Fla. Sheriff May Be Liable for Arrest Over Taping

     PANAMA CITY, Fla. (CN) – A Florida sheriff may be liable for his deputies’ allegedly unlawful arrest of a man for filming an officer during a traffic stop, a federal judge ruled.
     Bay County sheriff’s deputy Chad Vidrine stopped Derrick Bacon for a traffic violation in September 2012. Bacon claimed that, after he admitted in traffic court that he had recorded his encounter with officers, Vidrine and another deputy stopped and interrogated him about the recording.
     Bacon said the deputies arrested him without probable cause, seized his cell phone and searched it without a warrant, and then tried to have him prosecuted for wiretapping, a felony under Florida law.
     He sued the deputies and their supervisor, Sheriff Frank McKeithen, in federal court, alleging constitutional violations, malicious prosecution, infliction of emotional distress and slander.
     The State Attorney’s Office declined to prosecute Bacon, finding that the deputies lacked probable cause to arrest him, according to Bacon’s complaint.
     U.S. District Judge Richard Smoak dismissed Bacon’s state-law and Sixth Amendment claims in August, but said he could pursue First and Fourth Amendment claims against the deputies.
     Ruling on Sheriff McKeithen’s motion to dismiss last week, Smoak found that Bacon had sufficiently alleged that the officers’ violation of his constitutional rights was based on a policy McKeithen had endorsed.
     An email the sheriff’s office sent to Bacon’s attorney stated that “[u]ntil [legal issues are clarified], the Sheriff’s office will enforce state statutes to the letter of the law,” presumably referring to the law against wiretapping, according to the Oct. 14 ruling.
     Since the law does not ban recording officers during ordinary traffic stops, continuing to enforce it in that sense could amount to deliberate indifference to constitutional rights, Smoak noted.
     The email also supports Bacon’s contention that the sheriff ratified the officers’ decision to arrest him for making the recording, the 11-page order said.
     However, Bacon’s failure-to-train claims fail because he could not show the sheriff knew that alleged deficiencies in his training programs were causing officers to violate citizens’ rights, the ruling states. McKeithen, who has not invoked qualified immunity, may be personally responsible for the allegedly unconstitutional policy as the highest decision maker in the office that sent the ratifying email, Smoak concluded.
     Attorneys for the parties did not respond to requests for comment.

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