LESLIE BAAS, TRACY OSTEEN and DOYLE NAPIER, Plaintiffs-Appellants,
MICHAEL A. FEWLESS and JOHN MCMAHON, Defendants-Appellees.
from the United States District Court for the Middle District
of Florida D.C. Docket No. 6:15-cv-565-RBD-KRS
WILSON and BLACK, Circuit Judges, and SCHLESINGER, [*] District Judge.
SCHLESINGER, District Judge
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
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.
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"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.
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.
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
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.
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.
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 v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
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 ...