Fla. Carry, Inc. v. City of Miami Beach
| Citation | 564 F.Supp.3d 1213 |
| Decision Date | 30 September 2021 |
| Docket Number | Case No. 19-22303-CIV-WILLIAMS |
| Parties | FLORIDA CARRY, INC. et al., Plaintiffs, v. CITY OF MIAMI BEACH, et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Eric J. Friday, Kingry, Friday, Jacksonville, FL, Noel Howard Sohn Flasterstein, Law Offices of Noel H. Flasterstein, P.A., Tampa, FL, for Plaintiffs.
Mark Andrew Fishman, Robert F. Rosenwald, Jr., City of Miami Beach City Attorney's Office, Miami Beach, FL, for Defendant City of Miami Beach.
Bradley Francis Zappala, Maryjeanne Marrero, Robert L. Switkes, Switkes & Zappala, P.A., Miami Beach, FL, for Defendants Officer Michael Garcia, Officer Kenneth Bolduc, Officer Gustavo Villamil, Officer Brian Rivera, Lt. Eduardo Garcia, Officer Jessica Salabarria, Officer Robert Mitchell, Officer Nahami Bicelis, Officer Lavaniel Hicks, Officer Elizabeth Vidal.
THIS MATTER is before the Court on the Motions for Summary Judgment filed by Defendant City of Miami Beach and the Defendant Officers1 (collectively, "Defendants") (DE 56; DE 59). Plaintiffs filed a response (DE 69) and Defendants filed a reply (DE 73). For the reasons below, the Motions (DE 56; DE 59) are GRANTED IN PART .
At the time of the subject incident, the Individual Plaintiffs3 were members of Florida Carry Inc. ("Florida Carry"), a gun rights advocacy group. (Def. SOMF at ¶ 2; DE 58-1). Florida Carry describes itself as "work[ing] tirelessly toward repealing and striking down ill-conceived gun control laws" and "advancing the fundamental civil right of all Floridians to keep and bear arms for self-defense." Id. Through social media, the group organized "open carry" events, gatherings during which members openly carried firearms in public places—despite the general prohibition in Florida against open carry.4 (Def. SOMF at ¶ 3). For instance, the organization held "fishing events" on piers and marinas across the state, during which members would openly carry while purporting to fish. (Id. at ¶ 4). Before the gatherings, the organization would customarily notify local law enforcement. (Id. at ¶ 5). The notice informed the police that the event did not pose a real threat to public safety, and therefore, it was "unnecessary" for officers to respond to "man-with-a-gun" calls from concerned citizens. (DE 58-5 at 45:07-22).
On the morning of Sunday, June 24, 2018, the Individual Plaintiffs travelled to South Pointe Park Pier (the "Pier") for a Florida Carry "fishing event." (Def. SOMF at ¶ 10). The Pier, a crowded tourist and recreational area, is located at the southernmost point of the City of Miami Beach (the "City"). (Def. SOMF at ¶¶ 11; DE 58-11 at ¶ 7). The north side of the Pier overlooks South Pointe Beach, one of the City's most crowded beaches. Id. The south side of the Pier is adjacent to the Government Cut inlet, a heavily-traveled waterway. (Id. at ¶ 11). The Pier is also located approximately 1,500 yard southeast of the United States Coast Guard Station and 1,700 yards southeast of the embark/disembark facility for tourists and cruise ships. (Id. at ¶ 13; DE 58-10 at 11). According to Defendants’ Law Enforcement Practices Expert, Ron Martinelli, both facilities are "considered high-value ‘soft targets’ for terrorist and active shooter / mass murderers."5 (DE 58-10 at 11).
Before the event, Plaintiff Philpot, on behalf of Florida Carry, said he attempted to notify the City about the gathering. (Def. SOMF at ¶ 6). On June 18, 2018, he sent an email with a Word document attachment regarding the event to the City's Chief of Police and the City Attorney. (Def. SOMF at ¶ 6; DE 58-2 at 50). However, the document attachment was in a format that could not be opened by a person of normal computer skills. Id. As such, the City did not actually receive any advance notice. (Def. SOMF at ¶ 6). Moreover, Philpot did not reach out to confirm whether the City had received his email. (DE 58-5 at 35:22-25).
At approximately 9:45 A.M. on June 24, 2018, non-party Park Ranger Vinas observed a group of armed men on the Pier. (Def. SOMF at ¶ 15). He approached them and made contact with Plaintiffs Taylor, Philpot, and Jenkins, who were each visibly armed with semi-automatic pistols contained in outside-the-waistband holsters. (Def. SOMF at ¶ 16; Ex. C-1).6 Devine was also present with a "buck folding knife," but was not visibly carrying a firearm. (Def. SOMF at ¶ 16; DE 58-12). Ranger Vinas explained to the armed men that open carry was prohibited and asked them to put away their weapons. (Def. SOMF at ¶ 18). However, they declined to do so, and told Ranger Vinas that it was lawful for them to openly carry while fishing on the Pier. (Def. SOMF at ¶ 20; DE 58-3 at 3-4). Taylor also handed Ranger Vinas a sheet of paper setting forth Fla. Stat. § 790.25(3)(h).7 (Ex. C-1). After several minutes of discussion, Ranger Vinas called the City's dispatch to report three visibly armed men at the Pier. (Def. SOMF at ¶ 22; DE 58-13 at 2). At approximately 9:55:30 AM, a police dispatch call regarding three males on the Pier with visible firearms went out over police radio. (Def. SOMF at ¶ 23; DE 58-13 at 2).
