Home » About » Newsletters » May 1997
The Legal Docket, May 1997
First Amendment
State v. Michael Diana
Cooperating Attorneys: Legal Director Andrew H. Kayton, and George Rahdert, Pat Anderson and Amy Steele of Rahdert, Anderson, McGowan, Steele
In 1994, Michael Diana was convicted by a county court jury in Pinellas County for distribution and advertising of obscene material, for an underground cartoon and literary " zine" he published. This case is the first known instance in U.S. history of a cartoonist being incarcerated based on the content of his art. One of the conditions of his sentence allows warrantless searches of Diana's residence by his parole officer and Diana's immediate reincarceration if he is found to be in the possession of, or participating in the creation of, "drawings or writings of obscenity" (in his own home). Diana is also prohibited from having contact with any children or minors under eighteen, although he is not a convicted sex offender in this or any other case. In May 1997, the ACLU filed a petition for certiorari in the U.S. Supreme Court that maintains that Diana's conditions of probation and his conviction are unconstitutional.
Schenck v. ProChoice Network of Western New York
Cooperating Attorney: Andrew Kayton, Legal Director
This case was argued before the U.S. Supreme Court on whether an injunctioncreated "floating buffer zone" was an unconstitutional restriction on speech. The ACLU of Florida had filed an amicus brief on May 17, 1996, supporting the First Amendment rights of the antiabortion protestors and sidewalk counselors, citing inconsistencies with wellestablished First Amendment principles. On February 19, 1997 the U.S. Supreme Court agreed with the ACLU of Florida and struck down floating buffer zones as violative of the First Amendment.
Riera v. Palm Beach County School District:
Cooperating Attorney: James K. Green
Peter Riera is a 15 year old sophomore at Boca Raton High School, and the son of political refugees, one from Cuba and the other from the Soviet Union. His father bought him a beaded necklace with a Cuban flag on it while at the Calle Ocho festival in Miami. School officials then prohibited Peter from wearing his necklace while attending school on grounds that it was gang paraphernalia and displayed gangrelated colors (red, white and blue!). The Palm Beach Chapter, with James K. Green as cooperating attorney, filed suit in Palm Beach County Circuit Court on behalf of Peter in early March. The case was settled with an interim agreement prior to the injunction hearing, with Peter being permitted to return to school wearing his necklace, having his attorneys' fees paid, and the Palm Beach County School Board making a commitment to work with the ACLU to revise its dress code and gang paraphernalia policies. We are currently engaged in negotiations with the school board attorney, Cynthia Prettyman, on the contents of the final settlement.
Hoffman v. Butterworth
Cooperating Attorney: Wayne Thomas
Susan Hoffman was stopped while driving in Pasco County and charged with violating Florida's obscenity statute, based on her display of a bumper sticker which depicted a drawing of a clenched fist with middle finger extended, and the phrase "censor this!" The ACLU filed a suit in May 1996 challenging the statute as applied to her violated the First Amendment. The case was settled by entry of consent decree, which declares among other things, Florida's obscenity law, as applied to Susan Hoffman, unconstitutional, and requiring that Pasco County Sheriff pay Hoffman's attorneys' fees.
Due Process
Howlett v. Rose
Cooperating Attorneys: Enrique Escarrez and Morris Bornstein
Student Mark Howlett's automobile was searched without a warrant while parked at St. Petersburg High School. He was expelled and criminal charges brought (which were later dropped) because they found empty wine cooler bottles and a halfempty bottle of eggnog laced with whiskey. In 1990 this case went up to the U.S. Supreme Court, which held in a landmark decision (Howlett v. Rose, 110 S.Ct. 2440 (1990)), that Florida state courts could not grant sovereign immunity to a local school board in a federal civil rights action. With this issue decided, the case was returned to the circuit court. Eleven years after the initial incident, a settlement was reached in which the Pinellas County School Board agreed to insert into its "Code of Student Conduct" the following language: "Personnel of the School System shall not conduct searches of students or their property, including vehicles, that violate constitutional law".
In re: Baby
Cooperating Attorney: James Soule
George Setters is the biological father of Baby K. In 1992 Baby K was born in Dade County to Setters and his wife. Eighteen months later, the biological mother ran off with a boyfriend and Baby K. The baby subsequently ended up in HRS custody after she was beaten by the mother's boyfriend and neglected by the mother. No notice was provided to the biological father of the state custody. HRS placed the child in foster care and instituted parental termination proceedings in Dade County against both the biological mother and father and facilitated the adoption of Baby K by her foster parents. No notice of the parental termination proceedings was then provided to the biological father. HRS represented to the court that the father could not be located. In fact, his current address in Ft. Lauderdale was readily available to HRS through any number of public records and agencies, but HRS chose not find him. As just one example, Florida Power & Light formally notified HRS that it had a billing address in Ft. Lauderdale that it would provide upon subpoena. HRS never acted on that notice. The father's parental rights, along with those of the biological mother, were then terminated without notice to him. In February, the Broward Chapter voted to represent Baby K's father in his efforts to vacate the termination of his parental rights, based on concerns that his due process rights had been grossly violated. Lawyers for HRS, the father and the adoptive parents then engaged in mediation, and reached a resolution of this unfortunate situation. Under the settlement, the father's parental rights were reinstated by the court, and he agreed not to challenge the adoption of his daughter. Instead, the parties have entered into a shared custody agreement, akin to a divorce settlement, under which the adoptive parents will have primary custody of Baby K, the biological father will have scheduled visitation by his daughter, and the adoptive parents will pay for psychological counseling for the child.
