Editor’s note: This is the second of a two-part series.
The Jackman family just wanted to be left alone.
The Schwarz family sought the same.
The camera Richard Schwarz installed for the purposes of protecting his wife, Catherine Cebrick-Schwarz, seemingly peered into the Jackmans’ lanai where Bridget Jackman breastfed their newborn daughter and landed both families in court. Allegations flew between the Schwarzes — who are in their 60s — and the Jackmans — who are in their 30s and 40s — and they were ugly.
The definition of privacy was on trial. Did the Schwarzes invade the Jackmans’ privacy, even if it’s possible the Schwarzes never looked at the camera footage? Is it still an invasion if only a sliver of the Jackmans’ property is on the footage?
Judge Richard Walker ruled the Jackmans’ complaint was unwarranted and the temporary injunction unnecessary. He agreed with the Jackmans that the camera appeared to be pointed in their direction, but said the video evidence provided by the Schwarzes was persuasive enough to convince him their intention was to monitor their own property.
“(Bridget Jackman’s) testimony about being embarrassed, about not wanting to be out, she had mentioned that in the past things that she would do that were private things and things with her children, she is not comfortable doing that in the backyard because of the position of the camera,” said Walker according to the transcript. “But the position of the camera is not what controls here. It is the actual footage.”
Walker also agreed with the Schwarzes that the assertions put forth by the Jackmans in paragraph 10 of the complaint were unfounded.
“There was no evidence to support those allegations in the verified complaint, at least not introduced in these proceedings,” he said.
Since the camera had gone up in the days following the call to the police, the Jackmans had argued the camera was, in part, retaliation for the incident. Walker disagreed, noting the stress in Cebrick-Schwarz’s voice during the audio recording.
“Certainly that demeanor, her tone of voice, the nonverbal communication is someone who is distraught by these circumstances,” Walker said. “There’s nothing from that that would indicate that this is vindictive and there’s a motive to in any way foster or perpetuate the type of conduct that is pure speculation and is contained in paragraph 10 of the complaint.”
When they realized they were headed to court regarding the camera, the Schwarzes turned the camera toward their own roof to stop it from recording anything. The judge also noted that action.
“I find the testimony, at least in these proceedings, to be persuasive that, after that camera was positioned where that camera was, that the circumstances that led to the installation of the camera, that they have ceased,” Walker said. “I find this: That based on the evidence adduced in this proceeding, that the plaintiffs have not met their evidentiary burden, and I’m going to deny the request for a temporary injunction.”
WHAT IS PRIVACY?
“This was ridiculous,” Keiron Jackman said last week. “That ruling is like this: It’s like saying a Peeping Tom is OK to look through his peephole because the peephole doesn’t see everything.”
He said his primary issue with the ruling was Walker’s seeming reliance on the content of the Schwarz’s video, rather than the fear its placement caused the Jackmans.
“Invasion isn’t necessarily what you saw; it’s the intrusion,” he said. “What the judge said … it’s like this: I’m going to peep over your fence and I’m going to wear shades and when I come to court, I’m going to say, ‘Your Honor, my eyes were closed.’
“The law doesn’t look at what you actually see,” he continued. “They were saying they never looked at the camera but that’s not the point. It’s legal gymnastics.”
Not content with the ruling, though acknowledging the Schwarzes have turned the camera, Keiron Jackman said he and his wife are mulling their legal options. Cebrick-Schwarz spoke on background but declined to speak on the record for this story, citing fear of future litigation.
“What this ruling does is throws everybody’s right to privacy into question,” he said.
The Jackmans had believed they had clear proof that met the threshold for intrusion upon seclusion. As more and more surveillance cameras go up across the nation and the technology of those systems advances, the seemingly clear legal precedent could be headed for a murky future.
For the moment, federal and state laws have drawn a line at what is in public view. Cameras can record anything that can be seen from a street or public thoroughfare.
A case in Fort Lauderdale in 2014 ruled that a neighbor’s camera — situated on a 12-foot pole and peering into the neighbor’s yard — was allowed. According to Florida law, neighbors can record another property’s yard, the exterior of the house or anything else on the property that is in public view.
“You have the right to use your property the way you see fit and that can include cameras,” Broward County public defender Howard Finkelstein told the South Florida Sun-Sentinel at the time. “If the camera is pointed at the neighbor’s front door, the right of the homeowner to have cameras trumps the neighbor’s privacy.
Cases like the one involving the Jackmans and Schwarzes are still rare, but as technology improves and a camera’s ability to record sound increases, the law’s view changes drastically. Florida is a two-party state, meaning any audio recording cannot be done by one party without the other’s consent.
If the Schwarzes’ camera recorded audio, the fact it wasn’t capturing any images of the Jackman family would have been irrelevant, since the Jackmans did not consent to be recorded in that manner.
As the world becomes increasingly surveilled, police departments are often the first call when disputes arise. It is a dicey situation for police departments, since the majority of such disputes are considered civil and not criminal, and all the officers can do is attempt to defuse the situation and make suggestions.
“It’s a civil issue, so we’re not going out there and tearing down cameras or that sort of thing,” said Josh Taylor, the North Port Police Department’s public information officer. “For the most part, you have to do what happened in this case, which is take someone to court. The issue from what I understand of this case is the recording of the back yard. If that recording contains audio, that’s entirely different.”
Whether or not the Jackmans pursue further litigation, there is one thing they definitely plan to do:
“It’s unfortunate,” Keiron Jackman said. “It really is, but we don’t feel safe here, anymore.”