LTC 280-2019 Florida Carry, Inc. Michael Taylor, Steven Jenkins, Sean Devine, Christopher Philpot, Carlos Gutierrez and Jonah Weiss vs. City of Miami Beach, Jimmy L. Morales, Dan Oates MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
LTC No. _ 280-2019
LETTER TO COMMISSION
TO: Mayor Dan Gelber
Members of the City Commission
FROM: Raul J. Aguila, City Attornee '
DATE: May 10, 2019
SUBJECT: Florida Carry, Inc., Michael Taylor, Steven Jenkins, Sean Devine, Christopher
Philpot, Carlos Gutierrez, and Jonah Weiss vs. City of Miami Beach, Jimmy L.
Morales, Dan Oates, and Twelve (12) Miami Beach Police Department Officers.
11th Judicial Circuit Court Case No.: 2019-09499 CA 02
The purpose of this Letter to Commission is to provide formal notification to the Mayor and City
Commission that the above-subject lawsuit has been served upon the City of Miami Beach, the
City Manager and the Chief of Police on May 8, 2019. Furthermore, the Complaint has named
twelve (12) Miami Beach police officers as Defendants in the lawsuit, and it is anticipated that
these police officers will be served with the Summons and Complaint within the next several days.
A copy of the Complaint is attached for your convenience.
The allegations of the lawsuit stem directly from an encounter between the City's police officers
and the Plaintiffs (who are members of, or associated with, Florida Carry, Inc.), during which
Plaintiffs were openly carrying firearms and weapons at South Pointe Park Pier, while allegedly
engaged in a fishing expedition. The City Attorney's Office will be thoroughly reviewing those
allegations set forth and identified within the lawsuit, and will be providing the Mayor and City
Commission with further detailed information surrounding the merits of this matter.
In that regard, please be advised that the circumstances surrounding this event received
significant media attention (locally and nationally) at the time the incident transpired, and it is
anticipated that this lawsuit may generate further media attention. The City Attorney's Office
hereby recommends that no further statement(s) be issued on the subject lawsuit, and that any
request(s) for information regarding this matter should be forwarded to my office.
Please direct any further inquiries or questions regarding this matter to Aleksandr Boksner, Chief
Deputy City Attorney.
RJA/AB/sc
Filing # 87073311 E-Filed 03/27/2019 04:42:29 PM
s
IN THE CIRCUIT COURT, ELEVENTH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.:
DIV.:
FLORIDA CARRY, INC., a
Florida not for profit corporation,
MICHAEL TAYLOR, an individual,
STEVEN JENKINS, an individual,
SEAN DEVINE, an individual,
CHRISTOPHER PHILPOT, an individual,
CARLOS GUITERREZ, an individual,
JONAH WEISS, an individual,
Plaintiffs,
v.
CITY OF MIAMI BEACH,
FLORIDA,
JIMMY L. MORALES, in his official
and individual capacity,
DAN OATES, in his official
and individual capacity,
OFFICER (FNU) GARCIA, an individual
OFFICER KENNETH BOLDUC, an individual
OFFICER GUSTAVO VILLAMIL, an individual
OFFICER (FNU)RIVERA, an individual
LT. EDUARDO GARCIA, an individual
OFFICER ERROL VIDAL, an individual
OFFICER MANUEL CANO, an individual
OFFICER JESSICA SALABARRIA, an individual
OFFICER ROBERT MITCHELL, an individual
OFFICER NAHAMI BICELIS, an individual
OFFICER LAVANIEL HICKS, an individual
OFFICER ELIZABETH VIDAL, an individual.
Defendants
1
a
COMPLAINT
FLORIDA CARRY, INC., MICHAEL TAYLOR, an individual,
STEVEN JENKINS, all individual, SEAN DEVINE, an individual,
CHRISTOPHER PFIILPOT, an individual, CARLOS GUITERREZ, an individual,
JONAH WEISS, an individual by and through their undersigned attorneys, sues
CITY OF MIAMI BEACH, FLORIDA, JIMMY L. MORALES, OFFICER (FNU)
GARCIA, OFFICER KENNETH BOLDUC, OFFICER GUSTAVOVILLA.MIL,
OFFICER (FNU) RIVERA, LT. EDUARDO GARCIA, OFFICER ERROL
VIDAL, OFFICER MANUEL CANO, OFFICER JESSICA SALABARRIA,
OFFICER ROBERT MITCHELL, OFFICER NAHAMI BICELIS, OFFICER
LAVANIEL HICKS, and OFFICER ELIZABETH VIDAL Defendants, and state:
1. This is an action for damages in excess of$15,000.00, and for
declaratory and injunctive relief
2. Venue is proper in Miami-Dade County, Florida, as the acts
complained of occurred therein and all Defendants' primary places of business are
located there.
2
I
PARTIES
3. Defendant City of Miami Beach, Florida, ("Miami Beach" or "the
City") is a local governmental entity created and existing under the laws of the
state of Florida as a municipality.
4. Defendant Jimmy L. Morales, ("Morales"), is the appointed City
Manager of Miami Beach, and is the appointed chief executive officer of the City
responsible for the day to day operations, and implementation and enforcement of
Miami Beach's, policies, rules, regulations, and ordinances by employees of the
City.
5. Defendant Dan Oates, ("Oates"), is the Chief of the Miami Beach
Police Department and is responsible for day to day operations, and
implementation and enforcement of Miami Beach Police Department's policies,
rules, regulations, and ordinances by employees of the City
6. Plaintiff, Florida Carry, Inc., (".Florida Carry"), is a Florida not for
profit corporation existing under the laws of Florida.
7. Florida Carry's purpose is to advance the fundamental civil right of all
Floridians to keep and bear arms for self-defense as guaranteed by the Second
Amendment to the United States Constitution and the Constitution of Florida's
Declaration of Rights.
3
•
8. Michael Taylor, Steven Jenkins, Sean Devine, Christopher Philpot,
Carlos Guiterrez, and Jonah Weiss, (collectively "the Citizens" or "fishermen"),
are all individuals who were attending a Florida Carry sanctioned gathering on
June 24, 2018 in Miami Beach, Florida.
9. Each Officer identified is sued in his or her individual capacity.
10. Plaintiffs have identified two officers as (FNU), or First Name
Unknown, followed by the officers last name.
11. Plaintiffs have made a good faith attempt to identify the first names of
officers (FNU) Garcia and (FNU) Rivera but have been unable to do so and will
request an amendment of the case style as soon as the officers are identified
through discovery.
12. The good faith attempt to more properly identify the two officers
included an email to the Chief Deputy City Attorney for the City of Miami Beach
who refused to identify the officers after a request for their first names.
