American Fed. of Labor-Congress v. City of Miami, Case No. 07-22966-CIV.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtUrsula Ungaro
Citation650 F.Supp.2d 1258
Docket NumberCase No. 07-22966-CIV.
Decision Date02 September 2009
650 F.Supp.2d 1258
CITY OF MIAMI et al., Defendants.
Case No. 07-22966-CIV.
United States District Court, S.D. Florida.
September 2, 2009.

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Jonathan C. Moore, Beldock Levine & Hoffman LLP, New York, NY, Kathy L. Krieger, James & Hoffman P.C., Washington, DC, Mara Shlackman, Mara Shlackman PL, Fort Lauderdale, FL, Rae Shearn, Rae Shearn Law Offices, Roy D. Wasson, Miami, FL, Robert William Ross, Jr., Ross Law Firm, Lake Worth, FL, Plaintiffs.

Warren Bittner, Miami City Attorney's Office, Miami, FL, Ronald Jay Cohen, Cohen & Rind, P.A., Miami Lakes, FL, for Defendants.


URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Defendants' Amended Motion for Final Summary Judgment, filed April 7, 2009 (D.E. 221). Plaintiffs filed their response in opposition on April 25, 2009 (D.E. 239), to which Defendants replied on May 8, 2009 (D.E. 247). As such, the Motion is now ripe for adjudication.

THE COURT has considered the Motion and the pertinent portions of the record

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and is otherwise fully advised in the premises.


This action arises out of the Free Trade Area of the Americas ("FTAA") summit in November 2003 in Miami, Florida, and a series of protests of that summit. (Defs' Amended Concise Statement of Material Facts ("DSMF"), D.E. 221-2, ¶ 1; Pls' Resp. to Defs' Facts ("PRF"), D.E. 237, ¶ 1.)

I. The Parties

Plaintiff American Federation of Labor-Congress of Industrial Organizations ("AFL-CIO") is a federation of labor organizations that sponsored several activities the week of the FTAA summit. Plaintiffs Thea Lee ("Lee"), Deborah Dion ("Dion"), Michael Cavanaugh ("Cavanaugh"), and Stewart Acuff ("Acuff") are AFL-CIO employees who organized and attended the AFL-CIO events that week.

Plaintiff Florida Alliance for Retired Americans ("FLARA") is a non-profit organization that worked with the AFL-CIO to provide FTAA-related programs for senior citizens in November 2003.

Defendant City of Miami ("City") is a municipal corporation that hosted the FTAA summit. Defendant John Timoney ("Chief Timoney") is a City employee and was, at all relevant times, the Chief of the City's police department. Chief Timoney was commander of the City's FTAA law enforcement operation, which included surveillance activities, deployment of personnel, and the selection of weapons used. (D.E. 236-5 at 11.) Defendant Frank Fernandez ("Deputy Chief Fernandez") is a City employee and was, at all relevant times, Deputy Chief of the City's police department. Deputy Chief Fernandez had the overall responsibility for FTAA planning and preparations. (Frank Fernandez Aff., D.E. 207, ¶ 1.) Defendant Thomas Cannon ("Captain Cannon") is a City employee and was, at all relevant times, a captain in the City's police department. Captain Cannon commanded the field operations during the FTAA demonstrations. (PRF ¶ 7.)

II. Preparations for FTAA Summit and Protests

In anticipation of the FTAA summit, the AFL-CIO obtained permits from the City for a series of assemblies and a protest march. (DSMF ¶ 2; PRF ¶ 2.) Additionally, the AFL-CIO rented the Bayfront Park Amphitheater for an evening gala on November 19, 2009, and for a rally on November 20, 2009. (DSMF ¶ 3; PRF ¶ 3.) The AFL-CIO contracted to have City police officers provide security at Bayfront Park Amphitheater. (DSMF ¶ 4; PRF ¶ 4.) The AFL-CIO also contracted with outside vendors to supply the goods and services for its events, including lighting, sound and video crews, bottled water, signs, portable toilets, and buses. (DSMF ¶ 4; PRF ¶ 4.) Together with the FLARA, it arranged for chartered buses to transport senior citizens to the events. (PRF ¶ 27.)

The City's police department (the "MPD") began preparing for the FTAA summit approximately eleven months prior to the event. (DSMF ¶ 4; PRF ¶ 4.) Deputy Chief Fernandez and Captain Cannon developed the operational plan for the FTAA summit. (Fernandez Dep., Dec. 1, 2004, 39:14-18.) The MPD enlisted help from several other law enforcement agencies, such as the Broward Sheriffs Office and the City of Miami Beach Police Department. (DSMF ¶ 7.) These assisting agencies operated under Mutual Aid Agreements executed in October or November 2003, wherein they agreed to provide operational assistance to the City during the FTAA summit. (DSMF ¶ 8; PRF ¶ 7.) Nonetheless, MPD retained overall

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command and control of the relevant policing activities during the FTAA. (See DSMF ¶ 9.)

