Owaki v. City of Miami, No. 06-20737-CIV-KING.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Writing for the CourtJames Lawrence King
Citation491 F.Supp.2d 1140
Docket NumberNo. 06-20737-CIV-KING.
Decision Date21 June 2007
PartiesEdward OWAKI, Plaintiff, v. CITY OF MIAMI, a political subdivision of the state of Florida, Miami Police Officer Darian Williams, Individually, Miami Police Major Adam Burden, Individually, Miami Police LT Marilyn Gonzalez, Individually, Miami Police Sergeant Dawn Campbell, Individually, and Miami Police Officer John Doe No. 1, Individuall, Defendants.

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491 F.Supp.2d 1140
Edward OWAKI, Plaintiff,
v.
CITY OF MIAMI, a political subdivision of the state of Florida, Miami Police Officer Darian Williams, Individually, Miami Police Major Adam Burden, Individually, Miami Police LT Marilyn Gonzalez, Individually, Miami Police Sergeant Dawn Campbell, Individually, and Miami Police Officer John Doe No. 1, Individuall, Defendants.
No. 06-20737-CIV-KING.
United States District Court, S.D. Florida, Miami Division.
June 21, 2007.

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John De Leon, Esq., Raymond J. Taseff, Esq., Chavez & De Leon, South Miami, FL, Elizabeth M. Iglesias, Esq., Iglesias Law Firm PL, University of Miami School of Law, Coral Gables, FL, for Plaintiff.

Warren Bittner, Esq., Miami City Attorney's Office, Jeffrey Paul Ehrlich, Esq., Dade County Attorney's Office, Miami, FL, Beverly A. Pohl, Esq., Broad and Cassel, Fort Lauderdale, FL, for Defendants.

ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

JAMES LAWRENCE KING, District Judge.


THIS CAUSE is before the Court upon the filing of three (3) separate motions for summary judgment on the last day of the deadline for pleading, March 12, 2007, on behalf of the Defendant City of Miami (D.E.# 64) and five (5) individual Defendant police officers Williams, Burden, Gonzalez, Campbell and John Doe No. 1, (D.E. # 65 and 66).1 These motions have been fully briefed and were orally argued at the final pretrial conference conducted May 11, 2007, after the completion of all discovery and motion practice.

The United States District Court has jurisdiction over this removed action pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1331, and 28 U.S.C. § 1343. The parties have stipulated in their Joint Pretrial Stipulation filed May 4, 2007 (D.E.# 142) that the claims raised by Plaintiff Edward Owaki in his Second Amended Complaint (D.E.# 28)2 and the separate Answers filed thereto by the City and the individual Defendants (D.E. # s 34, 35, 36, 37 and 57) address the following agreed issues:

"This is a claim by Plaintiff, OWAKI, against the Defendants, CITY, OFF. WILLIAMS, SGT. CAMPBELL, LT. GONZALEZ, and MAG. BURDEN for alleged violations of civil rights, false arrest and battery. EDWARD OWAKI claims that he was arrested by OFF. WILLIAMS and SGT. CAMPBELL without probable cause and that excessive force was used during his apprehension. OWAKI claims that Supervisors SGT. CAMPBELL, LT. GONZALEZ and MAG. BURDEN failed to adequately control and supervise the subordinate officers under their command who were responsible for the arrest and the alleged used of excessive force against OWAKI, and that the supervisors themselves failed to intervene to prevent the alleged use of excessive force. OWAKI further claims that the arrest and the alleged use of excessive force were the result of policies, practices and customs of the CITY."

After careful consideration of the written submissions, oral arguments, and relevant

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case and statutory law, the Court grants all three (3) pending defense motions for summary judgment, filed on behalf of the four (4) individual Defendants, John Doe, and the City of Miami, pursuant to Rule 56 Fed.R.Civ.P. and Local Rule 7.5, and enters summary judgment in favor of all Defendants on Claims I, II, III, IV, V and VI of the Second Amended Complaint. As to the claims asserted in Plaintiffs Second Amended Complaint, the pleadings, affidavits, depositions, interrogatories, admissions, pretrial stipulation, Plaintiffs S.D. Fla. L.R. 7.5 Statement, and the videotapes documenting the protest, riot and Plaintiffs arrest when considered in the light most favorable to Plaintiff, show that there is no genuine issue as to any material fact. The moving parties in these three (3) motions for summary judgment are entitled to judgment as a matter of law.