13. Officers (FNU) Garcia, Kenneth Bolduc, Gustavo Villamil, (FNU)
Rivera, Errol Vidal, Manuel Cano, Jessica Salabarria, Robert Mitchell, Nahami
Bicelis, Lavaniel Hicks, Elizabeth Vidal and Lt. Eduardo Garcia, (collectively
"Officers") were at all times material, police officers employed by the City of
Miami Beach.
4
FACTS IN COMMON
14. On June 24, 2018, at approximately 10:30 a.m., the fishermen were on
the pier at South Pointe Park in the city of Miami Beach.
15. A sign at the entrance to the South Pointe Pier promulgates a city
policy or rule prohibiting firearms on the pier.
16. Approximately three weeks prior to the events herein, Plaintiff Philpot
sent multiple emails to the Florida Fish and Wildlife Conservation Commission
(FWC) office with jurisdiction over the Miami Beach area, the City Attorney for
Miami Beach, and-to Defendant Chief Oates.
17. A timely response was received from FWC acknowledging that it was
aware of the relevant statute regarding open carry of firearms while fishing,
however no response was received from the City Attorney or Oates.
18. As a state surrounded on three sides by seawater, and inundated by
ponds and lakes, the rights of Florida fishermen to bear arms, that have existed
since before Florida was even a U.S. Territory, should be no surprise to Law
Enforcement and are undoubtedly clearly established.
19. The right to open carry while fishing in Florida has existed in its
present form and substantially unchanged since 1965.
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20. The right to bear arms while fishing has never been illegal in Florida.'
21. The right to openly carry a firearm while fishing is well established by
statutory law in Florida. Sec. 790.25(3)(h), Fla. Stat.
22. Defendant Officers knew or should have known of the existence of
Sec. 790.25(3) as it is the very statutory subsection which allows Defendant
Officers to openly cany a firearm in the performance of their duties as police
officers. Sec. 790.25(3)(d), Fla. Stat.
23. During their interactions with Plaintiffs, Defendant Officers
incorrectly relied upon the existence of the sign and the language thereon to tell the
Citizens their conduct was unlawful.
24. The sign Defendant Officers used as justification for their actions, was
null and void under the terms of Sec. 790.33, Fla. Stat.
25. The Citizens were engaged in a lawful.fishing expedition.
26. All of the Citizens, except Devine, were in possession of lawfully
carried firearms that were visible to the ordinary sight of others as permitted by
Sec. 790.25(3)(h), Fla. Stat.
27. An unknown employee of Miami Beach, who was a park ranger,
approached the six fishermen.
While a license was required to carry a Winchester Repeating Rifle after 1893,or a pistol after 1901,any other
firearm could be lawfully carried while fishing throughout the history of the State of Florida.
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28. The unknown employee of Miami Beach informed the fishermen that
they were not allowed to openly cavy firearms.
29. The fishermen informed the unknown employee of Miami Beach that
they were in compliance with the law and offered a printed copy of the applicable
statute.
30. The unknown employee of Miami Beach stated, "I don't need to see
your paper".
31. After a few minutes of otherwise polite discussion, and two phone
calls by the unknown employee of Miami Beach, the unknown employee of Miami
Beach left the area of the Citizens.
32. Moments later, four police officers of the Miami Beach Police
Department (Garcia, Bolduc, Villamil, and Rivera) approached the five fishermen
who were on the pier (Michael Taylor, Steven Jenkins, Sean Devine, Christopher
Philpot, and Carlos Guiterrez).
33. When the officers approached the fishermen, all five the fishermen
were engaged in attempting the lawful taking of fish from a state-managed water
body.
34. The four officers gave conflicting commands to the five fishermen.
35. As one officer shouted at the five fishermen to "get your hands up" he
immediately then demanded "get your hands down".
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36. The conflicting commands by the officer while pointing a loaded
firearm increased the fear of the fisherman that a failure to comply with either
command would result in being shot.
37. The officers' unlawful commands to submit to police authority
interfered with and prevented the lawful taking of fish by the Citizens in violation
of Sec. 379.105, Fla. Stat.
38. All four officers had firearms drawn.
39. Garcia, Villamil, and Rivera all pointed firearms pointed directly at
one or more of the five fishermen.
40. The senior officer on scene, Bolduc, appeared to keep his firearm at a
"low ready" position in hand rather than pointing it directly at any particular
Plaintiff.
41. The police officers then proceeded to seize and handcuff four of the
fishermen.
42. While handcuffing four of the fishermen, all five fishermen on the
pier were searched and deprived of property.
43. Immediately following the armed assault on the Citizens, more
officers began arriving at the fishing venue.
44. Eventually, approximately twenty officers would be present at the
fishing venue.
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45. At the time that the firearms were pointed at the fishermen, the
officers had no reasonable articulable suspicion that any crime had been, was
being, or was about to be committed.
46. While the first four officers were detaining and handcuffing five of
the fishermen; a sixth fisherman, Jonah Weiss, arrived at the fishing pier.
47. Weiss similarly had firearms pointed at him by officers, Garcia and
Rivera.
48. Garcia handcuffed, disarmed, and searched Weiss.
49. After being disarmed by the officers, Weiss was also detained and
required to move to the location of the other five fishermen.
50. At no time during the events complained of herein, did any of the
fisherman violate any law or regulation of the United States or the State of Florida.
51. At no time during the events complained of herein, did any of the
fishermen violate any valid ordinance of the City of Miami Beach or Miami-Dade
County.
52. After several of the Citizens were handcuffed, all six were required to
sit down.
53. At no time from the pointing of firearms at the six Citizens, until
approximately two hours and twenty-six minutes later, were the citizens free to
leave.
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54. All five-armed Citizens' firearms were seized by officers of the
Miami Beach Police Department.
55. Devine had not previously attended any meetups or events affiliated
with Florida Carry.
56. Devine owned firearms.
57. Devine was not in possession of any firearms at the time of the events
complained of herein.
58. Devine had come to the pier to fish and to learn about his rights under
Florida law.
59. Devine was uncomfortable canying a firearm openly because he was
not fully aware of his rights under Florida law.
60. Devine attended with the express purpose of learning more about his
rights.
61. Devine intended to learn more about open carry and to assemble with
likeminded individuals in an environment where he could expand his knowledge of
firearms law.
62. Devine was also present to learn more about Florida Carry and its
efforts and to determine whether he should become a member.
63. Plaintiff Devine's knife was seized by officers of the Miami Beach
Police Department.
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•
64. Officers also seized other property, including but not limited to,
lawfully carried knives, ammunition, magazines containing ammunition, and
individual Plaintiffs' concealed weapons firearms licenses.
65. The individuals in handcuffs (Taylor, Jenkins, Guiterrez, and Philpot)
remained in handcuffs for approximately one hour and eighteen minutes.
66. All of the Citizens were detained for approximately two hours and
twenty-six minutes, including the time they were handcuffed and detained while
awaiting the return of their property after the removal of handcuffs.
