Rundle Wrongly Threatened Whistle-Blower for Recording Homestead Police, Court Rules
City of Homestead
After a Homestead cop tried to run him off the road, Eric McDonough started keeping tabs on the local police. The Homestead resident, who has a doctorate in organic thermochemistry, started filming cops, criticizing the department at public meetings, and demanding the city institute a body-camera program. As a thank-you, McDonough was infamously dragged out of a public commission meeting in handcuffs three times last year.
But according to a Miami federal appeals court, that's not all Homestead Police and Miami-Dade County officials have done to harass Homestead's most prominent police whistle-blower. According to an appellate judge's order issued last week, Homestead Police tried to team up with State Attorney Katherine Fernandez Rundle's office to threaten McDonough into not recording the police anymore.
Now, after a long lawsuit, the 11th Circuit Court of Appeal has ruled that Rundle's office illegally tried to prosecute McDonough for simply recording an encounter with the police chief.
The case reflects poorly on both Al Rolle, the Homestead chief, who was accused in the past of destroying records in a separate case (leading the head of the Dade County Police Benevolent Association to call for Rolle's arrest in 2014), and against Rundle, the state attorney, who critics say is too close to police.
The judge's order, which was issued last Wednesday, appears to show Rundle working to intimidate a police whistleblower on behalf of an annoyed police chief.
The case started in 2012, when McDonough tried to complain to Homestead Police Officer Alejandro Murguido for driving recklessly. In response, McDonough says the cop simply arrested him for no reason. McDonough filed a police complaint — but in April 2013, Murguido arrested McDonough again on charges that ended up getting dismissed. McDonough then filed a second harassment complaint against the cop in January 2014.
In response to the ongoing fight, Homestead Chief Al Rolle invited McDonough to sit down with him and discuss the case. (Rolle is the father of NFL player Antrel Rolle and uncle of players Brian, Samari, and Myron Rolle.) On February 7, 2014, McDonough, a friend who witnessed some of the altercations, an HPD detective, and Rolle sat down together. And McDonough whipped out his phone to start recording.
"At the start of the meeting, McDonough placed his cell phone in plain view on the desk between him and Chief Rolle and proceeded to record their conversation," the judge's ruling reads. "Chief Rolle saw McDonough’s cell phone but contends that he was unaware that McDonough was recording the meeting."
During that meeting McDonough handed the chief a stack of documents, references, testimonies, and incident reports that allegedly showed that Murguido, the cop, had a history of bad behavior. McDonough also filed another complaint against the officer, and a records request to ensure that HPD still had the documents that he gave the chief.
Surprisingly, the request came back with a few documents missing. McDonough then filed another, more specific request, and the chief denied that he'd ever received the files.
McDonough then went back to his recording: The audio clearly showed he handed the files to the chief. So McDonough posted the clip on YouTube. In the YouTube clip, McDonough accused Rolle of illegally destroying public records related to the case:
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The video bothered someone enough to file a complaint with Rundle's office. On December 9, 2014, Rundle's office sent McDonough a letter threatening to arrest him if he ever recorded anyone "illegally" ever again. Florida law dictates that both parties must consent to be recorded, but carves out exemptions for "public meetings" and other cases where people do not have an "expectation of privacy."
The threat from Rundle's office read:
A complaint has been filed with our office stating that on February 7, 2014, you recorded conversations you had with Chief Alexander Rolle and Internal Affairs Detective Antonio Acquino at the Chief’s offices located at #4 South Krome Avenue in Homestead, Florida. Florida Statute § 934.03, Interception and Disclosure of Wire, Oral, or Electronic Communications prohibits any party from intentionally intercepting any wire, oral, or electronic communication without the consent of the other party.
Recording a conversation without the permission of the other party or parties is a violation of the statute and is a 3rd degree felony. We are bringing this to your attention to prevent any further violation of Florida law, as a future violation would expose you to criminal prosecution. Enclosed is a copy of the pertinent law.
In response, McDonough sued Rundle, claiming that the state's two-party recording statute didn't apply in this case, since the cops also recorded the interview, and the meeting technically occurred in a public forum. Initially, a lower court judge sided with Rundle, and said McDonough could be arrested if he tried to record the cops again in a similar fashion.
But McDonough appealed, and last week won his case. The appeals court ruled that, since multiple people attended the meeting and the cops themselves also recorded the incident, McDonough was within his rights to record the conversation. (One judge dissented.)
"The topic of their meeting was one of acute public interest: citizens discussing allegations of possible police misconduct with the chief of police," the judges ruled. "The fact that the content of the meeting would likely be subject to public record disclosure is underscored by the fact that Aquino [a detective present] assured McDonough that “we have all of this recorded, what you stated."
The incident — and the judicial slap-down — adds more fuel to the claims of critics who have attacked Rundle for her treatment of local police departments. Since taking over for Janet Reno in 1993, Rundle has never prosecuted a police officer for killing someone on the job, despite scores of questionable killings since the 1990s. In fact, a June New Times investigation showed that her office instead lets police-shooting investigations drag open for years, imperiling a family's chances of winning a civil-rights or wrongful-death lawsuit against the state. Rundle was also caught lying about her police-misconduct record last May to make herself look better.
In March, Rundle declined to prosecute four prison guards who oversaw the death of Darren Rainey, a severely schizophrenic black man who witnesses claim was scalded to death in a jerry-rigged prison shower as punishment for soiling himself. In response, Rundle's hometown political party leaders, the Miami-Dade County Democratic Executive Committee, has asked her to resign, but she refuses to honor the request. Instead, she's floated the idea of running for governor.
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