The officers pulled together booking or driver’s license
photos of “one percenters” — members of motorcycle clubs — who might be able to
openly carry guns and provided the photos to the Senate Judiciary Committee.
In the end, lawmakers did not approve a broad open-carry
proposal for people with concealed-weapons licenses. But the use of the photos
led to a lawsuit that resulted this week in a federal
appeals court rejecting arguments by three members of the Outlaws Motorcycle
Club that the officers had violated a privacy law in using
the photos.
The ruling by a three-judge panel of the 11th U.S. Circuit
Court of Appeals sided with Michael Fewless, who in 2011 was captain of the
governmental affairs section of the Orange County Sheriff’s Office and lobbied
the Legislature, and John McMahon, an intelligence agent who selected and
emailed the photos to Fewless.
The civil case focused heavily on whether the officers
violated a federal law known as the Driver’s Privacy Protection Act and whether an exception for government agencies included being able
to use the information for lobbying purposes. The appeals court Monday upheld a
lower-court ruling that said the exception covered lobbying and concluded that
Fewless had been representing the sheriff’s office when he provided the photos
to senators and staff members and when he referred to them during a committee
meeting.
“(The) record reflects that Fewless used the photos while
acting on behalf of the OCSO (Orange County Sheriff’s Office) in the course of
carrying out the OCSO’s lobbying function,” said the 10-page ruling, written by
Judge Harvey Schlesinger and joined by judges Charles Wilson and Susan Black.
“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.”
A brief filed last year on behalf of three bikers who were
plaintiffs in the case, Leslie Baas, Tracy Osteen and Doyle Napier, said the
way the photos were used was not legitimate.
“To start with, it is undisputed the disclosure of the
plaintiffs’ driver’s license photographs had nothing to do with any criminal
behavior on the part of the plaintiffs which might be a legitimate subject of
legislative or public interest, let alone law enforcement inquiry,” the brief
said. “Indeed, the disclosure had nothing whatsoever to do with the plaintiffs
at all but rather had the admitted purpose of propagating a
‘counter-stereotype’ to rebut a stereotype utilized in lobbying efforts by a
pro-gun lobbyist with no affiliation to the plaintiffs that an open carry bill
would benefit ‘bankers and executives’ who might be charged with a crime if the
concealed weapons they were carrying were accidentally exposed.
To put it
succinctly, the defendants (Fewless and McMahon), with the intention of
creating ‘poster children’ for denial of a bill the defendants disliked, took
it upon themselves to expose the ‘highly protected’ information of private
persons who were believed to be law abiding … based upon a non-criminal private
association (i.e. motorcycle club membership) and, most outrageously, the
stupefyingly superficial criterion of an ‘intimidating’ appearance in the
opinion of the officers.”
But in addition to ruling that the exception to the federal
privacy law covered lobbying, the appeals court said the officers were entitled
to what is known as “qualified immunity.”
“There is no case law clearly establishing that Fewless’ use
of the photos was impermissible,” wrote Schlesinger, a federal district judge
who was designated to serve on the appellate panel. “Moreover, appellants (the
plaintiffs) 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 (the federal law). Appellants failed to
make that showing. Appellees (the officers) are therefore entitled to qualified
immunity.”
SOURCE: Florida Politics
Source: Biker Trash Network