I. FACTUAL BACKGROUND

The City of Miami was designated as the site for a major International Conference of Ministers assembling for a meeting of the Free Trade Areas of the Americas (FTAA), during the week of November 17 thru November 24, 2003. The scheduling of this meeting received extensive national and international media coverage. (Def.'s Ex. "H" at 1.) This extensive publicity, occurring many months in advance of the actual date of the arrival of the ministers and other dignitaries who had been expected to attend, aroused the public interest. The agenda of subjects to be discussed by the ministers at FTAA was well known, and apparently highly controversial, to a substantial segment of the public. Meetings of individuals, groups and organizations opposed to the announced purpose of FTAA were held across America (and perhaps elsewhere) to organize plans to protest during the week of November 17, 2003 at the FTAA meeting. At these group meetings, held in the locality where the protestors lived, instructions were given to those who intended to come to Miami about safety problems they could expect to encounter. The attendees at these local meetings were told how the protestors could best protect themselves against teargas, fire hose sprays of water, mace and other methods to which they might be subjected by local police, while exercising their First Amendment right to protest.

A. Preparation for the FTAA Protest

The City of Miami Police Department was not unmindful of the probability that there might be as many as several thousand people coming to the site of the FTAA meetings to protest in a large demonstration. In anticipation of the attendance of several thousand protestors, the Chief of Police assembled a multi-agency law enforcement contingent of police officers from the City of Miami, Dade County, and Broward County Police Departments to formulate plans and training to ensure the security of the FTAA meetings, the safety of the participants and maintaining order on the streets of Miami during the anticipated protest.

Major Michael Columbo was put in charge of the training programs designed to prepare the City of Miami for the event. (Columbo Dep. at 11.) Major Columbo contacted Community Research Associates (CRA), a federal government contractor that regularly provides training courses throughout the nation to government agencies, to assist with training the officers for the FTAA event. Id. at 23. The CRA provided materials about other mass demonstrations so managing officers, such as Columbo, could learn from similar situations. Id. at 50. Major Columbo testified that he specifically studied an FTAA protest in Seattle, where the police dealt with troublesome violence, because the protestors

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at the Miami FTAA event were expected to act similarly. Id. at. 53. The CRA also provided a variety of training courses. About fifty (50) ground commanders, the officers in charge of decision making for the protest, took a forty (40) hour command course from August 11 thru August 15, 2003. Id. at 25-26. Bike and mass arrests teaming courses were also taught by lieutenants in the Police department. Id. at 22.

To ensure that the appropriate levels of force were used in controlling the crowd, the command staff were all given the same "force continuum," a guideline for the rules of engagement that all the agencies agreed they would use for the protest. Id. at 57-58. The force continuum consisted of a "resistance matrix" specifying that the level of force should correlate with the level of resistance offered against the officer. (Def.'s Ex. "H" at 7.) The Miami Police department's policy was that officers should use only the minimum force necessary to affect arrest, apprehension or physical control of a violent or resisting person. Id. at 6. Deadly, or potentially deadly, force was strictly prohibited, except as necessary for self defense or the defense of another.

The Steering Committee decided the police officers would carry 36 inch wooden batons for the protest. (Columbo Dep. at 38.) The batons, which had last been used in riots in the late eighties and early nineties, were brought out of storage specifically for the protest. Id. at 63. Major Columbo testified that they decided to use this particular baton because "[it] is a much safer weapon for an officer and for a protestor." Id. at 39. The Committee felt the 36 inch baton was the best for pushing a crowd along. Major Columbo explained that a 36 inch baton is used for "[u]nlawful assembly, if [the protestors] are being resistant. In an act of resistance the baton can be used as a pushing mechanism, and it can be used to defend the officer, also." Id. It is safer because "[y]ou have to hold it with two hands. We teach you to hold it with two hands. You cannot use it in a tomahawk manner, and unless your hands slip which happens in these types of situations, and it's much less likely to be used in an overhang fashion, even though we don't train to use an overhang." Id. at 48. When asked for evidence that the 36 inch baton was safer, Major Columbo said his claim was based on anecdotal evidence of his own and his colleagues years of managing civil disorders rather than on a statistical study or official report. Id.

