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Complaint filed on behalf of Newspaper Publisher Arrested for Criticizing Key West Police
Filed December 21, 2001
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
DENNIS REEVES COOPER,
Plaintiff,
vs.
GORDON A. ("BUZ") DILLON, individually,
and in his official capacity as
Chief of Police of Key West,
Defendant.
__________________________________/
COMPLAINT
Plaintiff, DENNIS REEVES COOPER, sues Defendant, GORDON A. ("BUZ") DILLON, and states as follows:
INTRODUCTION
1. Plaintiff, (hereinafter "Plaintiff Cooper" or "Plaintiff") is a newspaper publisher in Key West. By this action, he challenges the constitutionality of Defendant (hereinafter "Dillon") Chief of Police's actions in causing Plaintiff to be arrested in retaliation for publishing truthful information critical of Defendant and the Key West Police Department.
BASIS FOR THE ACTION
2. Plaintiff seeks three kinds of relief. The first kind of relief is damages to compensate him for his illegal arrest and incarceration. The second kind of relief is to have former '112.533(3) and present '112.533(4), Fla. Stat., declared unconstitutional on their face and as applied to Plaintiff. While former §112.533(3) was previously declared unconstitutional by Chief Judge William Zloch in Hickox v. Tyre, S.D. Fla. Case No: 87-8327-CIV-ZLOCH, and other judges, it appears to have formed the basis for Plaintiff's arrest here. (Present '112.533 (4), Fla. Stat. was amended in response to Chief Judge Zloch's decision and substituted for the former '112.533(3)). A third purpose of this action is to enjoin further arrests of Plaintiff under the present or former statute.
JURISDICTION
3. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. '1343, providing for jurisdiction without regard to the amount in controversy in cases seeking redress from alleged infringement of civil rights; pursuant to 28 U.S.C. ' 1331, providing for jurisdiction in cases arising under the Constitution and laws of the United States; and pursuant to 28 U.S.C. ''2201 and 2202, providing for declaratory and injunctive relief. This case arises under the First, Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. '1983, creating a federal cause of action for violations of these civil rights.
PARTIES
4. Plaintiff, DENNIS REEVES COOPER, is an individual and a citizen of Monroe County, Florida. He is the editor and publisher of a Key West weekly newspaper. The paper has been in continuous operation for more than eight (8) years and specializes in investigative journalism. Key West The Newspaper, has printed various articles critical of the Key West Police Department generally, and its chief, GORDON A. ("BUZ") DILLON, in particular.
5. Defendant, GORDON A. ("BUZ") DILLON, is an individual, the Chief of Police of Key West, Florida, and a citizen of Monroe County, Florida. As Chief of Police he is responsible for enforcing the provisions of '112.533, Fla. Stat. as it pertains to complaints against Key West police officers. He is sued both individually and in his official capacity. Defendant Dillon is a final policy maker for law enforcement matters in the City of Key West and at all times material hereto acted under color of state law.
GENERAL ALLEGATIONS COMMON TO ALL COUNTS
6. After investigation and an interview with first-hand sources, Plaintiff wrote that a police officer in Defendant's department was under investigation by the local State Attorney. The allegation was that the police officer had lied under oath in a misdemeanor criminal court case. Prior to publishing the story, Plaintiff contacted the Key West Police Department which refused comment.
7. Plaintiff, three (3) weeks later, after further investigation, reported that the misdemeanor criminal defendant had initiated an internal affairs inquiry which had been closed as "unfounded" after little or no investigation. Prior to publishing this story, Plaintiff had reviewed public record documents from the closed investigation file and met with the internal affairs investigator from the Defendants' police department, who refused comment.
8. Subsequent investigation by Plaintiff confirmed that Defendant's police officer had, in fact, lied under oath and Plaintiff also reported that in the newspaper. This research also confirmed that the investigator had not investigated and that the investigation should not have been determined to be "unfounded." Plaintiff also determined and reported that the investigator had falsified both the substance of his investigation and the results of the criminal case in a report to the Florida Department of Law Enforcement ("FDLE").
9. Determining that no remedial action was forthcoming, on May 29, 2001 Plaintiff forwarded the results of his investigation to the FDLE which opened its own file, requested information from the Defendant, and gave him forty-five (45) days to respond. FDLE, in a letter addressed to Plaintiff, as publisher of the paper, notified him that they had requested information from the Defendant.
10. On June 15, 2001, Plaintiff truthfully reported, in his paper, that he had filed a complaint about the perjury and falsification with the FDLE and it was requiring a response from Defendant. The following week Plaintiff published a "Commentary" critical of Defendant for not curtailing known perjury or false official statements by his officers. Plaintiff also urged full disclosure to the FDLE.
11. On the same day that the commentary was published, Defendant personally swore an arrest affidavit and obtained a warrant against Plaintiff before a Key West judge.
