Keating v. City of Miami
| Decision Date | 20 January 2009 |
| Docket Number | Case No. 07-23005-CIV. |
| Citation | 598 F.Supp.2d 1315 |
| Parties | Jeffrey KEATING, Rich Hersh, Bonnie Redding, Jason Kotoch and Raymond Del Papa, Plaintiffs, v. CITY OF MIAMI, a municipal entity; City of Miami Beach, a municipal entity; City of Fort Lauderdale, a municipal entity; Broward Sheriff Al Lamberti, in his official capacity as Sheriff of Broward County; Miami Police Department Chief John Timoney, in his individual capacity; Miami Police Department Deputy Chief Frank Fernandez, in his individual capacity; Miami Police Department Major Adam Burden, in his individual capacity; Miami Police Department Captain Thomas Cannon, in his individual capacity; Miami Beach Police Department Lieutenant Ed Yero, in his individual capacity; Broward Sheriff's Office Captain John Brooks, in his individual capacity; Fort Lauderdale Police Department Captain Lee Spector, in his individual capacity, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Robert William Ross, Jr., Ross Law Firm, Lake Worth, FL, for Plaintiffs.
Warren Bittner, Henry Joseph Hunnefeld, Kimberly Anne McCoy, Miami City Attorney's Office, Miami, FL, Donald Mark Papy, City of Miami Beach, Miami, FL, Alain E. Boileau, Adorno & Yoss LLP, Dieter Klaus Gunther, Robert Hunt Schwartz, Adorno & Yoss, Fort Lauderdale, FL, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
THIS CAUSE came before the Court upon City of Miami's & Miami Police Supervisors' Motion to Dismiss Amended Complaint (D.E. No. 68), Defendants Lee Spector and City of Fort Lauderdale's Motion to Dismiss Counts Six, Seven, Eight, Fourteen, Fifteen, Sixteen, Seventeen, Twenty-One, Twenty-Two, Twenty-Three, and Twenty-Seven of Plaintiffs' First Amended Complaint (D.E. No. 69), The City of Miami Beach's Motion to Dismiss Counts Six, Seven, Eight, Twenty-Four, Twenty-Five, and Twenty-Six of Plaintiffs' First Amended Complaint (D.E. No. 70), Defendant Ed Yero's Motion to Dismiss the Amended Complaint (D.E. No. 71), and Defendants Broward Sheriff Alfred Lamberti and John Brooks' Motion to Dismiss the First Amended Complaint (D.E. No. 72). Plaintiffs Jeffrey Keating, Rich Hersh, Bonnie Redding, Jason Kotoch, and Raymond Del Papa (collectively "Plaintiffs") have filed suit against Defendants the City of Miami, the City of Miami Beach, the City of Ft. Lauderdale, Broward County Sheriff Al Lamberti in his official capacity ("BSO"),1 Miami Police Department Chief John Timoney in his individual capacity ("Timoney"), Miami Police Department Deputy Chief Frank Fernandez in his individual capacity ("Fernandez"), Miami Police Department Major Adam Burden in his individual capacity ("Burden"), Miami Police Department Captain Thomas Cannon in his individual capacity ("Cannon"), Miami Beach Police Department Lieutenant Ed Yero in his individual capacity ("Yero"), Broward Sheriff's Office Captain John Brooks in his individual capacity ("Brooks"), and Ft. Lauderdale Police Department Lee Spector in his individual capacity ("Spector"), alleging violations of 42 U.S.C. § 1983 and state law claims for battery and negligence. All Defendants now move to dismiss the claims asserted against them pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. After careful consideration and after hearing oral argument on these motions at a hearing held on January 12, 2009, the Court grants in part and denies in part Defendants' motions to dismiss.
Plaintiffs' civil action arises from events surrounding the Free Trade Area of America's ("FTAA") ministerial meetings held in Miami, Florida in November 2003. Plaintiffs allege that Defendants' actions to limit the demonstration held outside the FTAA meetings in downtown Miami resulted in violations of Plaintiffs' constitutional rights and state tort law violations.
Plaintiffs allege that in preparation for the anticipated FTAA demonstrations, numerous governmental agencies created, ratified, and were bound by a Joint Operational Security Plan.2 As a part of this plan, Defendants agreed "to `submit to a single plan and a single command,' with defendants City of Miami and Timoney in a `primary leadership role.'" (D.E. No. 45, First Amended Complaint at ¶ 29). The Municipal Defendants3 also executed Mutual Aid Agreements in connection with the preparation for the FTAA meetings. Id. at ¶ 24.
As a part of the Joint Operational Security Plan, Rules of Engagement were adopted that each agency was required to follow. Id. These Rules of Engagement included authorization for the use of "so called `less lethal' munitions, including bean bag projectiles, `pepper-spray' projectiles, batons, tasers, chemical weapons, and/or other uses of force against Plaintiffs." Id. at ¶ 26. Plaintiffs also allege that the Rules of Engagement "improperly allowed use of excessive physical force against individuals involved in passive, non-violent conduct." Id. at ¶ 36. Plaintiffs allege that the City of Miami, the City of Miami Beach, the City of Ft. Lauderdale and the BSO all adopted these Rules of Engagement. Id.