67. While the Citizens were detained Defendant Officers engaged in their
own fishing expedition in an attempt to justify their treatment of Plaintiffs.
68. Defendant Officers' fishing expedition was unlawful and resulted in
multiple violations of Plaintiffs' rights.
69. Senior officers on scene sent'other officers to look for, and take
pictures of, any signs prohibiting the possession of firearms on the pier.
70. While the Citizens were detained, one or more Defendant Officers
were directed by another officer to take photographs of all the Citizens' firearms,
including the serial numbers of the firearms.
71. Officers were directed by senior officers to take pictures of any
concealed weapon firearms licenses that had been seized.
72. Defendant Officers searched Plaintiffs' coolers.
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73. Defendant Officers verified each Plaintiff's fishing license.
74. Defendant Officers verified the Concealed Weapons Firearms License
for those Plaintiffs in possession of such a license.
75. The seizure of the five Plaintiffs' firearms to allow the officers to see
the serial numbers of the firearms constituted an impermissible search. See,
Arizona v. Hicks, 480 U.S. 321 (1987).
76. Defendant Officers ran the serial number of each firearm possessed by
Plaintiffs.
77. The running of each firearm's serial number constituted a search.
78. Defendant Officers access to the serial numbers of the firearms was a
result of the removal of the lawfully carried firearms from holsters.
79. The serial numbers of the firearms were not visible to the Defendant
Officers until the officers engaged in the unlawful seizure of Plaintiffs firearms.
80. Defendant Officers had no reasonable suspicion or probable cause to
believe that any of the firearms were stolen.
81. After Defendant Officers determined that there was no basis for
detention of Plaintiffs, the handcuffs were taken off the four Citizens that were
previously handcuffed.
82. Even after removal of the handcuffs and determining that that no law
had been violated, Defendant Officers continued to detain all six Citizens.
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83. The continued detention was effective because no officer indicated
that the six Citizens were free to leave.
84. Even if the individuals had been free to leave, Defendant Officers
continued to detain the property of all six Citizens.
85. After the officers had confirmed that no crime had been committed,
Weiss specifically requested the return of his firearm and was threatened by Lt.
Garcia with having his phone unlawfully seized as well.
86. After release, Defendants required that the Citizens not return to the
public fishing pier, further interfering with and preventing the lawful taking of fish
from a state-managed water body.
87. The Citizens were all required to open their vehicles, forcing them to
consent to a partial search of their vehicle under plain view doctrine, as a condition
of obtaining the return of their property.
88. All firearms were stripped of ammunition.
89. Likewise, all magazines for each Citizen's firearm were removed and
all ammunition was removed from the magazines and placed in latex gloves;
leaving the Citizens defenseless and unable to exercise their right to bear arms.
90. The Citizens were denied their right to continue fishing on the pier
and officers refused to give clear guidance as to where they could and could not
fish if they chose to remain.
13
91. Officers further intimated that if Citizens returned to fishing, they may
be disarmed and held again if a"man with a gun" complaint was made to police.
92. While he was being detained, one or more officers falsely accused
Plaintiff Taylor of being intoxicated or smelling of alcoholic beverages.
93. The statement by the officer(s) was for the purpose of continuing to
justify the fishing expedition of the Defendant Officers.
94. On or about July 6, 2018 Plaintiffs provided notice of a claim against
Defendants pursuant to Sec. 776.28, Fla. Stat.
95. Plaintiffs suffered damages during as a result of the Defendants
conduct.
96. All individual Plaintiffs suffered varying degrees of infliction of
emotional distress as a result of the Defendants' conduct.
97. The emotional distress was a result of having firearms pointed at
them, being handcuffed, being detained, being detained for an excessive period of
time, being assaulted, being battered, embarrassment of their public detention,
having their personal information being entered into police intelligence databases,
and being deprived of their basic rights as citizens.
98. All individual Plaintiffs suffered varying degrees of fear and mental
anguish as a result of having loaded firearms pointed at them and by being denied
their fundamental rights and liberty and property interests.
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99. All individual Plaintiffs were damaged by being assaulted and
battered.
100. The Citizens were subjected to warrantless searches of their property
including their coolers, vehicles, and persons.
101. The Citizens were damaged by being denied their right to assemble in
violation of the First Amendment.
102. The Citizens were damaged by being forced to consent to a plain view
search of their open vehicle as a condition for the return of their unlawfully seized
property.
103. The Citizens were damaged by being denied their right to carry a
loaded firearm for their protection due to Defendants unloading their firearms and
placing them into vehicles, and requiring the Citizens wait until Defendant Officers
departed the area before allowing the Citizens to exercise their Second Amendment
and Art. I, Sec. 8 rights, as well as their rights under Sec. 790.25, Fla. Stat.
104. Plaintiff Florida Carry was damaged by interference by Defendants
with its lawful event and the threat to its members and the associational rights of its
members.
105. According to a statement by Oates following the incident, "given the
current climate, if six people show up to a pier in South Beach carrying guns, our
•
15
citizens expect us to respond promptly and address any potential danger. We did
so and I am confident our officers acted appropriately."
106. The Mayor of Miami Beach, Dan Gelber (Gelber), similarly stated
that he "very proudly" stands behind the police officers who did "precisely what
they ought to do."
107. Gelber derisively stated, "Our court system allows any idiot to file
anything no matter how asinine. This appears to be one of those instances".
108. Gelber's statement demonstrates that he also supported and ratified
the Officers' conduct.
109. From the very outset of the detention, and weeks prior to the fishing
trip, Plaintiffs attempted to inform Defendants that Plaintiffs were acting lawfully.
110. Plaintiffs had in their possession copies of the relevant law to
demonstrate to officers that Plaintiffs had an affirmative right to engage in the very
conduct at issue.
111. Defendant Officers initially failed or refused to review the relevant
statutory law.
112. When Officers did review the law, they failed to do adequate
investigation or research to properly apply and enforce the relevant well-
established laws of Florida.
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COUNT 1- Violation of Sec. 790.33 by City of Miami Beach
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
113. The Legislature has authority to preempt the local regulation of
firearms as well as any other field not expressly reserved to local authorities. See
Art. VIII, Secs. 1(f), (1g), 2(b), Fla. Const.
114. Any contrary rule would allow Defendant City to "frustrate the ability
of the Legislature to set policies for the state." Metro. Dade Cty. v. Chase Fed.
Hous. Corp, 737 So.2d 494, 504 (Fla. 1999).
115. Miami Beach was well aware of the provisions of Sec. 790.33, Fla.
Stat., on June 24, 2018.
116. On April 2, 2018, Defendant.City of Miami Beach filed suit in Leon
County, Florida to have the provisions of 790.33, Fla. Stat. declared
unconstitutional.
