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Baas v. Fewless

United States Court of Appeals, Eleventh Circuit

April 2, 2018

MICHAEL A. FEWLESS and JOHN MCMAHON, Defendants-Appellees.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:15-cv-565-RBD-KRS

          Before WILSON and BLACK, Circuit Judges, and SCHLESINGER, [*] District Judge.

          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.


         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 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 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.


         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., 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 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 ...

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