Robert McKay v. William Federspiel
823 F.3d 862
6th Cir.2016Background
- Saginaw County chief judges issued a joint administrative "Electronic Device Policy" banning unauthorized possession/use of recording, camera, and electronic communication devices in defined "court related facilities" within the Saginaw County Governmental Center unless a judge grants permission; violations could lead to sanctions including contempt, fines, confiscation, or removal.
- The Saginaw County Sheriff’s Department circulated an internal memo implementing the ban, listing exemptions (courthouse employees, attorneys, law enforcement, media with authorization, and those granted judicial permission) and instructing deputies on handling devices.
- Robert McKay, a nonresident who says he intends to record judges and law enforcement in the Governmental Center (inside courtrooms and just outside), sued seeking declaratory and injunctive relief, claiming violations of the First, Fourteenth, and Fifth Amendments.
- McKay never sought or was denied judicial permission to record, nor did he attempt entry with a recording device; he alleged a subjective chill and fear of contempt/confiscation/incarceration.
- The district court granted summary judgment for defendants, holding McKay lacked Article III standing for pre-enforcement challenges; the Sixth Circuit affirmed, focusing on the absence of a credible threat of enforcement and that the ban plainly covered McKay’s proposed conduct for vagueness purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing for First Amendment pre-enforcement challenge | McKay intends to record public officials in the Governmental Center and thus faces a credible threat of enforcement under the administrative order | Order exists, signs posted, and officials have not disavowed enforcement; deputies say they follow judges' directions and lack independent authority to enforce | No standing: McKay failed to show the required credible threat of prosecution at summary judgment; subjective chill and general signage insufficient |
| Standing for Fourteenth Amendment equal protection claim | Same intended conduct triggers pre-enforcement injury for equal protection challenge | Defendants argue no imminent enforcement and exemptions exist; no history of enforcement | No standing: same reasoning as First Amendment claim — no credible threat shown |
| Fifth Amendment vagueness challenge | Phrase "related common areas" is vague as applied to McKay’s intended recordings just outside courtrooms | The order plainly covers courtrooms and related common areas including spaces just outside public courtrooms | No standing to pursue vagueness claim because the order unambiguously covers McKay’s proposed conduct |
| Consideration of late-filed affidavit | McKay’s affidavit describes intended device and manner; should it cure evidentiary shortfall | Defendants note affidavit was filed after the first summary-judgment ruling and cannot create standing retroactively | Court considered affidavit only for the second round; even with it, McKay still failed to show credible threat for constitutional claims |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) (pre-enforcement standing requires credible threat of enforcement and intent to engage in proscribed conduct)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing principles and burden of proof at summary judgment)
- Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) (pre-enforcement standing standard applied to First and Fourteenth Amendment challenges)
- Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) (future injury must be certainly impending or present substantial risk)
- Berry v. Schmitt, 688 F.3d 290 (6th Cir. 2012) (subjective chill alone insufficient; need additional indicia of enforcement)
- Kiser v. Reitz, 765 F.3d 601 (6th Cir. 2014) (warning letters and refusal to disavow enforcement can establish credible threat)
- Platt v. Bd. of Comm’rs on Grievances & Discipline of the Ohio Supreme Court, 769 F.3d 447 (6th Cir. 2014) (attributes of a statute making enforcement likely can support pre-enforcement standing)
- United States v. Kernell, 667 F.3d 746 (6th Cir. 2012) (vagueness challenges not entertained where plaintiff’s conduct clearly falls within statute)
- Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) (recognizing a First Amendment right to record public officials in public places; discussed but not controlling here)