In addition, Plaintiffs allege that "[a] specific, although unwritten, part of the [Joint Operational Security Plan] . .. was the use of excessive force and/or preemptive arrests based on political and ideological profiling, without any individualized probable cause to believe that criminal conduct had already occurred or that such conduct was imminent." Id. at ¶ 32. They also allege that part of the plan was the wrongful "herding" of peaceful protesters with the intention to disrupt "core political speech and other First Amendment-protected expressive activity." Id. at ¶¶ 1, 32.
The command structure of this Joint Operational Security Plan was comprised of the Miami Police Department Steering Committee and the Joint Law Enforcement Command ("JLEC"). The JLEC "consisted of the heads of the agencies, or their delegated representatives, who were assigned `a major role or specific function for the security of the FTAA ... [meetings].'" Id. at ¶ 29. Plaintiffs allege that each of the agencies that was part of the JLEC was instrumental in devising these policies and that they all ratified and adopted through a final policymaker the policies that were part of the Joint Operational Security Plain. Id. at ¶¶ 22-30.
Plaintiffs allege that on November 20, 2003, the American Federation of Labor & Congress of Industrial Organizations ("AFL-CIO") and many other organizations planned lawful demonstrations. Id. at ¶ 42. Plaintiffs allege that on November 20, 2003, the supervisory officer Defendants including Timoney, Fernandez, Cannon, Burden, Yero, Spector, and Brooks implemented the Joint Operational Security Plan to "limit protest by targeting and intimidating ideological demonstrators." Id. Plaintiffs specifically allege that
At various times during the day these supervisory defendants deployed mobile police lines to interfere with freedom of association; encircled protestors with lines of riot-gear clad officers with weapons drawn; dispersed lawful assemblies; unlawfully detained, searched and arrested those opposed to the FTAA with-out individualized probable cause; and used brutal physical force, including a wide array of munitions as well as the release of chemical toxins, against peaceful demonstrators and members of the news media.
Plaintiffs specifically allege that on the afternoon of November 20, 2003, the AFL-CIO began a march leaving from the Bayfront Park Amphitheater, marching through downtown and then returning to the amphitheater.4 Id. at ¶ 45. After the march ended, demonstrators remained on Biscayne Boulevard on the grass lawn near the Amphitheater. Id. Plaintiffs were among the demonstrators that remained in the grass.
After about ten minutes, a representative of the police informed the demonstrators that they could remain in the area as long as they remained peaceful; however, almost immediately after this announcement, Plaintiffs allege that "officers from the Miami Police Department, Miami Beach Police Department, City of Fort Lauderdale Police Department and [the] BSO opened fire on the demonstrators with tear gas, pepper-spray, shotgun-based projectiles and other weapons." Id. at ¶ 46. Plaintiffs allege that the officers then began marching slowly shoulder-to-shoulder. Id. They headed north on Biscayne Boulevard, "continuing to fire pepper-spray, beanbags, and other shotgun-based projectiles, and other weapons at unarmed demonstrators and members of the news media, including Plaintiff Keating" who was shooting video of the demonstrations. Id. at ¶¶ 6, 46. The police line marched north on Biscayne Boulevard until they reached Northeast Third Street where the line pivoted and began forcing the remaining demonstrators and others west on Northeast Third Street. Id. at ¶ 49.
Plaintiffs allege that while this was occurring Defendants Timoney, Fernandez, Burden, Cannon, Yero, Brooks, and Spector were either on or just behind the advancing line of police officers and were acting in their supervisory capacity at all times. Id. at ¶ 47. Plaintiffs allege that it was Defendant Yero who ordered the Miami Beach police officers to begin discharging tear gas. Id. at ¶ 53. Plaintiffs also allege that any of these supervisory defendants "could have intervened at any time to prevent the continued violations of the unarmed individuals, including Plaintiffs." Id.
Plaintiff Jeffrey Keating ("Keating") arrived at the Bayfront Amphitheater around noon to film speeches made by the...
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Gregory v. Miami-Dade Cnty.
...officer to commit an illegal act in the course of his or her employment while acting in good faith," Keating v. City of Miami, 598 F. Supp. 2d 1315, 1341 (S.D. Fla. 2009), and because generally a jury must decide "whether the deputy acted in bad faith, with malicious purpose, or in a manner......
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Gregory v. Miami-Dade Cnty.
...See Lemay v. Kondrk, 860 So.2d 1022, 1025 (Fla. 5th DCA 2003) (Orfinger, J., dissenting); see also Keating v. City of Miami, 598 F.Supp.2d 1315, 1343 (S.D.Fla.2009). Even if the Court could view Plaintiffs' allegation concerning Officer Perez's overreaction in isolation, it would still impl......