117. Despite the City's and its officials express knowledge of the
provisions of Sec. 790.33 it continued to violate those provisions on June 24, 2018.
118. Defendant City specifically alleges in the suit that specifically desired
to restrict "guns in municipal-owned facilities and parks, the placing of signs
relating to guns in municipal-owned facilities and parks". (Defendant's Preemption
Suit at Para. 33; Leon County Case No.: 37-2018-CA-000699).
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119. Despite its admitted knowledge that it was without authority to restrict
firearms, or post signs restricting firearms, Defendant City did so anyway.
120. Miami Beach has a policy, whether written or unwritten, of detaining
lawfully armed citizens.
121. This policy applies regardless of whether the individual is committing
any violation of law.
122. City of Miami Beach has a policy, whether written or unwritten, of
disarming armed citizens during interactions with law enforcement without any
requisite determination of a particularized danger.
123. City of Miami Beach has a policy of prohibiting the lawful possession
of firearms on the South Pointe Pier by posting sign(s) prohibiting firearms on the
pier.
124. By his statement ratifying the conduct of the Officers, Chief Oates
indicated that the Defendant Officers acted in compliance with department policy
in detaining and disarming the fishermen on the pier, including handcuffing the
individuals for an excessive amount of time.
125. Defendant Officers in this case acted in reliance upon departmental
policy and the illegal sign(s) prohibiting the possession of firearms on the pier,
rather than statutory law, to detain the Citizens and deprive them of their legal right
to bear arms.
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126. Law-abiding citizens, whether armed or unarmed, have a
constitutional right and liberty interest not to be detained without reasonable
articulable suspicion of a crime.
127. Armed law-abiding citizens have a constitutional right not to be
deprived of their property, even temporarily, unless there is a reasonable
articulable suspicion that they are dangerous.
128. Being armed does not necessarily establish the dangerousness of the
individual for the purposes of a Terry stop. See Arizona v. Johnson, 555 U.S. 323
• (2009).
129. Miami Beach's policies of detaining and disarming armed citizens is a
violation of the citizen's constitutional rights.
130. Miami Beach's policies of detaining and disarming armed citizens is a
policy established contrary to the laws of the State of Florida regarding firearms.
.See, Mackey v. State, 124 So.39 176 (Fla..2013).
131. The City of Miami Beach has a policy of refusing to return firearms to
persons who have committed no crime except in a completely unusable condition.
132. The return of a firearm in an unloaded condition renders the firearm
worthless for purposes of self-defense.
133. Miami Beach's policies resulted in a deprivation of the individual
Plaintiffs' First Amendment right to assemble.
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134. Miami Beach's policies resulting in a deprivation of the Plaintiffs'
right of association.
135. Miami Beach's policies resulted in a deprivation of the individual
Plaintiffs' right to possess firearms pursuant to Chapter 790, Fla. Stat.
136. Miami Beach's policies resulted in a deprivation of the individual
Plaintiffs right to bear aims in defense of themselves and the lawful authority of
the state pursuant to Art. I, Sec. 8, Fla. Const.
137. Miami Beach has failed to train its officers regarding the relevant
statutory and case law regarding the lawful possession of firearms.
138. Miami Beach has failed to properly train its officers to read Florida
state statutes in order to understand the rights of citizens to openly carry firearms
while engaged in lawful fishing.
139. Defendant City has attempted to enforce a ban on the lawful
possession of firearms on the South Pointe Pier by continuing to maintain sign(s)
that prohibits lawful conduct protected by state law, in violation of Sec. 790.33.
140. Defendant Officers as agents of Defendant City enforced Defendant
City's prohibition on firearms on the South Pointe Pier in reliance upon the signage
as evidence of Defendant City's policy against possession of firearms on the South
Pointe Pier.
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141. Defendant Oates and Mayor Gelber both ratified the conduct of the
officers as being in accordance with the policies of the City of Miami Beach.
WHEREFORE, the City of Miami Beach has enacted the above set forth.
written and unwritten policies in violation of the statewide preemption for the
ownership, possession, and transportation of firearms and ammunition. Plaintiffs
request an award of damages, attorneys' fees, costs, and all other relief deemed just
and equitable. Additionally, Plaintiffs request declaratory and injunctive relief that
Defendants have violated Sec. 790.33, Fla. Stat., and prohibiting the Defendants
from maintaining any policy to detain or disarm law abiding citizens without at
least reasonable suspicion of criminal activity from regulating the possession of
firearms in any manner, and from maintaining any sign which purports to ban the
possession of firearms where it is allowed by state law.
COUNT 2- Violation of Sec. 790.33, Fla. Stat. by Jimmy Morales
Plaintiffs re-allege paragraphs 1 through 141 as if set forth in full and further
allege:
142. Jimmy Morales, the City Manager of Miami Beach, Florida, is sued in
his individual capacity, pursuant to Sec. 790.33, Fla. Stat.
143. Jimmy Morales was the City Manager during all of the events and
occurrences herein.
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144. As the City Manager, Morales was an appointed official with
authority over the Officers who detained, disarmed, and otherwise violated the
rights of the Citizens.
145. Morales as the City Manager had authority over the conduct of the
Defendant Officers.
146. The acts of the Defendant Officers were within and under the
jurisdiction of Morales.
147. Sec. 790.33(3)(c), Fla. Stat., specifically provides that an official or
officials may be fined for knowing and willful violations occurring under their
jurisdiction.
148. The violations of Sec. 790.33 herein were knowing and willful by the
individuals who committed the violations.
149. Morales was an appointed local governmental official under whose
jurisdiction the knowing and willful violations set forth in Count 2 occurred.
150. The Officers who committed the violations knew or should have
known that they were without authority to rely on any policy, rule, procedure,
ordinance or sign promulgated or published by the City of Miami Beach which in
any way impaired the rights of law-abiding citizens to bear arms in defense of
themselves or the states.
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151. The Officers knew or should have known that any signs prohibiting
the possession of firearm or ammunition on a city pier were not legally valid and
could not be relied upon.
152. The Officers knew or should have known that any city ordinance
prohibiting possession of firearms or ammunition was preempted or had been
repealed.
153. The Officers knew or should have known that the persons in
possession of firearms or ammunition while fishing were acting within their lawful
rights as citizens.
154. The Officers knew or should have known that they were without
authority to disarm or detain peacefully and lawfully armed persons acting within
their rights under state law.
155. The Officers knew or should have known that persons fishing while
openly carrying firearms were acting lawfully.
156. The Officers acted with reckless disregard in disarming lawfully
armed citizens in violation of their rights under the Florida and U.S. Constitutions.
157. The Officers recklessly disregarded the rights of the citizens to be
armed in defense of themselves and the lawful authority of the state by disarming
the Citizens and leaving them without operable firearms.
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158. The violations of the rights of law-abiding gun owners and the
violation of their right to be armed was in violation of the statewide preemption of ,
firearms laws.
