No Clearly Established Right to Record Police or Sing in a Post Office Parking Lot (a Nonpublic Forum): Eleventh Circuit Affirms Qualified Immunity and Rejects Monell/Due Process Claims

Note: This is an unpublished, per curiam decision on the Eleventh Circuit’s non-argument calendar. While persuasive, it is not binding precedent within the Circuit.

Introduction

This appeal arises from a pro se civil rights action under 42 U.S.C. § 1983 by Eric Watkins against a Fort Lauderdale police officer (Officer Eric Good) and the City of Fort Lauderdale. The case centers on Watkins’s claim that his First Amendment rights were violated when Officer Good ordered him to leave a United States Post Office parking lot as Watkins sang an anti-gay song and filmed the officer. Watkins also asserted Fourteenth Amendment due process claims against the officer (in his official capacity) and the City, arguing, among other things, that local ordinances used to issue a trespass warning were unconstitutional for failing to provide a way to contest the warning.

The district court dismissed all claims—granting Officer Good’s motion to dismiss on qualified immunity and failure-to-state-a-claim grounds, and dismissing the City claim under the in forma pauperis screening statute, 28 U.S.C. § 1915(e). The Eleventh Circuit affirmed in full.

This opinion is significant for First Amendment and civil rights practitioners because it:

Holds there is no clearly established First Amendment right to engage in expressive activity—such as singing or recording the police—in a post office parking lot, treated as a nonpublic forum, thereby entitling an officer to qualified immunity;
Reinforces limits on municipal liability (Monell) and official-capacity pleading when a plaintiff does not identify a final policymaker or a municipal policy/custom;
Clarifies that due process challenges premised on inapplicable ordinances or absent deprivations fail, and underscores that local code procedures providing for trial preclude an “inadequate process” claim; and
Reminds litigants that embedded requests to amend within briefing are procedurally improper and that courts need not sua sponte offer further amendments where they would be futile.

Summary of the Opinion

The Eleventh Circuit affirmed the district court’s dismissal across four issues:

Qualified immunity (First Amendment): Even assuming Watkins alleged a viable First Amendment claim, the officer did not violate a clearly established right by ordering Watkins to leave the post office parking lot while he sang and recorded. Relying on forum analysis, the panel treated the post office property as a nonpublic forum (drawing support from Supreme Court precedent), and held that the broad, general rule in Smith v. City of Cumming recognizing a right to record police did not clearly establish a right in a nonpublic forum—especially as narrowed by Crocker v. Beatty.
Official-capacity claim (Fourteenth Amendment): Dismissed for failure to allege that Officer Good had final policymaking authority or that a municipal policy or custom caused the purported deprivation.
Municipal due process claim under § 1915(e): Dismissed because the specific Fort Lauderdale ordinances cited were inapplicable to the pleaded facts, and, in any event, the City’s code affords a trial before punishment—undercutting any claim of inadequate process.
Leave to amend: The court found no abuse of discretion. Watkins did not properly move to amend (request was embedded in a response brief), he had already been afforded multiple opportunities to amend, and the proffered amendments would have been futile.

Factual Background

Watkins alleged that he was sitting in his car in a U.S. Post Office parking lot singing an anti-gay song. Officer Good, also in the lot, later exited his police vehicle with a dog, walked around, and allegedly told Watkins to stop recording. Watkins continued to sing and record. The officer then told Watkins to leave the parking lot, asserting it was not a public parking lot, and indicated that Watkins was being trespassed. Watkins left and never returned. Watkins also alleged an earlier encounter in which the officer threatened to “permanently trespass” him if he returned to sing and record.

Watkins brought three § 1983 counts: (I) First Amendment retaliation against Officer Good (individual capacity); (II) a Fourteenth Amendment due process claim against Officer Good (official capacity), also challenging two City ordinances (Fort Lauderdale Code §§ 16-26 and 16-71(c)(2)) as unconstitutional; and (III) a Fourteenth Amendment due process claim against the City.

Detailed Analysis

Precedents and Authorities Cited

Qualified Immunity Framework

Kesinger v. Herrington and Maddox v. Stephens: Establish that once an officer shows he acted within discretionary authority, the burden shifts to the plaintiff to show a violation of a clearly established right.
Skop v. City of Atlanta: Two-step inquiry—(1) whether a constitutional right was violated; and (2) whether that right was clearly established.
Crocker v. Beatty: Clarifies the limits of Smith v. City of Cumming and emphasizes the need for context-specific clearly established law; recognizes that Smith’s reference to time, place, and manner restrictions calls to mind traditional or designated public forums.
Lewis v. City of West Palm Beach, Long v. Slaton: Identify the three ways law can be clearly established—indistinguishable case law, a broad principle with obvious clarity, or conduct so egregious that it obviously violates the Constitution.
J W by & through Tammy Williams v. Birmingham Board of Education: Unpublished decisions cannot clearly establish the law for qualified immunity purposes.

