Dunn v. City of Fort Valley

464 F.Supp.3d 1347

Kennon DUNN, Plaintiff,

v.CITY OF FORT VALLEY ; Lt. Lonnie Postell; Lt. Willie Marshall, Jr.; Officer Donovan Scott-Sinclair; Cpt. Jeffery Lundy; Chief Lawrence Spurgeon; Karin Vinson; and Mayor Barbara Williams,¹ Defendants.

CIVIL ACTION NO. 5:19-cv-00287-TES

United States District Court, M.D. Georgia, Macon Division.

Signed May 19, 2020

Gerald R. Weber, Atlanta, GA, Jennifer Beth Hickey, Lilburn, GA, for Plaintiff.

Sun S. Choy, Sean Christopher Ryan, Atlanta, GA, for Defendants.

ORDER DENYING DEFENDANTS' MOTION TO DISMISS

TILMAN E. SELF, III, JUDGE

The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.²

Pretty simple rule.

Yet, in July of 2018, deputies with the Fort Valley Police Department arrested Kennon Dunn, a self-described citizen-journalist, because he took pictures and recorded video in public areas of Fort Valley City Hall. And if that wasn't enough, the Fort Valley Police Department then issued Mr. Dunn two criminal trespass notifications, indefinitely barring him from entering Fort Valley City Hall or the Fort Valley Police Department without a police escort—even for the purpose of attending City Council meetings or conducting business. And, finally, the Fort Valley Police Department has refused to provide Dunn with any of the documents dealing with his case, notwithstanding that Dunn requested the records via the Open Records Act.

The Defendants contend that they had the right to arrest Mr. Dunn all along and that they were perfectly right to issue the trespass bans, basically arguing that he brought this trouble on himself. In fact, the Defendants believe that Mr. Dunn's "repeated refusal to cooperate with authorities belies³ an intent to goad City officials into his arrest." [Doc. 7-1 at p. 2]. In the Defendants' bluntest of words: "Plaintiff's [C]omplaint smacks of a setup." [Id. at p. 1].

The individual Defendants attempt to escape liability by wrapping themselves in the virtually impenetrable cloak of qualified immunity. But, as the Court explains below, qualified immunity will not save them in this case. Not on the facts in this Complaint. The Court has read and considered the parties' arguments, along with the amicus brief submitted in the case, and, for the reasons more fully discussed below, the Court DENIES Defendants' Motion to Dismiss [Doc. 7], and Mr. Dunn may proceed on all counts.

I. FACTUAL SUMMARY ⁴

Mr. Dunn categorizes himself as an independent journalist who composes news broadcast videos that are then distributed online to his more than 8,000 followers via his YouTube channel. [Doc. 1 at ¶¶ 14–15]. Mr. Dunn describes his broadcasts as "focusing on issues of government accountability" and "educating the public on civic engagement and constitutional rights." [Id. ]. On July 9, 2018, Mr. Dunn intended to produce a segment for his broadcast regarding missing persons in the Fort Valley, Georgia, area. [Id. at ¶ 16].

Mr. Dunn began his report by taking footage of the gazebo and other monuments on downtown Main Street. He then proceeded to the Fort Valley Police Department. Mr. Dunn took photos and video inside the historic Police Department building and around the grounds. The purpose of this footage was primarily to serve as "B-roll" for his report, but also to evaluate the building's accessibility for [people with disabilities], as Mr. Dunn is, himself, disabled. Several officers noticed Mr. Dunn filming there but did not speak to him. Mr. Dunn then proceeded next door to Fort Valley City Hall. He again took photographs and video of the inside of the building, including the Missing Persons posters on the public service announcement board. Mr. Dunn, impressed to see a city official hard at work, shot additional footage from a distance of the mayor inside of her office.... At all times, Mr. Dunn was only present in the publicly accessible areas of City Hall.

[Id. at pp. at ¶¶ 16–19, 21]. His complaint clearly states that he neither carried a bag nor wore loose clothing while he took photos with his digital camera and recorded video using his handheld video camera and a bodycam. [Id. at ¶¶ 19, 22–23].

While Mr. Dunn was filming in City Hall, he drew the attention of a City Hall employee, Karin Vinson, who asked Mr. Dunn why he was recording. [Id. at ¶ 20]. "Mr. Dunn politely declined to inform her of his personal and professional reasons" for recording, but Ms. Vinson did not ask him to leave. [Id. at ¶¶ 20, 24]. He continued to remain in the public areas of City Hall and record footage. [Id. at ¶ 25]. "Vinson and Mayor Williams [then] called" the Fort Valley Police Department to report Mr. Dunn as a "suspicious person." [Id. at ¶ 24].