Training on the new 36 inch batons was extensive. The officers who monitored the demonstrations in response platoons trained on the batons one day a week for about two months. (Bueno Dep. at 22.) Officers were taught specific positions. Major Columbo explained that the officers were taught to push not to strike:

[W]hen we want to move crowds they are to hold the baton in what is called a port arms position or ready position. They hold the baton with two hands, one over and one under so the baton cannot be taken from their grasp. When the decision is made from a command level personnel to give a dispersal order to move the crowd, the officers are taught that they step one foot forward. They say `back' if they can, if they can get their air in and they push.

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6 practice notes
  • Fils v. City of Aventura, Case No. 05–CIV–22308.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • August 23, 2010
    ...by assuming their disbursal orders are heard and understood by those in the affected area. See, e.g., Owaki v. City of Miami, 491 F.Supp.2d 1140, 1154 (S.D.Fla.2007) (finding probable cause to arrest protester for ignoring a police order to disburse under § 843.02, despite protester's testi......
  • American Fed. of Labor-Congress v. City of Miami, Case No. 07-22966-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 2, 2009
    ...is not liable as a matter of law . . . This high standard of proof is intentionally onerous for plaintiffs." Owaki v. City of Miami, 491 F.Supp.2d 1140, 1158-59 (S.D.Fla.2007) (citing Gold, 151 F.3d at Plaintiffs allege that the City was put on notice of a need to train or supervise in the ......
  • Frederick v. Brown, CV 113-176
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • August 10, 2015
    ...a First Amendment claim, even if he was exercising his First Amendment rights at the time he was arrested." Owaki v. City of Miami, 491 F. Supp. 2d 1140, 1155 (S.D. Fla. 2007) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) ("When a police officer has probable cause......
  • Pruitt v. Gillespie, CIVIL ACTION NO. 13-00640-KD-M
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • February 3, 2015
    ...as there was probable cause to believe the defendant committed a statutory violation of some sort. See, e.g., Owaki v. City of Miami, 491 F.Supp.2d 1140, 1155 (S.D. Fla. 2007) ("Nor does Plaintiff's arrest become a violation of his constitutional rights because ultimately he was charged wit......
  • Request a trial to view additional results
6 cases
  • Fils v. City of Aventura, Case No. 05–CIV–22308.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • August 23, 2010
    ...by assuming their disbursal orders are heard and understood by those in the affected area. See, e.g., Owaki v. City of Miami, 491 F.Supp.2d 1140, 1154 (S.D.Fla.2007) (finding probable cause to arrest protester for ignoring a police order to disburse under § 843.02, despite protester's testi......
  • American Fed. of Labor-Congress v. City of Miami, Case No. 07-22966-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 2, 2009
    ...is not liable as a matter of law . . . This high standard of proof is intentionally onerous for plaintiffs." Owaki v. City of Miami, 491 F.Supp.2d 1140, 1158-59 (S.D.Fla.2007) (citing Gold, 151 F.3d at Plaintiffs allege that the City was put on notice of a need to train or supervise in the ......
  • Frederick v. Brown, CV 113-176
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • August 10, 2015
    ...a First Amendment claim, even if he was exercising his First Amendment rights at the time he was arrested." Owaki v. City of Miami, 491 F. Supp. 2d 1140, 1155 (S.D. Fla. 2007) (citing Redd v. City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998) ("When a police officer has probable cause......
  • Pruitt v. Gillespie, CIVIL ACTION NO. 13-00640-KD-M
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • February 3, 2015
    ...as there was probable cause to believe the defendant committed a statutory violation of some sort. See, e.g., Owaki v. City of Miami, 491 F.Supp.2d 1140, 1155 (S.D. Fla. 2007) ("Nor does Plaintiff's arrest become a violation of his constitutional rights because ultimately he was charged wit......
  • Request a trial to view additional results

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