159. The violations of the rights of the Citizens by the Defendant Officers
was knowing and willful.
160. The knowing and willful violations by the Defendant Officers
occurred under the jurisdiction of Morales his capacity as one of the appointed or
elected officials under whose jurisdiction the knowing and willful conduct of the
officers occurred.
WHEREFORE, Plaintiffs request a determination that the violations of Sec.
790.33 by the Defendant Officers was knowing and willful, and that said violations
occurred under the jurisdiction of Morales as an appointed local governmental
official under whose jurisdiction the violation occurred, and requests the Court
asses a civil fine against Morales in the amount of$5,000.00.
COUNT 3- Violation of Sec. 790.33, Fla. Stat. by Dan Oates
Plaintiffs re-allege paragraphs 1 through 141 as if set forth in full and further
allege:
161. Dan Oates, the Chief of Police of the Miami Beach Police
Department, is sued in his individual capacity, pursuant to Sec. 790.33, Fla. Stat.
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162. Dan Oates was the Chief of Police of the Miami Beach Police during
all the events and occurrences herein.
163. As the Chief of Police, Oates was an appointed official with authority
over the Officers who detained, disarmed, and otherwise violated the rights of the
Citizens.
164. Sec. 790.33(3)(c), Fla. Stat., specifically provides that an official or
officials may be fined for knowing anddwillful violations occurring under their
jurisdiction.
165. The violations of Sec. 790.33 herein were knowing and willful by the
individuals who committed the violations.
166. Oates was an appointed local governmental official under whose
jurisdiction the knowing and willful violations set forth in Count 2 occurred.
167. The violations of Sec. 790.33 herein were knowing and willful by the
individuals who committed the violations.
168. Sec. 790.33(3)(c), Fla. Stat., specifically provides that an official or
officials may be fined for knowing and willful violations occurring under their
jurisdiction.
169. The Officers who committed the violations knew or should have
known that they were without authority to rely on any policy, rule, procedure,
ordinance or sign promulgated or published by the City of Miami Beach which in
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any way impaired the rights of law-abiding citizens to bear arms in defense of
themselves or the states.
170. The Officers knew or should have known that any signs prohibiting
the possession of firearm or ammunition on a city pier were not legally valid and
could not be relied upon.
171. The Officers knew or should have known that any city ordinance
prohibiting possession of firearms or ammunition was preempted or had been
repealed.
172. The Officers knew or should have known that the persons in
possession of firearms or ammunition while fishing were acting within their lawful
rights as citizens.
173. The Officers knew or should have known that they were without
authority to disarm or detain peacefully and lawfully armed persons acting within
their rights under state law.
174. The Officers knew or should have known that persons fishing while
openly carrying firearms were acting lawfully.
175. The Officers acted with reckless disregard in disarming lawfully
armed citizens in violation of their rights under the Florida and U.S. Constitutions.
26
176. The Officers recklessly disregarded the rights of the citizens to be
armed in defense of themselves and the lawful authority of the state by disarming
the Citizens and leaving them without operable firearms.
177. The violations of the rights of law-abiding gun owners and the
violation of their right to be armed was in violation of the statewide preemption of
firearms laws.
178. The violations of the rights of the Citizens by the Defendant Officers
was knowing and willful.
179. Oates ratified the conduct of the Officers by his statement, indicating
his full support for the officer's actions.
180. The knowing and willful violations by the Defendant Officers
occurred under the jurisdiction of Oates his capacity as one of the appointed or
elected officials under whose jurisdiction the knowing and willful conduct of the
officers occurred.
181. Oates further ratified the conduct of the Defendant Officers by his
statements.
WHEREFORE, Plaintiffs request a determination that the violations of Sec.
790.33 by the Defendant Officers was knowing and willful, and that said violations
occurred under the jurisdiction of Oates as an appointed local governmental
27
official under whose jurisdiction the violation occurred, and requests the Court
asses a civil fine against Oates in the amount of$5,000.00
COUNT 4- Violation of Civil Rights of Devine, Weiss, Guiterrez, and Philpot
Under Color of Law by Officers Garcia, Bolduc, Villamil, Rivera, Hicks and
Mitchell.
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
182. This Count is brought pursuant to 42 U.S.C. Sec. 1983.
183. Officers, Garcia, Villamil, and Rivera violated the rights of Devine,
Wiess, Guiterrez, and Philpot (within this Count collectively, "the Citizens"), by
committing an assault, including the unlawful pointing of loaded firearms at the
Citizens.
184. Officer Bolduc violated the rights of the Citizens by assisting and
providing cover for Garcia, Villamil, and Rivera while they committed the assault
• on Plaintiffs.
185. Officer Bolduc instructed and directed the assault that was committed
on Plaintiffs.
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186. The assault committed by against Jenkins, Taylor, Devine, Guiterrez
and Philpot by Garcia, Villamil, and Rivera and directed by Bolduc was without
legal justification.
187. The assault committed against Weiss by Garcia and Rivera was
without legal justification.
188. The battery of Weiss by Garcia was without legal justification.
189. The deprivation of Weiss's property was without legal justification.
190. The search of Weiss was without legal justification.
191. Officers Garcia violated the rights of Weiss, Guiterrez, and Philpot by
committing battery on them while handcuffing them.
192. Officer Garcia violated the rights of Weiss, Guiterrez, and Philpot by
depriving them of their property.
193. Officer Garcia violated the rights of Weiss, Guiterrez, and Philpot by
depriving them of their right to bear arms under the Second Amendment.
194. Officer Garcia violated the rights of Weiss and Philpot by searching
them.
195. Officer Mitchell violated the rights of Devine by searching Devine.
196. Officer Hicks violated the rights of Guiterrez by searching Guiterrez.
197. There was no legal justification for depriving Weiss, Guiterrez, or
Philpot of their property.
29
198. There was no legal justification for searching Weiss, Guiterrez,
Philpot, or Devine.
199. Garcia, Bolduc, Villamil, and Rivera knew or should have known that
there was no reasonable articulable suspicion on which to base a detention of the
Citizens.
200. Garcia, Bolduc, Villamil, Hicks, Mitchell, and Rivera knew or should
have known that it was well established that detaining an individual without
reasonable articulable suspicion of a crime was a violation of the Citizens' rights to
be free from unlawful search and seizure.
201. Garcia, Bolduc, Villamil, Hicks, Mitchell, and Rivera knew or should
have known that the mere possession of a firearm by a citizen, without more, could
not form a reasonable articulable suspicion that the citizen was engaged in criminal
conduct.
202. Garcia, Bolduc, Villamil, Hicks, Mitchell and Rivera knew of should
have known that depriving a person of their fundamental right to bear arms without
reasonable articulable suspicion of criminal activity was a violation of the Citizens'
right to bear arms. •
203. Garcia, Bolduc, Villamil, Hicks, Mitchell, and Rivera knowingly or
with reckless disregard of the rights of the. Citizens violated the rights of the
Citizens under color of their authority.
