Home » About » Newsletters » November 1996
Legal Docket
Compiled by Legal Assistant Toni Leeman, November 1996
Updated Quarterly
Due Process
Baal v. State of Florida
Cooperating Attorney: Enrique Escarraz
This St. Petersburg ordinance for trespassing in a city park between dusk and dawn has been batted back and forth, proclaimed constitutional and enforceable; then reversed and declared unconstitutionally vague; and now again found valid. Our client was convicted of violating this ordinance while looking for his dog in North Shore park around 1 a.m. One element of our argument centered around the fact that persons who play tennis, jog or push baby strollers in earlier evening hours have never been charged with violating this ordinance, and that it was being selectively enforced. Appellate division circuit court Judge W. Douglas Baird agreed, and found "the Ordinance invites arbitrary and discriminatory enforcement; therefore, it is unconstitutional." The assistant city attorney appealed that decision to the Second District Court of Appeal. Lobbed back across the fence again, the decision was recently reversed, the court of appeal holding that the ordinance is not unconstitutionally vague and therefore enforceable.
McFadden v. City of West Palm Beach
Cooperating Attorney: Barbara A. Heyer
During a Palm Beach prostitution sting operation gone awry, Mr. McFadden found himself directly in the path of a fleeing hooker. He saw the commotion from inside his car and thought it best to just drive out of the area. He started his car, but before he was able to put it in gear, the pursuing undercover police officer, shot him in his stomach. Fearing for his life and not knowing they were undercover officers, Mr. McFadden drove off, unfortunately down a deadend street. In manic fear he fled on foot until he collapsed from his bullet wound. The undercover officer then arrested Mr. McFadden for assault on a police officer, claiming that McFadden was trying to hit him with his car. That charge, along with reckless driving, fleeing or eluding a police officer and two counts of culpable negligence were later dismissed. Suit was filed on June 20, 1996 in U.S. District Court by our Palm Beach chapter for violations of due process, excessive force, unlawful search and seizure.
Sansbury v. City of Orlando
Cooperating Attorney: Robert Smith and Howard Marks
The trial court granted summary judgment against us in this case challenging the Orlando juvenile curfew, covering a twelvesquare block tourist area in the downtown city. Earlier in the case the court denied a motion to temporarily enjoin enforcement of the curfew. At that time, the court reasoned that the curfew was constitutional largely because it was much narrower in scope than the countywide curfew that had then recently been struck down in Dade County (at that point, the Dade curfew had been found unconstitutional in the ACLU challenge undertaken in Miami in Pred v. Dade County). When earlier this year, in the Pred case, the Court of Appeal in Miami upheld the more draconian Dade County curfew and cited the Orlando curfew decision as precedent, the Orlando curfew challenge essentially became unwinnable, and this recent judgment in this case was expected. A new case is being considered by the Central Florida chapter that may challenge the application by police of Orlando curfew restrictions to a woman over the age of 40 who was detained when she refused to produce identification to police officers.
First Amendment
Krzeminski v. HRS
Cooperating Attorneys: Walter E. Forehand and Florida State University Law School Prof. Steven Gey
This case nominally addressed whether Medicaid benefits could be withheld or discontinued by HRS because of a failure to provide social security numbers to the agency on religious grounds. Mr. Krzeminski had objected to furnishing this information based on his sincerely held religious beliefs. As a result of benefit suspension, one of his sons committed suicide after running out of the medication. One of the underlying bases for our claims is that HRS violated the Religious Restoration Freedom Act ("RFRA"). The State of Florida, in defending this suit, is now claiming that RFRA is unconstitutional and that Congress has exceeded its constitutional authority in enacting RFRA. Since the U.S. Supreme Court in 1990 significantly narrowed the scope of claims that can be brought under the Free Exercise Clause of the First Amendment, RFRA has become the statutory proxy of what used to be claims of constitutional dimension. A determination of RFRA's constitutionality in this federal circuit could potentially have a widespread impact on the religious liberties of millions of citizens.