12. Defendant's affidavit was knowingly false and incorrect.
13. The warrant charged Defendant with violation of §112.533(3), Fla. Stat. (hereinafter referred to as "sub-paragraph (3)" or "§112.533(3)"), which now has no criminal import.
14. Defendant apparently intended to invoke the former sub-paragraph (3), which had been declared unconstitutional more than ten years prior and had been subsequently repealed. Plaintiff learned of the warrant before it was served, because the fact of the warrant was reported by on the radio and was the subject of a police department press release.
15. Plaintiff voluntarily turned himself in, was handcuffed, and was transported to the county jail. He was searched, booked, fingerprinted, and placed in a cell, where he remained for three (3) hours. He was subsequently released on his own recognizance.
16. Two weeks after his arrest, the State Attorney declined to file charges because the statute had been declared unconstitutional and repealed.
17. Neither Plaintiff Cooper nor his articles claimed that the sources for the newspaper stories came from the Key West Police Department or any other agency=s internal investigation.
18. All of Plaintiff's reporting was based upon truthful information from sources independent of the FDLE inquiry or any other investigation. Plaintiff Cooper, at the time of his reporting, had no knowledge that Defendant Dillon had begun any corrective action or investigation.
19. Nevertheless, Defendant Dillon willfully, maliciously and in retaliation for Plaintiff's exercise of his First Amendment rights, authored an arrest affidavit under oath and caused the issuance of an arrest warrant for Plaintiff for violating former '112.533(3).
20. Current '112.533(3), Fla. Stat., in force at the time of Plaintiff's arrest, provides in its entirety:
A law enforcement officer or correctional officer has the right to review his or her official personnel file at any reasonable time under the supervision of the designated records custodian. A law enforcement officer or correctional officer may attach to the file a concise statement in response to any items included in the file identified by the officer as derogatory, and copies of such items must be made available to the officer.
21. The above-cited statute was is not capable of violation by Plaintiff nor does it provide for arrest or incarceration.
22. Defendant incorrectly relied on the former statute '112.533(3) paragraph, which had been repealed, which provides in its entirety:
Any person who willfully discloses, or permits to be disclosed, his intention to file a complaint, the existence or contents of a complaint which has been filed with an agency or any documents, action, or proceeding in connection with a confidential preliminary investigation of an agency, before such complaint, document, action, or proceeding becomes public record as provided herein shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(Emphasis added.)
23. In applying for that arrest warrant, Defendant Dillon used language indicating that he was tracking the language of former '112.533(3), Fla. Stat. For example, the former statute made it a crime to publicize one's filing or intent to file a complaint about a law enforcement officer with an agency, regardless of the source of the information, which agency, or whether such investigation was internal to that agency.
24. In applying for that arrest warrant, Defendant Dillon knew or should have known that former '112.533(3), Fla. Stat. had been repealed and that current '112.533(3), Fla. Stat. had been amended to delete any criminal penalties (in other words, violating current '112.533(3) was not a crime). In either event, reliance on either the former or current '112.533(3), Fla. Stat. was objectively unreasonable, since the former had been repealed because it was unconstitutional on its face and because the current one is not a crime.
25. Even if Defendant erroneously cited the former, repealed statute, and intended to charge Plaintiff with violating the successor statute, '112.533(4), Fla. Stat., that statute is unconstitutional for the same reasons as the repealed statute; i.e., it unconstitutionally criminalizes the publication of truthful speech and press.
26. Further, even if Dillon=s reference to '112.533(3) were a reasonable mistake, which Plaintiff disputes, the factual allegations in the affidavit do not even make out a violation of the present ' 112.533 (4), Fla. Stat., which provides:
Any person who is a participant in an internal investigation, including the complainant, the subject of the investigation, the investigator conducting the investigation, and any witnesses in the investigation, who willfully discloses any information obtained pursuant to the agency's investigation, including, but not limited to, the identity of the officer under investigation, the nature of the questions asked, information revealed, or documents furnished in connection with a confidential internal investigation of an agency, before such complaint, document, action, or proceeding becomes a public record as provided in this section commits a misdemeanor of the first degree, punishable as provided in ''775.082 and 775.083. Y.Additionally, a sheriff, police chief, or other head of a law enforcement agency, or his or her designee, is not precluded by this section from acknowledging the existence of a complaint and the fact that an investigation is underway.
(Emphasis added.)
27. The affidavit filed in support of the arrest warrant merely alleged that Plaintiff published "the names of the accused officers" and that Plaintiff=s articles "further outline specific events that could substantially jeopardize the success and completion of the active investigation." It did not allege that Plaintiff "willfully disclose[d] any information obtained pursuant to the agency's investigation," as required by present '112.533 (4), Fla. Stat. In fact, none of the information published by Plaintiff was obtained pursuant to the FDLE investigation. Further, the FDLE action was not an "internal investigation" within the meaning of either the former or present statute because it was not internal to the Key West Police Department.
28. Notwithstanding these obvious deficiencies and errors, and lack of probable cause, on June 22, 2001, a local judge issued an arrest warrant.
