Introduction

This commentary analyzes the unpublished but potentially influential decision of the United States Court of Appeals for the Eleventh Circuit in Steven R. DeWitt v. Ceressa Haney. The panel (Newsom, Brasher, and Wilson, JJ.) affirmed the district court’s Rule 12(b)(6) dismissal of DeWitt’s 42 U.S.C. § 1983 action. DeWitt, a self-described “First Amendment auditor,” alleged that a probation supervisor and two police officers violated his First Amendment rights when they barred him from filming inside a Florida state probation office.

The central question was whether a clearly established constitutional right existed, as of the events in 2021, to record public officials inside the lobby of a probation office. The court concluded that no such right was “clearly established,” thereby granting the defendants qualified immunity. The decision refines the scope of the Eleventh Circuit’s earlier pronouncement in Smith v. City of Cumming and fortifies the limits articulated in Crocker v. Beatty.

The parties:

• Plaintiff-Appellant: Steven R. DeWitt – private citizen and “First Amendment auditor.”
• Defendants-Appellees: Ceressa Haney (probation supervisor), Trent Sexton (police officer), Melanie Pretti (police officer) – sued in their individual capacities.

Summary of the Judgment

Applying a de novo standard of review, the Eleventh Circuit held:

• The defendants were acting within their discretionary authority.
• DeWitt failed to show the violation of a clearly established First Amendment right to record inside a probation office.
• Because the right was not clearly established, all defendants were entitled to qualified immunity; dismissal under Rule 12(b)(6) was therefore appropriate.
• DeWitt’s claims for declaratory and injunctive relief were correctly dismissed, both for mootness and because such relief is unavailable against individuals sued in their personal capacities under § 1983.

Analysis

1. Precedents Cited

• Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000)
  Recognized a First Amendment right, “subject to reasonable time, manner, and place restrictions,” to photograph or videotape police conduct on public property. However, the opinion was brief and factually sparse.
• Crocker v. Beatty, 995 F.3d 1232 (11th Cir. 2021)
  Limited Smith by holding that its broad language did not “obviously” apply to filming on the shoulder of an interstate accident scene. Emphasized the need for fact-specific precedent to place officers on notice.
• Qualified-Immunity Trio: Ashcroft v. Iqbal, 556 U.S. 662 (2009); Mullenix v. Luna, 577 U.S. 7 (2015); Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002)
  Provide the modern framework for Rule 12(b)(6) plausibility and qualified-immunity analysis.

2. Legal Reasoning

The court employed the two-prong qualified-immunity test:

a. Constitutional Violation

Assuming arguendo that preventing filming inside a probation office could violate the First Amendment, the panel skipped directly to the clearly-established prong, a common practice when that prong is dispositive.

b. Clearly Established Right

The court reiterated that a right is clearly established only if existing precedent places the question “beyond debate.” DeWitt relied on Smith for a generalized “right to record.” The panel found that:

• Smith lacked factual detail—neither location, context, nor scope of restriction was explained.
• Crocker already treated Smith as insufficiently specific to give fair warning in a highway context; the same deficiency applied to a probation-office lobby.
• No Supreme Court or Eleventh Circuit case addressed filming inside non-public forums like probation offices.

Absent precedent with “obvious clarity,” the officials could not have known their conduct violated the Constitution. Qualified immunity therefore attached.

3. Impact

The ruling, though unpublished, contributes to a growing body of circuit authority that:

• Distinguishes between public forums (streets, parks) and non-public or limited-public forums (government workplaces, probation offices).
• Signals to “First Amendment auditors” that filming inside certain government facilities is not yet a clearly established right in the Eleventh Circuit.
• Encourages state and local agencies to craft explicit time-, place-, and manner regulations addressing recording devices in sensitive areas.
• Leaves room for future litigation: if another plaintiff presents more specific precedent—or if the Supreme Court or en banc Eleventh Circuit clarifies—the doctrine could evolve.

Complex Concepts Simplified

• Qualified Immunity: A legal shield protecting government officials from personal liability unless they violate “clearly established” rights that every reasonable officer would recognize.
• Clearly Established Right: A right so definite that any reasonable public official would understand his actions violate the Constitution, usually proven through binding case law with materially similar facts.
• First Amendment Audit: A social-media practice where individuals film government officials to test compliance with First Amendment protections, often in contested spaces such as lobbies, post offices, or city halls.
• Public vs. Non-Public Forum: Locations traditionally open to expressive activity (public forums) receive strong First Amendment protection; government offices performing administrative functions are typically non-public forums, allowing greater regulation.

Conclusion

DeWitt v. Haney underscores the Eleventh Circuit’s caution in expanding the “right to record” beyond traditional public spaces. By deeming Smith too generalized and relying on Crocker to cabin its reach, the court confirms that officials retain qualified immunity unless binding precedent squarely governs the specific setting. The decision may chill expansive First Amendment audits in sensitive government facilities, at least until higher courts or legislative bodies supply clearer guidance.

Key takeaways:

• The right to record public officials is context-dependent; not all government property is treated alike.
• Smith v. City of Cumming remains good law but provides only a broad principle, insufficient by itself to overcome qualified immunity in novel settings.
• Plaintiffs challenging recording restrictions must now locate or create more fact-specific precedent to defeat qualified immunity.
• Government entities should proactively adopt clear, content-neutral recording policies to balance transparency with operational security.