Smithers v. Florida Elections Commission
Cooperating Attorney: Larry Helm Spalding and Richard Johnson
We filed suit in state circuit court against the Florida Elections Commission in this case involving the Commission's harassment of two individuals who displayed a bumper sticker on their car which stated "DUMP PRUITT" (their state representative). Under a current Florida statute, such a bumper sticker is a political advertisement and must visibly identify the source of funding for the advertisement. Our clients have been subjected to investigation by the FEC and the threat of prosecution for violating the state statute. We brought an action seeking a declaration that the state statute is unconstitutional and to enjoin any prosecution of our clients.
United Farm Workers V. Quincy Farms
Cooperating Attorneys: James K. Green, Sarah Cleveland and Rob Williams
On September 20, 1996 an injunction against the UFW was quashed by the Florida First District Court of Appeal. Quincy Farms is the largest employer in Gadsden County. The company had refused to engage in collective bargaining with the union members. Some United Farm Workers Union members picketed the entrance to the farm. A circuit court granted an injunction to Quincy Farms which severely and improperly restricted the union's picketing and protest activities. It set a limit of eight pickets, barred union members from congregating within 50 feet of the entrance to company property, and was obtained in clear violation of the Florida Rules of Civil Procedure. In striking down the injunction, the Court of Appeal stated in part "There is a place in our jurisprudence, for ... temporary restraining orders...; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and give them an opportunity to participate."
Police Misconduct
Washington v. Vogel
Cooperating Attorneys: Charles Burr, James K. Green and Tulane Univ. Professor of Law Terry Albritton
This case was argued on September 16 before the U.S. Court of Appeals for the Eleventh Circuit in Atlanta. In the trial court, we alleged and proved that Volusia County Sheriff Robert Vogel had instituted a practice of targeting AfricanAmerican and Hispanic motorists on I95 for stops and vehicle searches. In many instances, the Sheriff's Department would then seize and retain cash and other property under the pretext of civil drug forfeiture laws, with no evidence of criminal wrongdoing and no filing of criminal charges against the motorists. The Sheriff built up a multimillion dollar slush fund through these practices, and has actually been cited in the Congressional Record by conservative Republican members of Congress as an example of someone who has grossly misused civil forfeiture laws. The district court granted a directed verdict for the Sheriff without allowing jury deliberations. Our argument before the Eleventh Circuit indicated some serious concerns about Sheriff Vogel's innovative abuse of civil forfeiture laws.
Right to Privacy
McIver v. Krischer
Cooperating Attorneys: Robert Rivas and Florence Snyder Rivas
This case challenges the constitutionality of Florida's criminal prohibition on assisted suicide and is scheduled to go to trial later this month in West Palm Beach. Much of the defense is based on a slew of rightwing medical and philosophical "experts" from across the country. The ACLU of Florida's case, because it is proceeding in part on the basis of a right of privacy claim under the state constitution, may have great significance now that the U.S. Supreme Court has accepted for review two other righttodie cases. Those decisions found, for different reasons, that assisted suicide laws in Washington and New York were unconstitutional under the U.S. Constitution. If the U.S. Supreme Court were to reverse those holdings in 1997, we still will have a viable challenge under the Florida Constitution.
Search and Seizure
Merrett v. Moore
Cooperating Attorney: Edward Stafman
On October 8, the U.S. Supreme Court denied our petition for a writ of certiorari, bringing to end a case litigated by a devoted ACLU cooperating attorney for nearly thirteen years. This case began as a challenge to large scale police roadblocks that occurred in North Florida in 1984. In an effort to enforce narcotics law, nearly 1500 vehicles were stopped by police and sniffed for drugs by police canines under the feeble pretext of checking drivers' licenses and vehicle registrations. There were traffic delays of 30-45 minutes, and a grand total of one drugrelated misdemeanor arrest. The Federal District Court and the Eleventh Circuit upheld the roadblocks as constitutional, even though no other court in the nation has upheld these types of roadblocks. When the Eleventh Circuit denied our motion for review of this decision en banc, three judges issued a scathing dissent pointing out both the unprecedented nature of the court's decision and its complete failure to acknowledge that its decision conflicted with holdings of other federal courts. We can view this case as a prime example of the war on drugs' erosion of civil liberties.