Recchi America, Inc. v. Astley Hall
Cooperating Attorney: Prof. Mark Brown, Stetson University Law School
Hall was a construction worker at Recchi America Inc., which has a drugfree workplace program. Three weeks after being employed by Recchi America, a coworker tripped and jabbed a steel screed into the back of Hall's head. Hall was taken to the Workers' Compensation Medical Center, where he was medically attended to and provided a urine sample which tested positive for marijuana. As a result, a compensation claims judge denied Hall's Workers Compensation claims. As part of the state Workers Comp scheme, Fla. Stat. 440.09(3) provides that, when there is a drugfree workplace program, a positive drug test creates an irrebuttable presumption that a workplace injury was caused primarily by the influence of the drug. Under 440.09(3), Hall was barred from disproving that his injury was caused by use of marijuana. The ACLU filed an amicus brief in support of Hall, and in March 1997, the Florida Supreme Court agreed with the ACLU and held that 440.09(3)'s irrebuttable presumption violated due process rights under the state constitution.
Privacy
McIver v. Krisher
Cooperating Attorney: Robert Rivas
In the last issue of The Torch we reported this challenge to Florida's prohibition on assisted suicide had gone to trial. The decision came down firmly in favor of the plaintiff, holding that the prohibition on assisted suicide violated the Florida right of privacy, as applied to Mr. Hall, and that Mr. Hall had the right to choose the time and manner of his death with the assistance of his physician. However, the State Attorney has appealed the decision, and because of the time sensitivity of the matter, it was taken on an expedited basis by the Florida Supreme Court without first moving through the state court of appeal. Oral arguments were heard on May 8, 1997. To review the decision entered in the lower court on this matter, see our Web Page at http://www.aclufl.org.
Equal Protection
Washington v. Vogel
Cooperating Attorneys: Charles Burr, Tulane University Law Prof. Terry Allbritton, and James K. Green
On January 7, 1997 the U.S. Court of Appeals for the Eleventh Circuit affirmed the lower court's dismissal of the complaint we had filed on behalf of Selena Washington. The complaint was dismissed because, although testimony was given that the stop was part of a racebased courier profile used by the Volusia County Sheriff's, there was another reason to stop the vehicle (she was allegedly driving seven miles over the speed limit). Ms. Washington had been traveling through Volusia County after Hurricane Hugo which had destroyed her home in North Carolina. She was headed to Florida to purchase materials to repair her home when she was stopped by the police. They searched her vehicle and found $19,000 in cash. They presumed the money was drugrelated and confiscated it pursuant to civil drug forfeiture laws. The Court ruled that Fourth Amendment scrutiny of traffic stops requires only a determination that the stop was supported by probable cause to believe a traffic infraction had occurred and did not depend on the actual motivations of the individual officers involved. Another right diminished in the war on drugs.
Search and Seizure
Casimir v. City of Miami Beach
Cooperating Attorney: Charles Baron
Represented by the Greater Miami Chapter, Marcel Casimir sued the City of Miami Beach and several of its police officers in 1995 following his arrest for sale and possession of cocaine. The criminal charges were nolle prossed, but Casimir spent four months and nine days in Dade County jail, and lost his job as a security guard and all of his personal possessions. Casimir alleged violations of his Fourth and Fifth Amendment rights, claiming he had never been in possession of cocaine and that police officers lacked probable cause to believe that he had committed any crime. The case went to trial in February in U.S. District Court in Miami, but the jury found the defendants not liable.
Cruel and Unusual Punishment
LaMarca v. Turner
Cooperating Attorneys: David Lipman, William Amlong, Maria Kate Northrup and Florida Rural Legal Services, Inc.
This action was filed fourteen years ago on behalf of inmates at Glades Correctional Institution in Belle Glade. This was not the usual inmate suit. GCI was the scene of an inordinate number of brutal sexual assaults systematically ignored by prison officials. Plaintiffs were reportedly raped in the dorms, in the bathrooms, in the shower area, at unsupervised showings of hardcore sex films, even when in protective solitary confinement and in one instance allegedly with a baseball bat on the recreation field. Victims were refused medical attention and protection. Prison staff looked the other way. One inmate asked a guard for protection and was given a knife. At trial, the district court awarded significant damages (to inmates serving hard time) that were later overturned on appeal. On retrial before a jury, some of the plaintiffs were again awarded damages. Recently the U.S. Court of Appeals for the Eleventh Circuit upheld these jury damages awards.