Forum Doctrine

United States v. Kokinda: The sidewalk from a post office parking lot to the front door is a nonpublic forum; restrictions on speech in a nonpublic forum are reviewed for reasonableness. The panel draws on Kokinda’s reasoning to treat the post office parking lot as a nonpublic forum (at minimum for “clearly established” analysis).

Right to Record Police

Smith v. City of Cumming: Recognizes a First Amendment right to photograph or videotape police, subject to reasonable time, place, and manner restrictions.
Crocker v. Beatty: Narrows Smith’s sweep; because Smith provided few factual details, its “general rule” does not obviously extend to all contexts, particularly outside traditional/designated public forums. In Crocker, qualified immunity was appropriate where a bystander was photographing on the shoulder of an interstate highway at an accident scene.

Pleading Standards and Screening

Swierkiewicz v. Sorema, Bell Atlantic v. Twombly, and EEOC v. STME, LLC: Set the plausibility standard—facts must raise the right to relief above the speculative level.
Leal v. Georgia Dept. of Corrections: De novo review of § 1915(e) dismissals for failure to state a claim.

Monell and Official Capacity

Monell v. Department of Social Services, Cooper v. Dillon, Hill v. Clifton: Municipal liability requires a municipal policy/custom; official-capacity defendants must have final policymaking authority for the municipality to be liable.

Procedural Due Process

Doe v. Florida Bar, Cryder v. Oxendine: Elements—(1) deprivation of a protected liberty or property interest; (2) state action; and (3) constitutionally inadequate process.
Fort Lauderdale Code provisions: § 16-26 (trespass on city-owned property); § 16-71(c)(2) (defining “trespass” within disorderly conduct), and § 1-6(c) (providing for trial upon prosecution/conviction for code violations).

Leave to Amend

Cita Trust Co. AG v. Fifth Third Bank, Doe v. Emory University: A request to amend embedded within a response brief is insufficient; the plaintiff must file a motion to amend.
Silberman v. Miami Dade Transit: Pro se plaintiffs generally receive at least one chance to amend, but not where amendment would be futile.
Forbus v. Sears Roebuck & Co., Aycock v. R.J. Reynolds Tobacco Co., Gramegna v. Johnson: Standards for reviewing leave-to-amend decisions and the “freely given when justice so requires” principle.

Legal Reasoning

1) Qualified Immunity on the First Amendment Claim

The court assumed, without deciding, that Watkins alleged protected speech (singing and recording) and an adverse action (ordering him to leave under threat of trespass). The decision turns on the second qualified-immunity prong: whether the officer’s conduct violated clearly established law.

Two threads drive the analysis:

Forum characterization: Drawing on Kokinda, the panel treats the post office parking lot as a nonpublic forum (at least for clearly established analysis). In a nonpublic forum, speech restrictions need only be reasonable and viewpoint neutral. The court found the officer’s order to leave reasonable because the parking lot exists to facilitate postal access, and Watkins did not allege any intent to use the post office.
Right to record police in context: Smith recognizes a right to record, but Crocker cautions that Smith’s general statement does not clearly extend to all settings, especially nonpublic forums. Because Smith’s “time, place, and manner” language evokes public forums, it does not clearly establish a right to record in a nonpublic forum like a post office parking lot. Absent controlling precedent from the Supreme Court, the Eleventh Circuit, or the state’s highest court that squarely covers this setting, qualified immunity applies.

Watkins’s reliance on an unpublished Eleventh Circuit decision (Watkins v. Bigwood) could not carry his burden because unpublished opinions cannot clearly establish law. Nor was the officer’s conduct so egregious as to obviously violate the Constitution under the third clearly-established pathway.

2) Official-Capacity Due Process Claim (Against Officer Good)

The court affirmed dismissal because Watkins did not allege that Officer Good had final policymaking authority for the City. An official-capacity claim is functionally a suit against the municipality. Without allegations of a municipal policy or custom, or that the defendant is a final policymaker, the claim fails under Monell, Cooper, and Hill.

3) Municipal Due Process Claim (Against the City) and Ordinances

The court affirmed the § 1915(e) dismissal for two reasons:

Ordinance inapplicability: Fort Lauderdale Code § 16-26(a) regulates trespass on city-owned real property; the complaint did not allege that the post office parking lot is City property. Section 16-71(c)(2) defines “trespass” for disorderly conduct; Watkins did not allege any disorderly conduct charge. Consequently, the ordinances he attacked did not govern the incident he pled.
Adequate process on the face of the Code: Even if one or both ordinances applied, the City’s code expressly provides for a trial before any punishment for a code violation (§ 1-6(c)), undermining any claim of constitutionally inadequate process. The court therefore found no plausible deprivation without due process.

4) Leave to Amend

Watkins did not file a motion to amend; he embedded a request in his opposition to the motion to dismiss, which is procedurally inadequate. The district court had already permitted two amendments. The court also agreed that further amendment would be futile: even if Watkins added allegations that the lot was “open to the public” while the post office itself was closed, that would not cure the “clearly established” defect for qualified immunity or supply the elements missing from the Monell and due process claims.

