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Cuesta v. School Board of Miami-Dade County
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
LILIANA CUESTA, Plaintiff,
vs.
THE SCHOOL BOARD OF MIAMI DADE COUNTY; MICHAEL ALEXANDER, individually, and MIAMI DADE COUNTY,
Defendants.
COMPLAINT FOR DECLARATORY RELIEF AND FOR DAMAGES
Plaintiff sues Defendants and avers as follows:
1. This is a civil rights lawsuit by a person who was associated with the Killian 9's satirical, political, and creative publication "The First Amendment," for which association she was unconstitutionally arrested and strip searched.
2. The arrest was made pursuant to official policy of the Miami Dade County School Board and violated the rights of plaintiff under the First, Fourth and Fourteenth amendments to the U.S. Constitution. The strip search was made pursuant to official policy of Miami Dade County's Department of Corrections and violated the Fourth Amendment.
Cause of Action and Jurisdiction
3. This action arises under the First, Fourth, and Fourteenth Amendments to the United States Constitution and Title 42 U.S.C. Section 1983 and 1988. Jurisdiction is conferred on this court by Title 28 U.S.C. Section 1331 and 1343 (3) and (4).
Parties
4. Plaintiff Liliana Cuesta was a student at Killian Senior High School and a contributor to the "First Amendment" at the time she was unlawfully arrested by Defendant Alexander.
5. At the time of the actions that give rise to filing of this complaint, Defendant Michael Alexander was an officer of the Miami Dade County Schools Police Department. In that capacity, he arrested plaintiff and charged her with violating Fla. Stat . 836.11, a facially unconstitutional statute. At all material times, he was acting under color of state law and pursuant to the policies and practices of the Dade County School Board.
6. Defendant School Board of Miami Dade County, Florida is responsible for the management, control, operation, administration, and supervision of all public schools in Dade County, Florida including Killian High. Its official policy mandates or encourages referring a student for arrest whenever a crime is thought to have been committed on school property. Defendant Alexander arrested Plaintiff pursuant to such policy.
7. Defendant Miami Dade County is the municipal entity under Florida law that owns and/or operates the Dade County Department of Corrections [DOG] and its pretrial detention facilities, including Turner Guilford Knight [TGK]. Pursuant to official policy of the DOG, plaintiff Cuesta was strip searched upon booking into TGK Detention Center because she had been arrested for an alleged felony. There was no particularized suspicion that a search of her nude person and bodily cavities was required for purposes of jail security.
Statement of Facts
8. In February of 1998, the Killian 9 wrote poems, sketches essays and cartoons, including satirical writings and lampoons of authority figures for inclusion in "The First Amendment." The pamphlet was published anonymously, without attribution of any item or entry to any individual.
9. On Friday, February 20, 1998, some of the Killian 9 distributed copies of that year's edition of "The First Amendment" to other students at Killian Senior High School.
10. Principal Timothy Dawson also received a copy of the pamphlet and in the words of the police incident report "conducted an investigation." He set out to ascertain the identities of all student contributors to that year's pamphlet.
11. Mr. Dawson, pursuant to Dade County School Board Rule 6Gx13SD1.08 at pp. 912, " refer rred] criminal acts to the Dade County Public Schools Police and the local police agency for appropriate legal action." He summoned both Dade County Schools Police and Miami Dade County police officers to his office.
12. He instructed Dade County Schools Police to remove the students, one by one, from their classrooms, and to bring them to his office. He confronted each with the pamphlet, demanded to know the extent of that student's involvement in its publication, and threatened each with arrest by school police in the event the student failed to confess.
13. During interrogation, each of the Killian 9 wrote a statement detailing his/her involvement in the pamphlet. Defendant Alexander, acting pursuant to the direction or encouragement of Mr. Dawson, arrested the students, read them Miranda rights, took further statements, and arranged for their transport to jail. The minor children were taken to Miami Dade County Juvenile Detention Center. The 18 yearolds were incarcerated at TGK jail.
14. Plaintiff and the other students were charged with a misdemeanor violation of Fla. Stat. 836.11, which prohibits anonymous publication if it "tends to expose any individual or religious group to hatred, contempt, ridicule or obloquy." To elevate that alleged offense to a felony charge permitting warrantless arrest, Defendant Alexander enhanced each charge under Fla. Stat. 775.085, Florida's "hate crime" statute, which prohibits committing an offense in a manner evidencing racial or other prejudice. The Offense Incident Reports and Complaint/Arrest Affidavits filed by Defendant Alexander identify Timothy Dawson as the victim of the alleged offenses.
15. All criminal charges against Plaintiff and other members of the Killian 9 were dismissed by the Dade State Attorney ' s Office. In dismissing, the State Attorney's Office issued a public statement acknowledging that the statute under which the students were arrested is unconstitutional and unenforceable.
CLAIMS FOR RELIEF
Count I: First Amendment Violations
[Defendants: Alexander and the Dade County School Board]
16. Defendant Alexander violated Plaintiff's First Amendment rights of Free Speech and Free Press in arresting her under a facially invalid statute, Fla. Stat . 836.11, that purports to prohibit contemptuous anonymous pamphleteering against individuals and religious organizations. Anonymous pamphleteering has a long and honorable tradition in America predating the founding of the Republic and is protected by the First Amendment.