30 •
204. Devine, Weiss, Guiterrez, and Philpot all suffered infliction of
emotional distress, mental anguish, embarrassment in addition to the deprivation of
their constitutional rights by Garcia, Bolduc, Villamil, and Rivera.
205. Garcia, Bolduc, Villamil, and Rivera knowingly or with reckless
disregard of the rights of Florida Carry, interrupted its event preventing the
exercise of Florida Carry and its members' and supporters' rights of freedom of
association.
206. Florida Carry was damaged by the fact that persons might be fearful
to associate with Florida Cany out of fear of having firearms pointed at them,
being detained, and being unlawfully searched.
207. Defendant Officers violated Citizens rights to engage in the lawful
taking of game fish and committed a criminal violation of Florida law in so doing.
WHEREFORE, Plaintiffs request the Court award damages for the
violations of Plaintiffs rights by the Defendant Officers, injuries suffered by
Plaintiffs, attorneys' fees costs and all other relief deemed just and equitable by the
Court.
COUNT 5- Violation of Taylor's Civil Rights under Color of Law by Villamil.
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
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208. This Count is brought pursuant to 42 U.S.C. Sec. 1983.
209. Villamil detained Taylor.
210. Villamil had no legal basis to detain Taylor.
211. Villamil placed Taylor in handcuffs.
212. Villamil had no legal basis to handcuff Taylor.
213. Villamil seized property belonging to Taylor.
214. Villamil had no legal basis to seize Taylor's property.
215. Villamil seized Taylor's firearm.
216. Taylor's firearm was lawfully carried.
217. Villamil had no legal basis to disarm Taylor.
218. Villamil's seizure of Taylor's firearm was in violation of Taylor's
right to bear arms.
219. Villamil placed Taylor in handcuffs without any legal justification for
a detention of Taylor.
220. During the battering and handcuffing of Taylor, Villamil used
excessive force.
221. At no time did Taylor resist Villamil in any way.
222. The excessive force used by Villamil resulted in permanent physical
i nj uxy to Taylor.
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223. The placing of handcuffs on Taylor without any reasonable suspicion,
much less probable cause, was in and of itself excessive force.
224. Additionally, Villamil used more force than was necessary in the
detention of Taylor who was clearly stating his intent verbally to cooperate with all
commands of the officers.
225. The application of this excessive force resulted in permanent injuries
to Taylor.
226. The injury to Taylor resulted in damages for which Officers Villamil
is liable.
WHEREFORE Taylor request an award of damages against the
above-named officer for deprivation of Taylor's rights under color of law, and for
excessive force resulting in permanent injuries to Taylor, including economic and
non-economic damages, and all other relief deemed just and equitable by the
Court.
COUNT 6- Violation of Jenkins' Civil Rights under Color of Law by Rivera.
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
227. This Count is brought pursuant to 42 U.S.C. Sec. 1983.
228. . Rivera detained Jenkins.
33
229. Rivera had no legal basis to detain Jenkins.
230. Rivera placed Jenkins in handcuffs.
231. Rivera had no legal basis to handcuff Jenkins.
232. Rivera seized property belonging to Jenkins.
233. Rivera had no legal basis to seize Jenkins's property.
234. Rivera seized Jenkins's firearm.
235. Jenkins's firearm was lawfully carried.
236. Rivera had no legal basis to disarm Jenkins.
237. Rivera's seizure of Jenkins's firearm was in violation of Jenkins's
right to bear arms.
238. Rivera placed Jenkins in handcuffs without any legal justification for
a detention of Jenkins.
239. During the battering and handcuffing of Jenkins, Rivera used
excessive force.
240. At no time did Jenkins resist Rivera in any way.
241. The excessive force used by Rivera resulted in permanent physical
injury to Jenkins.
242. The placing of handcuffs on Jenkins without any reasonable
suspicion, much less probable cause, was in and of itself excessive force.
34
243. Additionally, Rivera used more force than was necessary in the
detention of Jenkins who was clearly stating his intent verbally to cooperate with
all commands of the officers.
244. The application of this excessive force resulted in permanent injuries
to Jenkins.
245. The injury to Jenkins resulted in damages for which Officer Rivera is
liable.
WHEREFORE Jenkins request an award of damages against the
above-named officer for deprivation of Jenkins's rights under color of law, and for
excessive force resulting in permanent injuries to Jenkins, including economic and
non-economic damages, and all other relief deemed just and equitable by the
Court.
COUNT 7- Violation of Civil Rights Under Color of Law of all Plaintiffs by
Officers Garcia, Bolduc, Villamil, Rivera, Er. Vidal, Cano, Salabarria,
Mitchell, Bicelis, Hicks, El. Vidal and Lt. Eduardo Garcia.
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
246. This Count is brought pursuant to 42 U.S.C. Sec. 1983.
35
247. Plaintiffs were denied their-right to be free and were deprived of their
liberty interest by Defendant Officers.
248. All Defendant Officers participated in the continued unlawful
detention of the Citizens after they were placed in handcuffs and searched.
249. All Defendant Officers violated the liberty interest of the Plaintiffs to
be free from continued detention and from unlawful search and seizure of their
property and their persons.
250. Defendant Officers failed to take sufficient steps to protect Taylor
from further injury while in their custody, even after repeated attempts by Taylor
to inform the Officers of the pain he was suffering.
251. All Defendant Officers had an obligation to take steps to prevent
further injury to Taylor by protecting him from injury while suffering a custodial
detention, especially a custodial detention that was illegal from the outset.
252. Even after contacting emergency medical services, who were not
sufficiently trained to diagnosis an injury that might have occurred or be occurring
at the time, Defendant Officers failed to take any steps to relieve the pain or further
injury being caused by the placement of the handcuffs.
253. Defendant Officers knew or should have known that there was no
reasonable articulable suspicion on which to base a continued detention of the
Citizens.
36
254. Defendant Officers knew or should have known that it was well
established that continuing to detain an individual without reasonable articulable
suspicion of a crime was a violation of the Citizens' rights to be free from unlawful
search and seizure.
255. Defendant Officers knew or should have known that the mere
possession of a firearm by a citizen, without more, could not form a reasonable
articulable suspicion that the citizen was engaged in criminal conduct.
256. Defendant Officers knew of should have known that depriving a
person of their fundamental right to bear arms without reasonable articulable
suspicion of criminal activity was a violation of the citizen's rights to be free from
unlawful seizure of their property.
257. Defendant Officers knowingly or with reckless disregard of the rights
of the Citizens violated the rights of the Citizens under color of their authority.