The FTAA steering committee, which was chaired by Deputy Chief Fernandez, developed Rules of Engagement for the purpose of interacting with protestors. (See Michael Colombo Dep., Jan. 21, 2009, 12:16-22.) All assisting agencies agreed to comply with the Rules of Engagement as a condition of providing assistance during the FTAA. (Frank Fernandez Aff., D.E. 207, ¶¶ 4-5.) Each agency providing assistance was responsible for training its respective personnel on the parameters of the Rules of Engagement. (Id.)

On November 13, 2003, days before the FTAA summit, the Miami City Commission passed City Code Section 54-6.1, entitled "Parade and Assembly Prohibitions." That ordinance criminalized the possession of a variety of objects, including, inter alia, glass bottles, stones, and pieces of metal or plastic outside certain size restrictions, by any person gathered in a group of more than eight persons at a public place for a common purpose for more than thirty minutes.

III. The AFL-CIO Events at the FTAA

The first major AFL-CIO event the week of the FTAA summit was a labor forum held on November 18, 2003, at the Gusman Theater in Miami, Florida. (Lee Dep. 10:2-14.) The event took place as scheduled, but not as planned. (Lee Dep. 10:13-14.) There was an extraordinary police presence outside the theater, police were "stopping and questioning everybody," and the forum was not as well attended as Plaintiffs expected. (See Lee Dep. 11:2-16.)

On November 19, 2003, the AFL-CIO held a gala at the Bayfront Park Amphitheater, which also took place as scheduled but not as planned. (Cavanaugh Dep., Aug. 14, 2009, 34-35.) Daytime preparations for the event were disrupted because police denied vendors access to the venue, and staff members were harassed by policemen who pointed guns at their heads several times during the day. (Dion Dep. 41:14-22.) An unknown officer at the access gate to the Bayfront Park Amphitheater briefly pointed a gun at Plaintiff Dion's head. (DSMF ¶ 33.) Dion felt physically threatened and feared for her safety. (PRF ¶ 33.) The gala itself was covered by hundreds of police in riot gear, there were high security fences erected around the area, and loud helicopters flew overhead. (Cavanaugh Dep., 35:12-20; Acuff Dep., Aug. 11, 2008, 13:4-24.) As a result, attendance for the event was lower than anticipated. (Cavanaugh Dep. 42:3-25; Acuff Dep. 14:1-5.)

The AFL-CIO had several events scheduled for next day, November 20, 2003. First, there was a senior breakfast scheduled for 10:00 a.m. in the Bayfront Park Amphitheater. Second, there was a rally scheduled in the Bayfront Park Amphitheater for 12:00 p.m. Third, there was a permitted march scheduled for 2:00 p.m. All events were disrupted. (See Lee Dep., Aug. 8, 2008, 15-16.)

The disruptions began at approximately 7:30 a.m. when police locked down the Bayfront Park Amphitheater and prevented event preparations and volunteer training during that time. Two unnamed officers confronted Plaintiffs Cavanaugh and Dion, put guns in their faces, and told them to sit down. (Cavanaugh Dep. 46:4-10; 49:3-17; Dion Dep. 50:13-21.) Other officers threateningly beat their batons on chairs. (Cavanaugh Dep. 47:17-21.) Acuff was also locked down in the amphitheater. (DSMF ¶ 42; PRF ¶ 42.) The lock down lasted approximately one-and-a-half to two hours. (DSF ¶ 38; PRF ¶ 38.)

The 10:00 a.m. senior breakfast was also disrupted. Plaintiffs had arranged for

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charter buses to drop off seniors at a convenient location in order for them to attend the breakfast. (Lee Dep. 17:13-25.) Police told some buses, however, to turn around and return home, which the buses did. (Dion Dep. 48:8-15.) Other buses dropped the seniors off at a location several blocks away from the event. (Dion Dep. 48-48.) Consequently, many seniors were unable to attend the senior breakfast; those that were able to attend were shook up, scared, and angry. (Cavanaugh Dep. 54-55; Lee Dep. 18:11-15.) Additionally, the AFL-CIO did not have access to the food or water that they had purchased for the seniors. (Lee Dep. 18:11-15.)

Between 11:00 a.m. and 12:30 p.m., unidentified police locked down the Bayfront Park Amphitheater a second time and erroneously told potential rally attendees that they could not enter because the rally was an union-only event. (Cavanaugh Dep. 58:11-23.) The police officers also threw some potential attendees onto the ground, at which time other potential attendees "backed off" and did not attend the rally. (Id.) Additionally, the police denied protestors, including Plaintiff Acuff, access to the rented port-a-potties. (DSF ¶ 22(c); PRF ¶ 22(c); Acuff Dep. 72:15-23; 91:15-23.)

The AFL-CIO protest march was scheduled to depart from the Bayfront Park Amphitheater. (Cavanaugh Dep. 63:6-24.) The police presence inside and outside the amphitheater disrupted the beginning of the march, and police vehicles blocked the march leaders' access to the public roads. (Id.) Once the march leaders found their way outside the amphitheater, they discovered that their permitted route had been blocked by police. (Cavanaugh Dep. 64:11-17.) The AFL-CIO affiliated demonstrators marched an abbreviated route and dispersed after the march ended. (Cavanaugh Dep. 65-66.)

After the AFL-CIO march, Cavanaugh and Acuff heard...

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