17. Writing that "tends to expose any individual or religious group to hatred, contempt, ridicule or obloquy" is essential to political satire and other forms of criticism and lies at the core of what is protected by the First Amendment. A statute purporting to criminalize such writing is facially invalid for overbreadth.
18. That Fla. Stat. 836.11 violated the First Amendment was clearly established law of which a reasonable law enforcement officer would have known. Anonymous pamphlets were declared to be protected by the First Amendment in McIntvre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) and prior cases. Laws criminalizing abusive or contemptuous speech were stricken in Lewis v. City of New Orleans, 408 U.S. 913 (1972) and 415 U.S. 130 (1974) [Lewis II] and Houston v. Hill, 482 U.S. 451 (1987). Further, Fla. Stat. 836.11 was enacted in 1945; but not a single conviction appears in the Southern Reporter. Alexander's arrest of Plaintiff was objectively unreasonable.
19. In violating Plaintiff's rights under the First Amendment to the United States Constitution, Defendants directly and proximately caused Plaintiff to suffer unlawful arrest, detention, search of her person, anguish, embarrassment and humiliation.
Count II: Fourth Amendment ViolationsUnlawful Arrest
[Defendants Alexander and Dade County School Board]
20. Plaintiff repeats the averments of 115 above.
21. Defendants violated the Fourth Amendment right of Plaintiff to be free of unlawful seizure of the person in arresting her without probable cause to believe that a valid complaint of crime had been lodged by Mr. Dawson. But for application of the facially invalid Fla. Stat. 836.11, Defendant could not have arrested Plaintiff.
22. That there can be no probable cause to arrest for a nonexistent crime was clearly established law of which a reasonable law enforcement officer would have known. That the reported crime was nonexistent follows from the fact that Fla. Stat. 836.11 is unconstitutional for the reasons stated above in 1618, which are here incorporated by reference. Alexander's arrest of Plaintiff was objectively unreasonable.
23. Irrespective of whether a reasonable law enforcement officer could have concluded that Fla. Stat. 836.11 was valid, Defendant Alexander still could not have arrested Plaintiff for a misdemeanor not committed in his presence without a warrant of arrest. He "produced" putative grounds for warrantless arrest by charging the hate crimes felony enhancement of Fla. Stat. 775.085. The resulting arrest for felonylevel hate speech was also and independently objectively unreasonable, hate speech laws having been declared facially invalid in R.A.V. v. City of St. Paul , 505 U.S. 377 (1992)
24. In violating Plaintiff's rights under the Fourth Amendment to the United States Constitution, Defendants Alexander and Dade County School Board directly and proximately caused Plaintiff to suffer unlawful arrest, detention, anguish, embarrassment and humiliation.
Count III: Fourth Amendment ViolationIllegal Search of the Person
[Defendant: Miami Dade County]
25. Plaintiff repeats the averments of 115 above.
26. Upon being booked into the TGK detention facility, Plaintiff Cuesta was ordered to remove her clothing in order to permit jail personnel to examine her bodily orifices. This intrusive search was not justified by the nature of the alleged crime for which she was arrested and was not justified by probable cause or particularized suspicion that she was concealing contraband, weapons or anything threatening jail security.
27. The strip search of Plaintiff Cuesta was carried out pursuant to the established policy and practice of Miami Dade County in booking persons arrested for felonies, as stated in Memorandum #11022, March 15, 1988, issued by Kevin S. Kickey, Deputy Director, Dade County Corrections and Rehabilitation Department, p.3: "Newly arrested felons ... will be completely strip searched by a certified Correctional Officer as part of the intake procedures...." [emphasis in the original] The written policy was supported by customary practice at TGK.
28. In violating Plaintiff's rights under the Fourth Amendment to the United States Constitution, Defendant directly and proximately caused Plaintiff to suffer an unlawful search of the body, anguish, embarrassment and humiliation.
PRAYER FOR RELIEF
WHEREFORE, pursuant to the foregoing averments, Plaintiff requests the following relief:
a. Under Count I, a declaratory judgment under 28 USC Section 2201 that Fla. Stat. Section 836.11 is unconstitutional on its face and a judgment for damages against Defendant Alexander and the Miami Dade County School Board;
b. Under Count II, a judgment for compensatory damages against Defendants Alexander and the Miami Dade County School Board for unreasonable seizure of the person of Plaintiff;
c. Under Count III, a judgment against Defendant Miami Dade County awarding her compensatory damages for the unreasonable search of her body at TGK;
d. Under all counts, an award of costs including reasonable attorneys' fees pursuant to 42 USC Section1988 against each Defendant jointly and severally, or apportioned in the discretion of the court; and
e. such other relief as the Court deems proper and just.
Dated: 2/17/99
PLAINTIFF LILIANA CUESTA
Respectfully submitted,
STEVEN WISOTSKY; P.A.
3050 Jefferson St. Coconut Grove, Fl. 33133
Tel: 305-858-2436
Fax: 305-858-6336
Fla. Bar No. 130838
Ben Waxman
2250 S.W. 3rd Ave.
Miami, FL. 33129
305-858-9550
Valerie Jonas
6400 Pinetree Dr. Circle
Miami Bch, FL. 33141
305-864-8574
Of counsel:
Andrew Kayton
ACLU Legal Director
3000 Biscayne Blvd.
Miami, Fl. 33137
305-576-2337
COOPERATING ATTORNEYS FOR THE AMERICAN CIVIL LIBERTIES UNION OF FLORIDA, INC. GREATER MIAMI CHAPTER