258. Defendant Officers knowingly or with reckless disregard of the rights
of Florida Carry and its members and supporters, interrupted Florida Carry's event
preventing the exercise of Florida Carry and its members' and supporters' rights of
freedom of assembly and association.
259. Defendant Officers further knowingly or with reckless disregard of
the rights of Florida Carry and its members and supporters, interrupted its event
preventing the exercise of Florida Carry and its members' and supporters' rights of
37
freedom of assembly and association by closing the fishing pier until all members
and supporters of Florida Carry had left South Pointe Park.
260. Defendant Officers violated Citizens rights to engage in the lawful
taking of game fish and committed a criminal violation of Florida law in so doing.
WHEREFORE, Plaintiffs request the Court award damages for the
violations of Plaintiffs rights by the Defendant Officers, injuries suffered by
Plaintiffs, attorneys' fees costs and all other relief deemed just and equitable by the
Court.
COUNT 8- Violation of Civil Rights under Color of Law by the City of Miami
Beach
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
•
261. This Count is brought pursuant to 42 U.S.C. Sec. 1983.
262. Defendants Morales and Oates are policy makers for the City of
Miami Beach. •
263. As the appointed City Manager and appointed police chief
respectively, they establish rules, procedures, and policies and are responsible for
the training of Defendant Officers.
38
264. As already set forth, Oates ratified the Defendant Officers' conduct in
this case by his statements as set forth above.
265. The Mayor of Defendant Miami Beach, Dan Gelber, similarly ratified
the Defendant Officers' actions by his statements as set forth above.
266. Defendants Oates and City of Miami Beach were sent prior notice of
the legality of fishing while openly carrying firearms to the City Attorney and to
Oates.
267. Despite knowledge of the event and advanced knowledge of Plaintiffs
intended conduct, Defendant failed to take any action to properly inform its
officers of the event that was to be held.
268. Defendants knew or should have known of a prior instance in Florida
where the City of Tampa's police officers illegally detained a fisherman.
269. Defendants knew or should have known that in a prior similar
instance in Tampa, officers improperly detained a fisherman who was open
carrying.
270. Defendants knew or should have known that police officers for the
City of Tampa improperly issued a trespass warning against a fisherman who was
openly carrying.
39
271. Despite knowledge of the event to be held, Defendant City failed to
properly train its officers regarding Florida Law regarding the lawful possession of
firearms by law-abiding citizens.
272. Defendants failed to properly train officers to read and interpret state
statutes and case law to determine whether conduct was lawful or unlawful.
273. Based on the statement of Oates, the city has a policy of depriving
persons of their fundamental individual right to bear arms.
274. Defendant allowed its Officers to engage in criminal conduct by
interfering with the lawful taking of game fish, a protected right under state law, by
shutting down a city pier in response to lawful fishing activity by armed persons.
275. Defendant City allowed its officers acting in reliance upon city policy
to interfere with Plaintiffs' lawful freedom of association by closing the pier
despite no violation of law.
276. Defendant City allowed it officers acting in reliance upon city policy
to interfere with Plaintiffs' lawful freedom of assembly by closing the pier despite
no violation of law.
277. Defendant City allowed it officers acting in reliance upon city policy
to interfere with Plaintiffs' lawful right to bear arms.
278. Defendant City allowed it officers acting in reliance upon city policy
to interfere with Plaintiffs' right to be free of unlawful searches.
40
279. Defendant City allowed it officers acting in reliance upon city policy
to interfere with Plaintiffs' right to be free of unlawful seizures of their persons.
280. Defendant City allowed it officers acting in reliance upon city policy
to interfere with Plaintiffs' right to be free of unlawful seizures of their property.
281. The City ratified the Defendant Officers' actions by failing to take
immediate steps to remedy the violations of the Citizens' rights.
282. The statements of Mayor Gelber and Defendant Oates demonstrate
that the officers were acting within the approved policies and procedures of the
Defendant City of Miami Beach.
283. The statements of Mayor Gelber and Oates constitute a ratification of
the Defendant Officers' conduct on behalf of the City of Miami Beach.
284. The City violated the rights of the Citizens to be free from deprivation
of their liberty interest.
285. The City violated the rights of Citizens to be free from unreasonable
searches and seizures of their persons, their property, and vehicles.
286. The City violated Plaintiffs' First Amendment rights of free speech,
assembly, and freedom of association.
287. The City violated the Citizens' rights to keep and to bear arms.
WHEREFORE, Plaintiffs request an award of damages for all injuries
suffered by the Plaintiffs as a result of the violation of their rights, including
41
•
physical and emotion injuries, clearing and deleting of all records created by
Defendants regarding the Plaintiffs to include any records of firearms owned by
Plaintiffs, deleting of all records regarding allegations that Plaintiffs are sovereign
citizens including any records transmitted to any other entity of the state of Florida,
attorneys' fees and costs and all other relief deemed just and equitable by the
Court.
COUNT 9- Conspiracy to interfere with civil rights of Plaintiffs, by Defendant
City of Miami Beach and Defendant Officers Garcia, Bolduc, Villamil, Rivera,
Er. Vidal, Cano, Salabarria, Mitchell, Bicelis, Hicks, EL Vidal and Lt.
Eduardo Garcia.
Plaintiffs re-allege paragraphs l through 112 and paragraphs 182 through
287 as if set forth in full and further allege:
288. This action is brought pursuant to Sec. 42 U.S.C. Sec. 1985.
289. Defendant Officers conspired to deprive both the individual Plaintiffs
and Florida Carry, of their rights and their equal privileges and immunities under
the laws.
290. Defendant Officers conspired to violate Plaintiffs' First Amendment
right to assemble.
291. Defendant Officers conspired to violate Plaintiffs' First Amendment
right to associate.
42
•
292. Defendant Officers closed a public venue for no reason other than
their disagreement with the reason the Plaintiffs were assembled.
293. Defendant Officers desire to restrict Plaintiffs' assembly was content
based.
294. As evidence of the content-based restriction, in weeks prior to the
violations of Plaintiffs' rights, Defendant City sponsored and hosted a
demonstration by "March for our Lives". (Miami Beach Resolution 201.8-30241)
295. March for Our Lives is an organization created to oppose the rights of
Plaintiffs.
296. Defendant City waived all special event permit fees, user fees, square
footage fees, and administrative fees of any kind for their event, authorized the
solicitation of cash and in-kind solicitations by Gelber and members of the City
Commission to offset costs.
297. The March for our Lives event which the City was a sponsor for
required the closure of city streets by Defendant City and resulted in a loss of
revenue to the City.
298. Defendants conspired to violate Plaintiffs' Second Amendment right
to bear arms.
43
299. Defendant Officers acting on behalf of Defendant City conspired to
deprive Plaintiffs of a location where they could lawfully assemble while openly
bearing arms.
300. Defendants violated Plaintiffs' expressive speech by engaging in a
content-based restriction.
