonably related to the

government's interest; if the rule does selectively delimit the audience, a

stricter level of scrutiny will apply.

S.H.A.R.K., 499 F.3d at 560-61 (quoting D'Amario v. Providence Civic Ctr. Auth., 639

F.Supp. 1538, 1543 (D.R.I. 1986) aff'd, 815 F.2d 692 (1st Cir.), cert. denied, 484 U.S.

859, 108 S.Ct. 172, 98 L.Ed.2d 125 (1987)).

Here, Defendants are prohibiting officers who are being interviewed by the CCA

from recording the interviews. There is nothing in the record indicating that this no-

recording policy “selectively delimits the audience.” Defendants ban all recording except

for the recording made by CCA itself. Defendants explain that their interest in invoking

the ban on recording is to maintain order; and to ensure that what is discussed during the

interview is not improperly broadcast and, in turn, improperly used to influence the

testimony of others appearing before the CCA. (Doc. 14, PAGEID 104-105). Because

the policy does not selectively delimit the audience, Defendants’ ban on recording will be

upheld if it is reasonably related to this stated interest.

As one district court has observed: “[u]nder the rational basis review, a court

usually will uphold regulations because ‘the state's important regulatory interests are

generally sufficient to justify them.’” McKay v. Federspiel, No. 14-CV-10252, 2014 WL

7013574, at *6 (E.D. Mich. Dec. 11, 2014), aff'd, 823 F.3d 862 (6th Cir. 2016) (quoting

Citizens for Legislative Choice v. Miller, 144 F.3d 916, 921 (6th Cir.1998)). The Court

has little hesitation finding that Defendants’ interest is sufficient here. The stated mission

of the CCA is “to investigate serious interventions by police officers, including, but not

limited to discharging of firearms, deaths in custody, and major uses of force, and to

review and resolve citizen complaints of law enforcement misconduct in a fair and efficient

manner.” Citizen Complaint Authority, https://www.cincinnati-oh.gov/ccia/ (last visited

3/3/2022). The CCA cannot carry out its mission in a fair and efficient manner if parts of

the investigation are recorded and then released before the investigation is completed.

The Court notes that in public access cases, the Supreme Court “has traditionally

considered whether public access plays a significant positive role in the functioning of the

particular process in question.” Press-Enter. Co. v. Superior Ct. of California for Riverside

Cty., 478 U.S. 1, 8–9, 106 S. Ct. 2735, 2740, 92 L. Ed. 2d 1 (1986) (citing Globe

Newspaper Co. v. Superior Ct. for Norfolk Cty., 457 U.S. 596, 606, 102 S. Ct. 2613, 2620,

73 L. Ed. 2d 248 (1982)). This is because:

Although many governmental processes operate best under public scrutiny,

it takes little imagination to recognize that there are some kinds of

government operations that would be totally frustrated if conducted openly.

A classic example is that “the proper functioning of our grand jury system

depends upon the secrecy of grand jury proceedings.”

Id. (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218, 99 S.Ct. 1667,

1672, 60 L.Ed.2d 156 (1979)). Similarly, the investigation conducted by the CCA would

be totally frustrated if recordings were to be made public before the investigation was

complete. Accord United States v. Miami Univ., 294 F.3d 797, 823 (6th Cir. 2002) (“We

find that public access will not aid in the functioning of traditionally closed student

disciplinary proceedings; accordingly, The Chronicle does not enjoy a qualified First

Amendment right of access to such proceedings.”). Therefore, the Court concludes that

the no-recording policy is reasonably related to the legitimate concern that the CCA’s

investigations are fair and efficient. Accord S.H.A.R.K., 499 F.3d at 563 (concluding state

park’s prohibition on disturbing trees and its policy for handling found property justified

removal of cameras placed in the park by animal rights group in order to videotape

government-ordered deer culling in the park after hours).

In reaching this conclusion, the Court distinguishes this case from those cases in

which courts have found that there is a constitutional right to film an encounter with a

police officer. This case involves an internal investigation of police activity, which is

entirely different than a citizen’s encounter with a police officer. Accord Clark v. Stone,

998 F.3d 287, 303 (6th Cir. 2021), cert. denied, 142 S. Ct. 773 (2022) (rejecting the

argument there is a clearly established First Amendment right to record social workers

conducting home visits as part of their investigations because some courts have found a

constitutional right to film an encounter with a police officer).1

The Court also distinguishes this case from the cases in which courts have

recognized that videotaping or photographing public officials on public property could

invoke First Amendment protection. See, e.g., Smith v. City of Cumming, 212 F.3d 1332,

1333 (11th Cir. 2000) (“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.”). The Court recognizes that “the First Amendment goes beyond

1Moreover, there are conflicting cases from within the Sixth Circuit as to whether there is

a clearly established First Amendment right to film police officers carrying out their duties.

