Leslie Baas v. Michael A. Fewless

Opinion

Case: 17-11225 Date Filed: 04/02/2018 Page: 1 of 11

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-11225 ________________________

D.C. Docket No. 6:15-cv-565-RBD-KRS

LESLIE BAAS, TRACY OSTEEN and DOYLE NAPIER,

Plaintiffs–Appellants,

versus

MICHAEL A. FEWLESS and JOHN MCMAHON,

Defendants–Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(April 2, 2018)

Before WILSON and BLACK, Circuit Judges, and SCHLESINGER, ∗ District Judge.

∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation. Case: 17-11225 Date Filed: 04/02/2018 Page: 2 of 11

SCHLESINGER, District Judge:

Leslie Baas, Tracy Osteen, and Doyle Napier appeal an adverse summary

judgment granted in favor of Appellees Michael Fewless and John McMahon.

This appeal requires us to answer whether the Driver’s Privacy Protection Act

excepts authorized acts of lobbying from its purview. We hold that it does. We

further hold that Appellees are entitled to qualified immunity.

I

In 2011, Fewless served as Captain of the governmental affairs section of the

Orange County Sheriff’s Office (“OCSO”), a position which required him to work

with state, local, and federal representatives concerning the passage of local, state,

and federal legislation. Fewless spent three or more days each week in Tallahassee

while the Florida Legislature was in session, often testifying before both of houses.

Fewless also assisted the Florida Sheriff’s Association (“FSA”) with certain bills

that came before the Florida Legislature.

In April 2011, while attending an FSA meeting, a discussion arose

concerning a pending Florida Senate bill that, if passed, would permit the open

carry of firearms in Florida (“Bill”). During the meeting, one law enforcement

officer remarked that many members of the “One Percenters Motorcycle Clubs”1

possessed concealed carry permits, and would be permitted to carry their weapons

1 The One Percenters Motorcycle Clubs refers to a collection of motorcycle clubs, and includes the Outlaws Motorcycle Club. Appellants are members of the Outlaws Motorcycle Club. 2 Case: 17-11225 Date Filed: 04/02/2018 Page: 3 of 11

openly if the Bill passed. As Florida’s law enforcement community was

vehemently opposed to open carry, the OCSO tasked Fewless with opposing the

Bill.

At some point, Fewless determined that presenting Florida’s Senate

Judiciary Committee with photos of One Percenters would “shock the Committee”

and bolster support against the Bill’s passage. Fewless asked John McMahon, an

intelligence agent with the OCSO, to procure the photos.

Based on Fewless’ request, Agent McMahon selected twenty-two photos of

One Percenter Motorcycle Club members, each of whom possessed concealed

carry permits. The photos chosen were either booking or driver’s license

photographs. Agent McMahon subsequently emailed the photos to Fewless and

the two discussed the general backgrounds of those pictured. Fewless ultimately

selected the seven photos he thought best personified the negative impact open

carry would have in Florida.

The following day, Fewless forwarded the e-mail containing such photos to

Tim Cannon, the assistant director of the FSA, for printing and packaging. The

packages contained only photos and no other identifying information. Fewless

personally delivered these packages to each Committee member’s office. He then

testified before the Committee that the photos exemplified the type of persons that

law enforcement would have concerns about should the Bill pass. Fewless did not

3 Case: 17-11225 Date Filed: 04/02/2018 Page: 4 of 11

identify the people in the photos by name or address, nor did he actually present

the photos at the Committee hearing.

In April 2015, Plaintiffs filed a three-count complaint alleging that Fewless

and Agent McMahon violated the Driver’s Privacy Protection Act (DPPA) by

obtaining and disclosing each Plaintiff’s driver’s license photo for an

impermissible purpose. Defendants moved for summary judgment. The District

Court granted the motion, concluding that the DPPAs’s Government Function

Exception encapsulated “lobbying” on the basis of the DPPA’s “broad language”

and Florida’s statutory definition of “lobbying.” Appellants filed a motion for

reconsideration, which the District Court also denied. This appeal followed.

II

We review a district court’s grant of summary judgment de novo, “applying

the same standards applied by the district court.” Acevedo v. First Union Nat.

Bank, 357 F.3d 1244, 1246–47 (11th Cir. 2004). Summary judgment is proper if

“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party bears the

initial burden of demonstrating the absence of a genuine dispute of material fact.”

