For more than a year now, the CIP has been engaged in a lawsuit against Miami's police chief, John Timoney, to force him to release documents the panel wants to review. Timoney has refused. What is startling about the lawsuit is how Miami City Attorney Jorge Fernandez, whose office is defending Timoney, views the CIP. In court filings, the city attorney's office termed the CIP a "subservient" and "not autonomous" agency with no power to file lawsuits.
That argument didn't wash in the Eleventh Judicial Circuit Court. After careful review, the judge ordered the department to cough up the material. The police department once again refused and is taking the matter to the Third District Court of Appeal.
On July 12, the Third DCA will hear the police department argue why the CIP and the lower court are wrong. At stake is the mission of the CIP itself, formed in the wake of several scandals in the pre-Timoney department, including the 2001 arrests of thirteen officers for taking part in a conspiracy to plant guns on victims of police shootings.
"The police department is trying to take away in court what the voters created several years ago," says Howard Simon, executive director of the Florida ACLU, which filed an amicus brief on behalf of the CIP. The ACLU is monitoring the case closely, viewing it an attempt by authorities to deny access to otherwise public information in a post-9/11 world. "This is the first time the CIP is flexing its muscle," he says. "If the city prevails, I think the CIP will end up being powerless."
Neither city officials nor CIP members would comment, saying the matter is still in the courts.
Litigation began in 2004, after the CIP requested a copy of the police department's Operational Plan for the Free Trade Area of the Americas summit. The FTAA meeting took place in November 2003, and Miami officials were scared at the time that anarchist protesters would descend in unwashed hordes to wreak havoc in their city. Timoney's police department stepped in and turned downtown into a carefully controlled armed camp. In the summit's aftermath, city leaders claimed success, but there were numerous complaints that police had arrested protesters for no cause (indeed, of more than 200 arrests, there had been only three convictions as of March 2004, the latest figures available); fired tear gas and rubber pellets indiscriminately; and in general crushed free speech under a black-soled boot. (One of those arrested was a New Times reporter, whose case was eventually dismissed).
Sounds like a job for the CIP, right? After all, the agency was created to review the police department's "policies and procedures," and given Miami is vying to become the permanent headquarters of the FTAA, it makes sense the CIP would want to see (a) if police did indeed overreact, and (b) if so, whether the overreaction was the result of the department's operational plan. Such a review might help prevent a recurrence of the problems.
Shortly after the summit, the CIP filed a public-records request for the operational plan, and the department refused, claiming the package contains "sensitive" law-enforcement information.
The gauntlet had been thrown; if the CIP was going to function in this town, it would have to push back. Timoney claims his department has been as cooperative as it can be. He told city commissioners he has personally testified for hours in front of the CIP. "We also supplied the CIP with fifteen or sixteen volumes of documents surrounding the FTAA," Timoney said earlier. "But there is a principle here."
Apparently CIP Chairman Larry Handfield agrees.
On June 18, 2004, the CIP filed suit in front of Circuit Court Judge Michael Chavies, demanding the release of the document under the state's public-records law. The police department once again refused, claiming exemption for any plan "pertaining to the mobilization, deployment, or tactical operations involved in responding to emergencies." (Various political and activist groups had planned to gather in Miami to protest the event.)
In addition, city lawyers stated, the pesky CIP had no standing to file a lawsuit. "The CIP is an advisory board created by the City of Miami Commission. By its nature, it is subservient and not autonomous," the city's July 29, 2004 motion to dismiss asserts. "The duties of the CIP consist primarily of conducting investigations related to the city police department's polices and procedures ... for purposes of making written recommendations to the chief of police, the city commission, and city manager."
Of course, CIP defenders are quick to point out that the electorate probably didn't think of it that way when 76 percent of them voted to create the CIP as an "independent citizens' oversight of the sworn police department," complete with subpoena powers.
In any event, Judge Chavies was skeptical that a planned event, like a summit, qualified as an emergency, or that the entire document could be exempt. He decided to review the material in camera, meaning alone in his chambers, and emerged September 15, 2004, saying he didn't see anything sensitive in its pages. He ordered the department to hand the document over to the CIP. The city attorney's office appealed, and the matter is now headed to the Third District Court of Appeal.
Thus we have an absurd situation in which one city entity is suing another, and after one court has ruled, the matter is being dragged through an appeal. The first time the city commission was apparently made aware of the matter was April 14, 2005, when Commissioner Tomas Regalado asked Handfield, "Have you filed suit against the Miami Police Department?"
Commissioner Jeffery Allen then asked City Attorney Fernandez what would happen if the city lost in the Third DCA. "Are we going to then try to appeal it even further, to the Florida Supreme Court?" To which Fernandez replied, "If I feel it is meritorious, I will come back to this commission and request authorization to perfect a further appeal."
Timoney's resistance is understandable; he's not expected to embrace the CIP. But between crafting an argument to make the CIP irrelevant and vowing to drag this thing on forever (at taxpayer expense), City Attorney Fernandez is emerging as the real obstacle to progress here, and hardly in tune with the people's mandate.
Commissioner Angel Gonzalez, always quick to stump populist, cut through the legal subtleties when he offered these words of portent to Handfield: "Every single [CIP] case is important ... because an abuse case is important. However, in the big picture, you will be judged by the FTAA."
No doubt Handfield doesn't need to be reminded.
