91 F.3d 105 (11th Cir. 1996), 95-4410, Smith v. Avino

Docket Nº:95-4410.
Citation:91 F.3d 105
Party Name:Robert SMITH, Ernest Porter, American Civil Liberties Union of Florida, Incorporated, a Florida non-partisan organization, Roger Kinkle, on behalf of himself and all others similarly situated, Plaintiffs-Appellants, William Pitts, Plaintiff, v. Joaquin AVINO, in his official capacity as manager of Metropolitan Dade County, Florida, Metropolitan Dad
Case Date:August 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 105

91 F.3d 105 (11th Cir. 1996)

Robert SMITH, Ernest Porter, American Civil Liberties Union

of Florida, Incorporated, a Florida non-partisan

organization, Roger Kinkle, on behalf of himself and all

others similarly situated, Plaintiffs-Appellants,

William Pitts, Plaintiff,

v.

Joaquin AVINO, in his official capacity as manager of

Metropolitan Dade County, Florida, Metropolitan

Dade County, Defendants-Appellees.

No. 95-4410.

United States Court of Appeals, Eleventh Circuit

August 12, 1996

Page 106

[Copyrighted Material Omitted]

Page 107

Howard M. Talenfeld, Colodny, Fass & Talenfeld, P.A., Fort Lauderdale, FL, Terry Albritton, Tulane Law School, New Orleans, LA, for appellants.

Roy Wood, Office of County Attorney, Miami, FL, for appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS [*], Senior Circuit Judges.

RONEY, Senior Circuit Judge:

This is an official capacity suit against Metropolitan Dade County and its manager challenging the curfew that was imposed in the wake of Hurricane Andrew. The plaintiffs alleged the curfew was unconstitutionally vague and overly broad, both facially and as applied, and sought a declaratory decree, damages, and attorneys fees pursuant to 42 U.S.C. § 1988.

A final judgment for the defendants resulted from the decisions of two district judges: Judge K. Michael Moore denied plaintiffs' motion for summary judgment alleging the facial invalidity of the curfew, holding that the curfew was neither vague nor overbroad. Smith v. Avino, 866 F.Supp. 1399 (Oct. 20, 1994). In a subsequent order, he declined to reconsider that decision and refused 28 U.S.C. § 1292(b) certification for immediate appeal. Smith v. Avino, Case No. 92-2593-Civ-Moore (Dec. 8, 1994). Judge Jacob Mishler held a bench trial of the "as applied" claims. These claims asserted that the curfew was overbroad because it impinged on plaintiffs' personal liabilities, primarily the right of travel, and continued after the emergency had passed; and that the curfew was void for vagueness because it was selectively enforced against these plaintiffs. Based upon his findings of fact, Judge Mishler resolved the issues against the plaintiffs, and, declining to reconsider the earlier decisions of Judge Moore, entered final judgment for the defendants. Smith v. Avino, Case No.92-2593-Civ-Moore/Mishler (Feb. 27, 1995). Plaintiffs appeal all three of those decisions.

Holding that these judges applied the correct standard in considering challenges such as this one to curfews promulgated in times of natural disaster emergencies, made not clearly erroneous findings of fact, and properly held that based on those facts and the correct standard of review, the curfew was not unconstitutionally vague or overly broad, we affirm.

We decide this case on the basis of the constitutionality of the curfew. Defendants argued that because the defendant county manager and the County itself acted as agents or instrumentalities of the State of Florida, they cannot be held liable because they were not the final policy making authorities and are immune from suit under the Eleventh Amendment. Judge Moore refused to dismiss the case on this ground. Judge Mishler held that declaratory relief outlining the permissible scope of future executive actions would be an advisory opinion contrary to Article III jurisdiction. We voice no opinion as to the correctness of those decisions. We assume, without deciding, that plaintiffs here are entitled to a decision addressing...

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