Impact and Significance

First Amendment and the Right to Record Police

Narrowing in nonpublic forums: This opinion reinforces that the generalized right to record police recognized in Smith does not clearly extend to nonpublic forums. When expressive activity occurs on government property not traditionally open to public discourse—such as post office premises—officers directing individuals to leave are likely to be shielded by qualified immunity unless case law squarely prohibits the conduct in that specific context.
Forum doctrine matters: Plaintiffs asserting First Amendment violations on government property must engage the forum analysis. Absent authority classifying the property as a traditional or designated public forum, or clearly establishing an expressive right in that location, the “clearly established” prong will be difficult to satisfy.
Practical takeaway for activists and bystanders: While many circuits recognize a right to record the police, the location is critical. On nonpublic government property (e.g., certain federal facilities, interior lobbies, restricted parking areas), the right is more limited, and the lack of clearly established law will often favor officers at the motion-to-dismiss stage.

Municipal Liability and Pleading Strategy

Monell rigor: Plaintiffs must allege a municipal policy/custom or a decision by a final policymaker that caused the alleged violation. Naming a line officer in his official capacity is insufficient without factual allegations connecting the challenged action to municipal policy.
Due process claims require fit between facts and law: Attacking ordinances that do not apply to the pleaded facts is fatal. In addition, a procedural due process claim requires both a deprivation and inadequate procedures; the mere prospect of a warning, absent prosecution or penalty, usually will not suffice—especially where the code guarantees trial protections before punishment.

Procedural Discipline

Requests to amend: Litigants—pro se or represented—should file a standalone motion to amend rather than embedding a request within a response brief. Courts in the Eleventh Circuit will not treat such embedded requests as proper motions.
Futility limits: Even pro se litigants are not entitled to endless amendments; where the legal defect is the absence of clearly established law or where forum doctrine dictates reasonableness of restrictions, additional factual detail often will not cure the deficiency.

Complex Concepts Simplified

Qualified Immunity: A shield for officials performing discretionary duties unless they violate a right that was clearly established at the time. Plaintiffs must show not just a constitutional violation, but that prior authoritative decisions would have put any reasonable officer on notice that the conduct was unlawful in the specific context.
Clearly Established Law: Comes from the U.S. Supreme Court, the Eleventh Circuit, or the state’s highest court. It can be shown by a case with very similar facts, a broad principle that obviously applies to the facts, or conduct so egregious that no case is needed. Unpublished cases do not count.
Forum Doctrine: Government property is classified as:
- Traditional public forum (e.g., streets, parks): Speech restrictions face the heaviest scrutiny; time/place/manner rules must be narrowly tailored.
- Designated public forum: The government opens property for expressive activity; similar protections apply while open.
- Nonpublic forum: Property not traditionally open to public discourse (e.g., certain federal facilities, interior sidewalks tied to facility access). Restrictions need only be reasonable and viewpoint neutral.
Monell Liability: Municipalities are not vicariously liable for employees’ actions. A plaintiff must identify a municipal policy, custom, or final policymaker decision that caused the constitutional injury.
Official-Capacity Suit: Treated as a suit against the municipality itself. It rises or falls with Monell requirements.
Procedural Due Process: Requires (1) a protected interest, (2) deprivation by the government, and (3) inadequate procedures. If the government provides a hearing or trial before punishment, it is difficult to show inadequate process.
§ 1915(e) Screening: Courts must dismiss in forma pauperis complaints that fail to state a claim at any time, using the same plausibility standard as Rule 12(b)(6).
Leave to Amend: Generally “freely given,” but requires a proper motion, and courts can deny if amendment would be futile. Pro se litigants typically get at least one chance to amend, but not where better pleading cannot salvage the claim.

Conclusion

This unpublished Eleventh Circuit decision underscores the decisive role of property forum classification in First Amendment disputes involving recording and expressive conduct on government premises. By relying on Kokinda and Crocker, the panel holds that the generalized right to record police does not clearly extend to a post office parking lot—treated here as a nonpublic forum—thereby entitling the officer to qualified immunity. The court also reinforces core limits on municipal liability under Monell, rejects due process claims predicated on inapplicable ordinances or where the municipal code provides for trial protections, and insists on procedural regularity in seeking leave to amend.

For practitioners, the opinion offers a roadmap: when expressive activity occurs on government property, begin with forum analysis and the specific, on-point “clearly established” law. For municipalities and officers, it confirms the protective reach of qualified immunity where the law’s application to a particular property type is unsettled. For civil rights plaintiffs, it is a reminder to plead municipal policy or final policymaker involvement and to ensure that due process theories align with the actual regulatory scheme and the presence of a genuine deprivation.

Bottom line: In the Eleventh Circuit, absent controlling authority extending Smith to nonpublic forums like post office parking lots, officers who order individuals to leave while they sing or record are likely to be protected by qualified immunity, and related municipal and due process claims will face steep pleading and doctrinal hurdles.