301. Defendants' closing of the pier was intended by Defendants to prevent
Plaintiffs from expressing and exercising their rights and opinions of which the
City disapproved as demonstrated by its sponsorship of the March for our Lives
and its lawsuit to have Sec. 790.33-declared unconstitutional.
302. Defendant Oates and Mayor Gelber ratified the conduct of the
Defendant Officers by their statements.
303. Plaintiffs were injured as a result of Defendants' conspiracy to violate
their rights.
304. Plaintiffs were deprived of their rights and property by Defendants.
WHEREFORE, Defendants individually and collectively conspired to deny
the Plaintiffs' First and Second Amendment rights to associate, assemble, and bear
arms and suffered damages as a result of the conspiracy to deprive Plaintiffs of
their rights. Plaintiffs request compensation for the deprivation of their rights,
damages for the injuries suffered, attorneys' fees, costs, and all other relief deemed
just and equitable.
44
COUNT 10- False Imprisonment of Taylor, Jenkins, Devine, Weiss, Guiterrez,
and Philpot by Defendant Officers.
Plaintiffs re-allege paragraphs l through 112 as if set forth in full and further
allege:
305. Defendant Officers Garcia, Villamil, and Rivera, with the assistance
of Bolduc knowingly and willfully detained the Citizens, at gunpoint
306. All Defendants Officers participated in the continued detention of the
Citizens after they were initially detained..
307. Defendant Officers had no legal basis for the detention of the
Citizens.
308. The detention of the Citizens was without the Citizens' consent.
309. The detention of tl�e Citizens was without lawful authority.
WHEREFORE, Plaintiffs requests an award of damages and all other relief
deemed just and equitable by the Court.
COUNT 11- Assault on Taylor, Jenkins, Devine, Weiss, Guiterrez, and Philpot
by Officers Garcia, Villamil, and Rivera
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
45
310. Officer Garcia, Villamil, and Rivera pointed loaded firearms at the
Citizens.
311. The pointing of firearms at the Citizens was an intentional threat to
inflict injury on the Citizens.
312. The presence of Garcia, Villamil, and Rivera's loaded firearms in
their hands and pointed at the Citizens demonstrated that the officers had the
apparent ability to cause harm to the Citizens.
313. The Citizens had a reasonable apprehension of bodily harm, including
death, due to the pointing of the Officers' loaded firearms.
314. The Citizens have all suffered damages as a result of the assault,
including but not limited to mental anguish, fright
WHEREFORE, Plaintiffs requests an award of damages and all other relief
deemed just and equitable by the Court.
COUNT 12- Battery on Taylor, Jenkins, Devine, Weiss, Guiterrez, and
Philpot by Officers Garcia, Villamil, Rivera, Hicks, Mitchell and Bolduc
Plaintiffs re-allege paragraphs 1 through 112 as if set forth in full and further
allege:
315. Officers Garcia, •Villamil, Rivera, Hicks, Mitchell and Bolduc
committed battery on the Citizens.
46
316. Each Citizen was harmfully or offensively contacted by one of the
identified officers.
317. Taylor was battered by Villamil
318. Jenkins was battered by Rivera
319. Devine was battered by Mitchell
320. Weiss was battered by Garcia
321. Guiterrez was battered by Garcia and Hicks.
322. Philpot was battered by Garcia.
323. The Officers had no legal basis to touch any of the Citizens.
324. Each of the Citizens' was damaged as a result of the harmful and
offensive touching by the officers.
325. The Citizens all suffered.infliction of emotional distress, mental
anguish, embarrassment, and pain in the commission of the battery by the officers.
326. Plaintiffs Taylor, Jenkins, Philpot, and Guiterrez, were further
battered by placing them in handcuffs for approximately one and one-half hours.
327. Additionally, Plaintiffs Taylor and Jenkins suffered permanent
physical injuries as a result of the battery by the above-named officers.
WHEREFORE, Plaintiffs request an award of damages against the
Defendants named in this Count, and all other relief deemed just and equitable by
the Court.
47
COUNT 13- Respondent Superior Liability for Assault, Battery, and False
Imprisonment of Taylor, Jenkins, Devine, Weiss, Guiterrez, and Philpot
against City of Miami Beach.
Plaintiffs re-allege paragraphs 1 through 112 and paragraphs 305-327 as if
set forth in full and further allege:
328. At all times material Officers Garcia, Bolduc, Villamil, Rivera, Er.
Vidal, Cano, Salabarria, Mitchell, Bicelis, Hicks, El. Vidal and Lt. Garcia were
employees of the City of Miami Beach.
329. At all times material Officers Garcia, Bolduc, Villamil, Rivera, Er.
Vidal, Cano, Salabarria, Mitchell, Bicelis, Hicks, El. Vidal and Lt. Garcia were
acting within the course and scope of their employment.
330. The Officers actions were in the furtherance of the interest of their
employer.
331. The employer had placed a sign prohibiting the possession of firearms
on the South Pointe Pier.
332. Officers Rivera, Garcia, and Villamil acted in reliance upon the sign
in committing an assault on the Citizens who were fishing on the pier.
333. Officers Rivera, Garcia, and Villamil acted in reliance upon the sign
in handcuffing Taylor, Jenkins, Guiterrez, and Philpot who were fishing on the
pier.
48
334. Officers Rivera, Garcia, Hicks, Mitchell, and Villainil acted in
reliance upon the sign in committing battery on the Citizens who were fishing on
the pier.
335. Defendant Officers acted in reliance upon the sign in committing false
imprisonment on the Citizens who were fishing on the pier.
336. Defendant Officers acted in reliance upon the sign in refusing to
return firearms in an operable condition to the Citizens who were fishing on the
pier.
337. The statements by Gelber and Oates ratifying the conduct of the
Defendant Officers demonstrate that the officers were acting in the course and
scope of their employment and with the full knowledge of the employer and were
advancing the employer's interest when undertaking the complained of conduct.
338. Plaintiffs were damaged by the actions of the employee Officers who
were acting in the course and scope of their employment.
WHEREFORE, Plaintiffs request the City of Miami Beach be held liable for
the actions of the Officers, and for damages for the False Imprisonment, Assault,
and Battery, against Plaintiffs.
Plaintiffs demand trial by jury on all issues so triable.
Dated this 27th day of March 2019
49
Kingry & Friday
/s/ Eric J. Friday
Eric J. Friday, Esquire
Florida Bar No.: 0797901
1919. Atlantic Blvd.
Jacksonville, Florida 32207
Telephone: (904) 722-3333
Service@ericfriday.corn
efriday@ericfriday.corn
Law Offices of Noel H. Flasterstein
Noel H. Flasterstein
Florida Bar No.: 189553
1700 S. Dixie Hwy, # 501
Boca Raton, FL 33432
813-919-7400
50