29. This former and present statutory provisions of the above-cited Fla. Stat. §112.533 are unconstitutional on their face.
30. Plaintiff intends to file complaints with and against the Defendant, GORDON A. ("BUZ") DILLON, concerning the Key West Police Department officers, including Dillon, who abuse their authority.
31. Plaintiff desires to speak and publish articles about those complaints, but cannot do so out of fear of prosecution for violating '112.533(4), Fla. Stat.
32. Defendant, GORDON A. ("BUZ") DILLON, has publicly announced that he may seek the arrest and may prosecute individuals who violate similar confidentiality provisions of Florida law (i.e. '112.317(6), Fla. Stat.). Defendant has stated in public that "if he [Cooper] does it again, "I'll arrest him again," or words to that close effect.
33. As described below, the acts and omissions of Defendant, including his agents, subordinates and employees acting in their official capacities were under color of state law and have deprived plaintiff of his First, Fourth and Fourteenth Amendment rights, including his right to speak and write publicly about important issues, his freedom to petition the government for redress of grievances, and his right to be free from unreasonable arrests not supported by probable cause.
34. Defendant caused a press release to be prepared and disseminated to various media including countywide radio. Plaintiff learned of his impending arrest because of its broadcast on the radio. It is not normal procedure to publicize arrest warrants prior to arrest. By learning of an impending arrest before its occurrence, a suspect can flee to avoid arrest and incarceration. Defendant had previously assured the magistrate judge who signed the warrant that he would notify Plaintiff, but instead intentionally failed to notify him. Plaintiff maintains 24-hour telephone voice mail and facsimile receiving capability. No calls regarding his arrest were received. Upon information and belief, Defendant also later appeared on the radio seeking to justify his illegal arrest by demeaning and ridiculing Plaintiff.
35. By reason of Defendant's activities, as further described herein, Plaintiff has been damaged in an amount far in excess of nominal damages.
36. Plaintiff has no plain, adequate or complete remedy at law to redress the wrongs herein alleged. Plaintiff is now suffering and will continue to suffer irreparable injury from Defendant's acts, policies and practices unless he is granted the relief prayed for herein.
37. Plaintiff has met all conditions precedent to the filing of this action.
COUNT I- FREEDOM OF SPEECH
38. Plaintiff realleges Paragraphs 1-37 as if set forth fully herein.
39. Defendant's actions violated Plaintiff's right to free speech under the First Amendment to the United States Constitution.
COUNT II- FREEDOM OF THE PRESS
40. Plaintiff realleges Paragraphs 1-37 as if set forth fully herein.
41. Defendant's actions violated Plaintiff's right to freedom of the press under the First Amendment to the United States Constitution.
COUNT III- FREEDOM FROM UNREASONABLE SEIZURE
42. Plaintiff realleges Paragraphs 1-37 as if set forth fully herein.
43. Defendant's actions violated Plaintiff's right to freedom from unreasonable seizure under the Fourth Amendment to the United States Constitution.
COUNT IV- ARBITRARY GOVERNMENT MISCONDUCT IN VIOLATION OF EQUAL PROTECTION
44. Plaintiff realleges Paragraphs 1-37 as if set forth fully herein.
45. Defendant's actions were arbitrary and capricious and violated Plaintiff's right to equal protection under the Fourteenth Amendment to the United States Constitution.
DEMAND FOR JURY TRIAL
46. Plaintiff demands trial by jury on all issues so triable.
DEMAND FOR RELIEF
WHEREFORE, Plaintiff respectfully requests this Court:
(a) Declare that former '112.533(3), Fla. Stat. is unconstitutional on its face;
(b) Declare that present '112.533(4), Fla. Stat. is unconstitutional on its face and as applied to Defendant;
(c) Enter a preliminary and/or permanent injunction against Defendant, prohibiting Defendant and his agents, subordinates and employees from enforcing former '112.533(3) and current '112.533 (4) Fla. Stat.;
(d) Award compensatory damages to Plaintiff against Defendant, in his official and individual capacity;
(e) Award punitive damages to Plaintiff against Defendant in his individual capacity;
(f) award Plaintiff his costs and reasonable attorneys' fees; and;
(g) Award such other and further relief which may be proper and to which Plaintiff is entitled.
Respectfully submitted,
222 Lakeview Ave.
Suite 1630, Esperante'
West Palm Beach, FL 33401
(561) 659-2029
(561) 655-1357 (facsimile)
Florida Bar No. 229466
801 Whitehead Street
Key West, FL 33040
(305) 296-5297 (office)
(305) 296-5254 (facsimile)
Florida Bar No. 906565
Cooperating
Attorneys for the
ACLU Foundation of Florida, Inc.
Legal Director
ACLU Foundation of Florida, Inc.
4500 Biscayne Blvd., Ste. 340
Miami, FL 33137-3227
(305) 576-2337 (office)
(305) 576-1106 (facsimile)
Florida Bar No. 0181765