The video recorded by Taylor shows that none of the four men appeared to be actively fishing before or during their interaction with Ranger Vinas. (Ex. C-1; DE 58-10 at 9-21). Their fishing poles were unattended, and left leaning against the railing, and their tackle boxes were some distance away. Id. As Ranger Vinas left the area, Plaintiff Gutierrez, who was also visibly armed, arrived and joined the other men. (Def. SOMF at ¶ 24; Ex. C-1; DE 58-14 at 38-39). Gutierrez dropped an un-baited fishing line into the water before leaning it against the railing. (Def. SOMF at ¶ 25; Ex. C-1). He told Taylor "I'm not going to catch anything, I didn't even bring a bait." Id.
Approximately two minutes after Gutierrez arrived, Officers M. Garcia, Villamil, Rivera, and Sergeant Bolduc arrived on the Pier in response to the dispatch call. (Def. SOMF at ¶ 26). They began their approach towards the men: Taylor, Jenkins, Philpot, Gutierrez, and Devine. Id. As the officers proceeded towards them, the Plaintiffs were not holding a fishing pole or actively fishing. (DE 58-11 at ¶ 8). As they advanced towards the men, and confirmed that several had semi-automatic firearms, the officers drew their firearms and instructed these Plaintiffs to place their hands on their heads. (Def. SOMF at ¶ 27; Ex. C-1; DE 58-11; DE 58-12). Officers M. Garcia, Rivera, and Villamil had their firearms raised, while Sergeant Bolduc had his weapon in the low ready position. (Def. SOMF at ¶ 28; Ex. C-1).
M. Garcia, Villamil, and Rivera then proceeded to handcuff and disarm the armed men. (Def. SOMF at ¶ 29). Taylor was handcuffed and disarmed by Villamil; Gutierrez and Philpot by M. Garcia; and Jenkins by Rivera. (Def. SOMF at ¶ 30-32). The officers also rendered the firearms safe by removing the magazines and chambered rounds. Id. Devine, who only possessed a "buck folding knife," was not handcuffed. (Id. at ¶ 33). The men then complied with the officers’ instructions to remain seated. (Exs. C-1, Q-1). The officers informed them that they were not under arrest, but only detained temporarily pending an investigation. (Def. SOMF at ¶ 35; DE 58-12; DE 58-3 at 10:14-17). Immediately after gaining the men's compliance, the officers either holstered their weapons or pointed them to the ground. (Def. SOMF at ¶ 34).
Shortly after these five Plaintiffs were detained, M. Garcia and Rivera were informed that there was another armed subject at the entrance of the Pier. (Def. SOMF at ¶ 44; DE 58-13; DE 58-15). As they approached that individual—who turned out to be Plaintiff Weiss—and observed that he was visibly armed, they drew their weapons and instructed him to put his hands on his head. (Def. SOMF at ¶ 44; Ex. Q-1). M. Garcia removed Weiss’ holstered firearm and rendered it safe. Id. However, he was not handcuffed. Id. The officers allowed Weiss to collect his belongings and asked him to walk with them to join the other five Plaintiffs on the pier. Id. When they arrived at that area, M. Garcia asked Weiss to stay seated while the officers conducted their investigation. (Def. SOMF at ¶ 49). Soon after, the officers closed the Pier to the public. (Id. at ¶ 50).
In addition to the initial responding officers, several others also arrived on the scene to assist. (Id. at ¶ 36). Officer Hicks was one of the first backup officers to arrive. (Id. at ¶ 37). When he arrived, Gutierrez asked him to remove a loaded firearm from his right pocket. (Id. ; DE 58-23). Hicks gently removed the firearm and conducted a brief pat-down to ensure that Gutierrez did not possess other weapons. (Def. SOMF at ¶ 38; Ex. X).
Officer Mitchell arrived on the scene shortly afterwards. (Id. at ¶ 39). When he arrived, the original five Plaintiffs had already been secured. Id. Nonetheless, he remained on the scene for security and support until the investigation was completed. Id. His involvement was limited to completing a property receipt and returning property to Gutierrez. Id.
Sergeant Salabarria also responded to the scene. (Def. SOMF at ¶ 40; DE 58-22). Upon her arrival, the men had already been detained. Id. She briefly stood by as the other officers performed their investigation but left shortly after. Id. She took no law enforcement actions and had no interaction with the Plaintiffs. Id.
Similarly, Bicelis arrived at the scene after the original five Plaintiffs had already been detained. (Def. SOMF at ¶ 41; DE 58-21). He remained for backup and aided with verifying information for the Offense Incident Reports. Id. He also completed a property receipt for...
To continue reading
Request your trial