FindWhat Inv’r Grp. v. FindWhat.com, 658 F.3d 1282, 1307, (11th Cir. 2011)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A “material” fact is

one that “might affect the outcome of the suit under the governing law.” Anderson

4 Case: 17-11225 Date Filed: 04/02/2018 Page: 5 of 11

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

We view all submitted evidence in the light most favorable to the non-

moving party. Hillburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1225 (11th

Cir. 1999) (citing Fed. R. Civ. P. 56(c)).

III

We begin with the DPPA. The DPPA prohibits the obtainment or

disclosure of personal information from motor vehicle records for any use not

permitted under the fourteen specific exceptions delineated in § 2721(b) the Act.

18 U.S.C. § 2722(a). The exception relevant to this appeal—colloquially known as

the “Government Function Exception”—permits disclosure of personal

information for “use by any government agency, including any court or law

enforcement agency, in carrying out its functions . . . .” 18 U.S.C. 2271(b)(1). The

chief question here is whether lobbying by a government agent constitutes a

government function within the meaning of the Government Function Exception.

Because the DPPA does not define “functions,” interpretation of the term is

a matter of federal law. Rine v. Imagitas, Inc., 590 F.3d 1215, 1223 (11th

Cir. 2009). In Rine, we interpreted the DPPA and construed “function” in

accordance with its dictionary definition, stating: “ ‘Function’ is defined as ‘the

action for which a person or thing is specially fitted, used, or responsible or for

which a thing exists; the activity appropriate to the nature or position of a person or

5 Case: 17-11225 Date Filed: 04/02/2018 Page: 6 of 11

thing.’ ” Id. (quoting Webster’s Third New Int’l Dic. 920 (3d ed. 1966)). Whether

activities challenged under the DPPA are appropriate, we concluded, is answered

by reference to state law. Id.

The question then, becomes whether Florida law characterizes lobbying as

an appropriate government function. Florida’s statute governing lobbying before

the Florida Legislature defines “lobbyist” as “a person who is principally employed

for governmental affairs by another person or governmental entity to lobby on

behalf of that person or governmental entity.” Fla. Stat. § 11.045(1)(g) (2015).

The statute further defines “lobbying” as “influencing or attempting to influence

legislative action or nonaction through oral or written communication or an attempt

to obtain the goodwill of a member or employee of the Legislature.” §

11.045(1)(f). Thus, as a matter of law, attempts to influence the Florida

Legislature by persons employed to lobby on behalf of a state entity—viz., a

Florida Sheriff’s Office—are excepted from the DPPA’s purview.

On appeal, Appellants do not dispute lobbying falls within the scope of the

governmental duties of the OCSO and Fewless. 2 Rather, Appellants assert that a

genuine dispute of material fact exists as to whether Fewless’ activities were 2 OCSO General Order 3.1.0 establishes the OCSO’s Legislative and Government Affairs Section, of which Appellee Fewless is a member, as “the liaison between the Sheriff’s Office and various branches of Orange County, State of Florida and Federal Governments.” As the OCSO’s “liaison,” Fewless spent three or more days a week in Tallahassee while the Florida Legislature was in session, often testifying before both offices. As such, Appellee Fewless’ job description falls squarely within Florida’s definition of “lobbyist.” See Fla. Stat. § 11.045(1)(g).

6 Case: 17-11225 Date Filed: 04/02/2018 Page: 7 of 11

proper or authorized attempts to influence the Florida Senate Judiciary Committee

on behalf of the OCSO. To defeat summary judgment, however, required

Appellants to submit evidence to the District Court in support of that assertion.

See Fed. R. Civ. P. 56(c).

The evidence Appellants chiefly rely on is the OSCO documentation

imposing disciplinary against Agent McMahon. However, the documentation

reflects that Agent McMahon was disciplined for admitting ignorance as to the

existence and application of the DPPA and Florida statutes, not for a violation of

those laws. Fewless was not disciplined at all. As such, nothing in the disciplinary

documentation would justify the District Court, or this one, in drawing an

inference that the challenged action was an unauthorized act of lobbying.

Appellants further submit that Fewless’ personal opinion of the Bill suggests

the lobbying was not performed as part of a government function. Fewless’

deposition testimony reflects his concerns about the impact open carry would have

on Florida’s tourism industry. Nonetheless, Fewless’ private opinion about the

Bill is not evidence that the lobbying was performed in his personal capacity,

rather than his official one. And it is not evidence that the OCSO’s rationale for

lobbying against the bill was unrelated to the execution of their governmental

duties.

Instead, the record reflects that Fewless used the photos while acting on

7 Case: 17-11225 Date Filed: 04/02/2018 Page: 8 of 11

behalf of the OCSO in the course of carrying out the OCSO’s lobbying function.