The Complaint then alleges that Lieutenant Lonnie Postell responded to the call and "aggressively questioned Mr. Dunn about his ‘agenda’ and immediately ordered him to step outside." [Id. at ¶ 25]. Mr. Dunn attempted to confirm his right to remain in the publicly accessible portion of City Hall and film. [Id. at ¶ 26]. Lt. Postell "acknowledged that the City Hall lobby was a publicly accessible area, but stated that the public was not allowed to take photographs there." [Id. ]. According to Mr. Dunn, however, "[t]here was no signage or other indication of a policy prohibiting the public from taking photographs, and in fact there is no policy regarding photographing in public areas of government buildings in Fort Valley, Georgia." [Id. at ¶ 27]. Lt. Postell pulled Mr. Dunn's left arm behind his back and began to push Mr. Dunn toward the door, so Mr. Dunn requested that Lt. Postell instead allow him to walk outside on his own, using his cane.⁵ [Id. at ¶ 28]. Lt. Postell permitted Mr. Dunn to exit the building using his cane. [Id. ].

Once outside City Hall, Officer Donovan Scott-Sinclair and Sergeant Derrick Dunson joined Mr. Dunn and Lt. Postell. [ Id. at ¶ 29]. Lt. Postell asked Mr. Dunn to show identification, and Mr. Dunn replied that it was not on his person because he had left it in his car. [Id. at ¶ 30]. Lt. Postell repeatedly asked for Mr. Dunn's name, which Mr. Dunn offered to provide if Lt. Postell would disclose the crime for which Mr. Dunn was being detained. [Id. at ¶ 32]. Lt. Postell informed Mr. Dunn that he was not allowed to take pictures in City Hall without permission, and that it was a violation of Georgia law to fail to carry identification at all times. [Id. at ¶¶ 31, 33].

Lt. Postell then consulted with Ms. Vinson, who informed him "that Mr. Dunn was not allowed to take pictures of the mayor without permission." [Id. at ¶ 35]. Lt. Postell then handcuffed Mr. Dunn; searched him; and confiscated his video camera without his consent. [Id. at ¶ 37]. Mr. Dunn was then made to walk to the Police Department, while handcuffed, which required him to use his cane at an abnormal angle. [Id. at ¶ 38]. Mr. Dunn was not allowed to take a break during the walk, despite telling the officers he was in pain. [Id. ]. Officer Scott-Sinclair told Mr. Dunn "that he did not care that he was in pain" and "that it was clear that Mr. Dunn had ‘bad intentions,’ without explaining the basis for that claim." [Id. at ¶¶ 38–39].

At the Police Department, Mr. Dunn asked to speak with a supervisor. [Id. at ¶ 40]. He was taken to a booking room where Lt. Postell continued to "interrogate" him, despite Mr. Dunn's request for an attorney, and threatened to detain Mr. Dunn indefinitely if he did not provide his name. [Id. at ¶¶ 40–41]. "Lt. Postell again informed Mr. Dunn that his supposed ‘crime’ of taking photographs in City Hall was the reason he demanded identification from Mr. Dunn." [Id. at ¶ 42]. Officer Scott-Sinclair turned off Mr. Dunn's bodycam without his consent. [Id. at ¶ 43]. Captain Jeffery Lundy and Lieutenant Willie Marshall, Jr., also entered the booking room. [Id. at ¶ 44]. "Mr. Dunn explained that he was engaging in activity protected by the First Amendment and repeatedly asked the supervisors to contact their local District Attorney to confirm that his actions were lawful." [Id. ]. They informed him that he could dispute the charges later, but they were charging him with "Obstruction." [Id. at ¶ 45]. Mr. Dunn broadcasted some of these interactions live on social media, and, upon realizing this, Lt. Marshall placed Mr. Dunn in a holding cell and contacted Chief Lawrence Spurgeon, who conferred with the local District Attorney. [Id. at ¶¶ 48–50]. Mr. Dunn then received a citation for a violation of Fort Valley City Ordinance 62-11, Disorderly Conduct, despite no mention of disorderly conduct being made before the call to the District Attorney. [Id. at ¶¶ 50–51]. The Fort Valley Police Department released Mr. Dunn from jail when he presented his identification in lieu of bail. [Id. at ¶ 74].

Mr. Dunn also received two criminal trespass notifications, indefinitely preventing him from entering City Hall or the Fort Valley Police Department, which the Complaint alleges meant that Mr. Dunn must call for a police escort if he wished to conduct business in these buildings and that he is not allowed inside for any other reason, including filming or attending public meetings. [Id. at ¶¶ 56–57]. Lt. Marshall told Mr. Dunn that he would be allowed into the municipal court for the case regarding his citation, but only in the company of his attorney. [Id. at ¶ 58]. Lt. Marshall stated that the bans were in effect "until the City or City Council decides to lift them."⁶ [Id. at ¶ 59]. Mr. Dunn was not given any information on how to challenge the bans, and they remain in place. [Id. at ¶ 61].

Because the City of Fort Valley issued the trespass notifications, Mr. Dunn asserts that the bans "represent the official policy of the City of Fort Valley," which "allows for the banning of persons from public areas without adequate standards for enforcement and without time limits or an appeal process." [Id. at ¶¶ 63–65]. Mr. Dunn claims that ...