McKay v. Federspiel

Decision Date20 May 2016
Docket NumberNo. 15–1548.,15–1548.
Citation823 F.3d 862
PartiesRobert McKAY, Plaintiff–Appellant, v. William L. FEDERSPIEL; Randy F. Pfau, Defendants–Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Philip Lee Ellison, Outside Legal Counsel PLC, Hemlock, Michigan, for Appellant. Karen M. Daley, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, Michigan, for Appellees. ON BRIEF: Philip Lee Ellison, Outside Legal Counsel PLC, Hemlock, Michigan, for Appellant. Karen M. Daley, Cummings, McClorey, Davis & Acho, P.L.C., Livonia, Michigan, for Appellees.

Before: STRANCH, DONALD, and LIPEZ, Circuit Judges.**



, Circuit Judge.

This case seeks to present significant issues concerning the ever-advancing march of technology and its role in courts and court facilities. The outcome of this case, however, is governed by the more particular issue of legal standing. Here, the chief judges of Saginaw County, Michigan issued a joint administrative order limiting the use of electronic devices in courtrooms and court-related facilities in the Saginaw County Governmental Center. Robert McKay, a resident of neighboring Tuscola County who states that he wishes to record law enforcement officers' and judges' activities inside the Governmental Center, contends that the administrative order violates his federal constitutional rights. Upon consideration of two sets of cross-motions for summary judgment, the district court concluded that McKay lacks standing to challenge the order prior to its enforcement. For the reasons that follow, we AFFIRM.


The Saginaw County Governmental Center houses the Saginaw County Tenth Circuit Court, Probate Court, and Seventieth District Court, as well as various county legislative and executive offices, officials, and staff. In August 2013, a subcommittee of the Saginaw County Board of Commissioners held a public meeting to discuss a proposed ordinance that would prohibit possession or use of electronic devices within the entire Governmental Center. McKay attended the meeting and spoke against the ordinance. The commissioners postponed making a decision, however, and the proposed ordinance never came up for further discussion or for a vote.

A few months later, on October 30th, the chief judges of the Tenth Circuit Court, Probate Court, and Seventieth District Court of Saginaw County issued a joint administrative order prohibiting unauthorized possession or use of certain electronic devices in court related facilities” in the Governmental Center. Specifically, the order—entitled “Electronic Device Policy”—provides that:

Except with a judge's permission, possession and/or use of the following devices is prohibited in court related facilities:
• audio and/or video recording and/or broadcasting devices
• camera/photographic devices
• electronic communication devices

(R. 35–2, PageID 477.) The order defines [c]ourt related facilities” as “the Saginaw County Circuit Court, District Court, and Probate Court (including the entire Juvenile/Family Court facility) courtrooms, court administrative offices, Friend of the Court offices, probation offices, and related common areas.” (Id. ) And, under the order, [e]lectronic communication devices” include “any device capable of communicating information from one person to another, including cell phones, pagers, two way radios, and laptop/notebook/tablet computers.” (Id. ) The order further states that [a]ll persons and property ... entering court related facilities are subject to search by Sheriff Deputies for the purpose of enforcing this order” and that [f]ailure to comply with this order may result in appropriate sanctions, including (A) being summarily barred or removed from court related facilities, and/or (B) imposition of a fine, including confiscation of any offending device, incarceration, or both for contempt of court.” (Id. at PageID 477, 478.)

The Saginaw County Sheriff's Department—led by Sheriff William Federspiel—handles security at the Governmental Center. Shortly after the Saginaw County judges issued the electronic device order, Lieutenant Randy Pfau circulated an internal memorandum to all Sheriff's Department personnel. The memo explained:

Starting 16 December 2013 there will be no electronic recording device allowed (cell phone, camera, tablets, laptop computers, e[tc].) in the Saginaw County Courthouse by any members of the public. If they are brought in they will be treated as any other restricted item and people will be able to take them back to their cars.
This is a policy that was established by the courts to stop the use of audio and video recordings being taken by the public and released to identify or harass witnesses. This policy is already common in neighboring counties and has been for some time. This policy will exclude the following persons:
1) Courthouse employees
2) Active members of the State Bar of Michigan
3) Law enforcement person[nel] acting in that capacity
4) Probation and Parole officers acting in that capacity
5) Representatives of media agencies authorized pursuant to AO 1989–1
6) Individuals granted ad hoc permission by an authorized judge.
Persons not wishing to comply with this order will be barred from the courthouse and those in violation inside the building may have their electronic device confiscated.
There is a permit that will be available for people coming for weddings and other official times that an electronic device may be needed (see attached permit sample). The permits will be available with the Circuit court or at the Deputies['] discretion....

(R. 35–3, PageID 479–80.)

McKay filed the instant lawsuit in January 2014, arguing that the electronic device order is unconstitutional both on its face and as applied to him, and seeking injunctive and declaratory relief to prevent Federspiel and Pfau from enforcing the order. McKay's amended complaint alleges that he “seeks to exercise a right to record trial activities, the police and sheriff deputies inside and outside the courtroom in the performance of their official duties, the judge in the performance of his or her duties, and other activities of public interest” in the Saginaw County Governmental Center. (R. 75, PageID 1384.) He further contends that the electronic device order violates the First, Fourteenth, and Fifth Amendments to the United States Constitution. McKay does not allege that he has requested or been denied judicial permission to use a prohibited electronic device in the Governmental Center, nor does he allege any attempts to enter the building with such a prohibited device. Instead, McKay maintains that he “does not wish to be subject to contempt, confiscation of any electronic device (with or without private communications contained therein), fined not more than $7,500.00, and/or jail [ed] for 93 days for exercising his constitutional rights.” (Id. at PageID 1383.)

The district court denied McKay's request for a preliminary injunction and later entered summary judgment against McKay with respect to his First Amendment claims after the parties cross-moved for partial summary judgment. After a second round of summary judgment briefing on the remaining counts, the court also entered summary judgment against McKay with respect to his Fourteenth and Fifth Amendment claims. The district court held, among other things, that McKay failed to show any legally cognizable injury and therefore lacked constitutional standing to bring any of his asserted causes of action. McKay timely appealed from both summary judgment orders.


This court reviews de novo a district court's grant of summary judgment and dismissal for lack of standing. See Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 980 (6th Cir.2012)

. Summary judgment is appropriate only 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). A fact is material if it “might affect the outcome of the suit under the governing law[,] and a dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At the summary judgment stage, we consider the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. See

Chapman v. UAW Local 1005, 670 F.3d 677, 680 (6th Cir.2012) (en banc). And where, as here, the parties filed cross-motions for summary judgment, “the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir.1991) (quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987) ).


We address McKay's First Amendment claims and the first order for summary judgment before turning to his Fourteenth and Fifth Amendment claims and the second order for summary judgment.

A. First Amendment Claims

McKay argues that he has a First Amendment right to record trial and other activities in the Saginaw County Governmental Center and that the electronic device order improperly infringes upon that right. Before he can invoke this court's jurisdiction, however, McKay must demonstrate that he has standing to assert his First Amendment claims.

1. Legal Standard

Article III of the United States Constitution limits federal courts' jurisdiction to certain Cases and “Controversies[,] U.S. Const. art. 3, § 2, and [t]he doctrine of standing gives meaning to these constitutional limits by ‘identif[ying] those disputes which are appropriately resolved through the judicial process[,] Susan B. Anthony List v. Driehaus, ––– U.S. ––––, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014)

(second ...

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