Davis-Bey v. City of Warren, No. 16-CV-11707, 2018 WL 895394, at *6 (E.D. Mich. Jan. 16,

2018), report and recommendation adopted, No. 16-CV-11707, 2018 WL 878879 (E.D. Mich.

Feb. 14, 2018) (citing cases); but see Turner v. Lieutenant Driver, 848 F.3d 678, 687 (5th Cir.

2017) (“No circuit has held that the First Amendment protection does not extend to the video

recording of police activity, although several circuit courts have explained that the law in their

respective circuits is not clearly established while refraining from determining whether there is a

First Amendment right to record the police.”).

protection of the press and the self-expression of individuals to prohibit government from

limiting the stock of information from which members of the public may draw.” First Nat'l

Bank v. Bellotti, 435 U.S. 765, 783, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). However,

much of the analysis in these cases centers on the right to record matters taking place in

public spaces. Here, the CCA interviews are not taking place in public, and therefore it

is unnecessary to consider whether the recording may be subject to reasonable time,

place, and manner restrictions.

Moreover, “neither the public nor the media has a First Amendment right to

videotape, photograph, or make audio recordings of government proceedings that are by

law open to the public.” Rice v. Kempker, 374 F.3d 675, 678 (8th Cir. 2004); see also

Pizzuto v. Tewalt, 997 F.3d 893, 906 (9th Cir. 2021) (“We find it implausible that the First

Amendment right of access to governmental proceedings gives the public the right to

videotape, photograph, or otherwise record those proceedings.”); Wisconsin

Interscholastic Athletic Ass'n v. Gannett Co., 658 F.3d 614, 627-28 (7th Cir. 2011)

(explaining that although there may be an affirmative right to attend a public proceeding,

“the Supreme Court has not yet recognized any corollary right guaranteed by the First

Amendment entitling the media to record, let alone broadcast live, what happens at that

proceeding.”). Here, Plaintiffs are permitted to be present at the CCA interviews with their

representative, take notes, and upon request, will be provided a copy of a recording of

the interview at its conclusion. Therefore, the no-recording policy does not prevent

Plaintiffs from using other means of accessing the information they seek. Accord Carlow

v. Mruk, 425 F. Supp. 2d 225, 248 (D.R.I. 2006) (finding no deprivation of First

Amendment rights because inability to videotape the meeting did not in any way impact

plaintiffs’ right to be present at the annual meeting of fire district); Maple Heights News v.

Lansky, No. 1:15CV53, 2017 WL 951426, at *3 (N.D. Ohio Mar. 10, 2017) (concluding

that plaintiffs’ First Amendment rights were not violated when the defendant turned off

and removed the plaintiffs' video camera from a city council meeting because the entire

meeting was audio-recorded and made available to plaintiffs); United States v. McDougal,

103 F.3d 651, 658 (8th Cir. 1996) (concluding “the public’s interest in gaining access to

the videotape recording [of the former president’s] testimony is only marginal because the

testimony has already been made visually and aurally accessible in the courtroom and

the transcript has been widely distributed and publicized”). Accordingly, the Court finds

that Plaintiffs have failed to state a claim that the no-recording policy violates their First

Amendment rights.

Plaintiffs’ retaliation claim fails for the same reason. A First Amendment retaliation

claim requires proof that “(1) the plaintiff engaged in constitutionally protected conduct;

(2) an adverse action was taken against the plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) the adverse action was

motivated at least in part by the plaintiff's protected conduct.” Paterek v. Vill. of Armada,

Mich., 801 F.3d 630, 645 (6th Cir. 2015). Because the Court has concluded that recording

CCA interviews is not constitutionally protected conduct, Plaintiffs have failed to state a

claim for First Amendment retaliation. Accordingly, Defendants’ Motion to Dismiss and

Supplemental Motion to Dismiss are GRANTED.

III. CONCLUSION

Based on the foregoing, it is hereby ORDERED that:

1. Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction

(Doc. 2) is DENIED;

2. Defendants’ Motion to Dismiss (Doc. 14) is GRANTED;

3. Plaintiffs’ Motion for Leave to File a Supplement to their Memorandum in

Opposition to the Motion to Dismiss (Doc. 17) is DENIED as MOOT;

4. Defendants’ Supplemental Motion to Dismiss (Doc. 19) is GRANTED; and

5. This matter shall be CLOSED and TERMINATED from the active docket of this

Court.

IT IS SO ORDERED.

/s/ Michael R. Barrett

Michael R. Barrett

United States District Judge