The photos were delivered to the Committee and were seen only by legislators and

staff members. Fewless merely referred to the photos in the course of his

testimony before the Committee. Thus, the distribution of the photos related

directly to Fewless’ lobbying efforts. The record contains nothing to unsettle the

legal conclusion that, when Fewless distributed the photos, he was “acting on

behalf of a Federal, State, or local agency in carrying out its functions.” 18 U.S.C.

§ 2721(b)(1). Therefore, the district court correctly determined Appellees are

entitled to summary judgement. 3

IV

As alternate grounds for affirmance, we hold that Appellees are entitled to

qualified immunity. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007) (“We may affirm the district court’s judgment on any ground that

appears in the record, whether or not that ground was relied upon or even

considered by the court below.”).

3 In their brief, Appellants also suggest that the District Court erred in failing to apply a “balancing of interests” test to the disclosures. Notably, Appellants cite no cases which apply a balancing test to the DPPA. Nevertheless, Congress has already struck that balance in enacting the DPPA’s prohibitions and exceptions. Potentially subjecting government functions that Congress has already excepted from the DPPA’s purview—through application of a balancing test or otherwise—is outside the role of the judiciary. See, e.g., United States v. Fifty-Two Firearms, 362 F. Supp. 2d 1308, 1315 (M.D. Fla. 2005) (stating, “it is not the role of the judiciary to change the plain meaning of a statute, or to re-balance public policy already weighed by Congress”).

8 Case: 17-11225 Date Filed: 04/02/2018 Page: 9 of 11

To ascertain whether an official is entitled to qualified immunity, we must

“evaluate whether [the] allegations, if true, establish a violation of a constitutional

or statutory right,” and if so, whether that right was “clearly established” such that

it “provided fair warning to [the officers[ that they were violating the law.” Collier

v. Dickinson, 477 F.3d 1306, 1308, 1311 (11th Cir. 2007) (citing Hope v. Pelzer,

536 U.S. 730, 731 (2002)). Courts may exercise their sound discretion in deciding

which step to address first. Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir.

2015).

When considering whether an official “would have known that his actions

were prohibited by the law at the time he engaged in the conduct in question,”

“[t]he standard is one of objective reasonableness.” Collier, 477 F.3d at 1311. We

use two methods to determine whether a reasonable officer would know that his

conduct violates federal law. The first “looks at the relevant case law at the time of

the violation; the right is clearly established if a concrete factual context exists so

as to make it obvious to a reasonable government actor that his actions violate

federal law.” Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011)

(quotation and brackets omitted). The second “looks not at case law, but at the

officer’s conduct, and inquires whether that conduct lies so obviously at the very

core of what the [law] prohibits that the unlawfulness of the conduct was readily

9 Case: 17-11225 Date Filed: 04/02/2018 Page: 10 of 11

apparent to the officer, notwithstanding the lack of fact-specific case law.” Id.

(quotation and brackets omitted).

To establish a violation of the DPPA, a plaintiff must show “that a defendant

(1) knowingly obtained, disclosed or used personal information, (2) from a motor

vehicle record, (3) for a purpose not permitted.” Thomas v. George, Hartz,

Lundeen, Fulmer, Johnstone, King, & Stevens, P.A., 525 F.3d 1107, 1111 (11th

Cir. 2008). “The plain meaning of the third factor is that it is only satisfied if [it is]

shown that obtainment, disclosure, or use was not for a purpose enumerated under

§ 2721(b)”; “the burden [to show this] is properly upon the plaintiff.” Id. at 1111–

12.

There is no case law clearly establishing that Fewless’ use of the photos was

impermissible. Moreover, Appellants were required to show that no reasonable

officer in the officers’ position could have believed that he was accessing or

distributing the photos for a permissible use under the DPPA. Appellants failed to

make that showing. Appellees are therefore entitled to qualified immunity.

The judgment of the District Court is AFFIRMED.

10 Case: 17-11225 Date Filed: 04/02/2018 Page: 11 of 11

BLACK, Circuit Judge, specially concurring:

I agree summary judgment was properly entered in favor of Appellees. The

law was not clearly established such that a reasonable officer in Appellees’

position would have known presenting Appellants’ driver’s license photos to the

Committee in the course of lobbying against the Bill was not a disclosure permitted

under the exception for “use by . . . any private person or entity acting on behalf of

a Federal, State, or local agency in carrying out its functions.” 18 U.S.C. §

2721(b)(1).4

4 My special concurrence should not be construed as a rejection of the majority’s conclusion that the Government Function Exception applies. 11