Adam Elend, Jeff Marks, and
Joe Redner, Case No.: 8:03-CV-1657-T-23TGW
Plaintiff(s),
v.
Sun Dome Inc., a Florida Corporation;
The University of South Florida Board of
Trustees, in their Representative Capacity
for the University of South Florida;
Cal Henderson, in his official capacity as
Sheriff of Hillsborough County; and W. Ralph
Basham, in his official capacity as Director of
The United States Secret Service,
Defendant(s).
_________________________________/
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF,
DAMAGES, ATTORNEY'S FEES, AND A DEMAND FOR JURY TRIAL, , ,
Plaintiffs, ADAM ELEND, JEFF MARKS, and JOE REDNER, as individuals, sue Defendants, SUN DOME INC., a Florida Corporation, THE UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES, in their representative capacity for the University of South Florida; CAL HENDERSON, in his official capacity as Sheriff of Hillsborough County; and W. RALPH BASHAM, in his official capacity as Director of the United States Secret Service, and for their Complaint allege as follows:
PRELIMINARY STATEMENT
This is an action under the laws and Constitution of the United States alleging
that SUN DOME INC., a Florida Corporation, The UNIVERSITY OF SOUTH FLORIDA BOARD
OF TRUSTEES, in their representative capacity for the University of South Florida;
CAL HENDERSON, in his official capacity as Sheriff of Hillsborough County; and
W. RALPH BASHAM, in his official capacity as Director of The United States Secret
Service, by and through the actions of the Secret Service, the University of
South Florida Police Department, agents of Sun Dome, Inc., and Deputies of the
Hillsborough County Sheriff's Office, acting in concert, have imposed, and will
continue to impose, an impermissible and unconstitutional prior restraint on
the presentation and expression of political speech, clearly protected by the
First Amendment to United States Constitution and Article I, Section 4, of the
Florida Constitution, as well as other constitutional grounds. The Defendants
wrongful acts include, but are not limited to, creating and implementing a constitutionally
impermissible plan for restricting expressive speech by engaging in a pattern
of unlawful conduct through the custom and practice of engaging in excessive
interference with protected speech through the establishment of "protest
zones" and the unlawful arrests and intimidation of Plaintiffs in the exercise
of presenting opposing political views at political events taking place in a
public forum. As a result of the wrongful conduct of the Defendants, jointly
and severally, which was effected with full knowledge of and callous indifference
to the constitutional rights of the Plaintiffs, said Plaintiffs have suffered
irreparable harm in the deprivation of their constitutional rights to free expression,
and other damages all effected through the acts of Defendants under color of
State law.
JURISDICTION
1. This is an action for declaratory and injunctive relief, damages, and attorney’s
fees.
2. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§
1331 and 1343 in that these matters arise out of the First, Fifth and Fourteenth
Amendments to the United States Constitution and 42 U.S.C. §§ 1983,
1985, and 1988.
3. The supplemental jurisdiction of this Court is invoked pursuant to 28 U.S.C.
§ 1367. The supplemental matters arise out of the Constitution of the State
of Florida.
4. Venue in this Court is appropriate under 28 U.S.C. Section 1391(b) as the
actions about which the Plaintiffs complain and from which Plaintiffs seek relief
have all taken place within this judicial district.
THE PARTIES
5. ADAM ELEND, (hereinafter “ELEND”) is an individual, and a resident
within the jurisdiction of the United States District Court for the Middle District
of Florida.
6. JEFF MARKS, (hereinafter “MARKS”) is an individual, and a resident
within the jurisdiction of the United States District Court for the Middle District
of Florida.
7. JOE REDNER, (hereinafter “REDNER”) is an individual, and a resident
within the jurisdiction of the United States District Court for the Middle District
of Florida.
8. At all times material hereto, Defendant, SUN DOME, INC. was a Florida not
for profit corporation that has a contractual relationship with the University
of South Florida, by and through the University of South Florida Board of Trustees,
to operate and maintain the large capacity public forum known as the Sun Dome,
which is indisputably located within the boundaries of the University of South
Florida Campus.
9. Defendant, The UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES (hereinafter
"USF"), is being named in their representative capacity for the University
of South Florida, a state operated public institution of higher education, and
which itself is included in this action as the representative entity for the
University of South Florida Police Department. The University of South Florida
Police Department is charged with the enforcement of state and local laws, as
well as the enforcement of USF regulations, on the USF campus, for the protection
of the public health, safety and welfare, all required to be implemented in
accordance with the constitutional constraints.
10. Defendant, CAL HENDERSON (hereinafter "SHERIFF"), in his official
capacity as Sheriff of Hillsborough County was at all times material hereto,
and is, the duly elected Sheriff of Hillsborough County, Florida, and is being
sued in his official capacity. By naming the SHERIFF in his official capacity,
this Complaint contemplates and incorporates the activities of all Deputies
of the Hillsborough County Sheriff's Office. The Hillsborough County Sheriff's
Office is charged with the enforcement of state and local laws within Hillsborough
County, Florida, for the protection of the public health, safety and welfare,
all required to be implemented in accordance with the constitutional constraints.
11. The Defendant, W. RALPH BASHAM (hereinafter "SECRET SERVICE"),
in his official capacity as Director of The United States Secret Service, was
at all times material hereto, and is, the Director of The United States Secret
Service. The Secret Service is an agency of the federal government charged with
protecting the President of the United States, as well as other responsibilities
all required to be implemented in accordance with constitutional constraints.
GENERAL ALLEGATIONS
12. On November 2, 2002, an event was held at the USF Sun Dome, which was attended
by the President of the United States, George W. Bush, ostensibly to garner
support for his brother, Governor Jeb Bush, who was then the Republican candidate
for the Governor of the State of Florida.
13. The Defendants, agents of SUN DOME INC., officers of the USF Police Department,
SHERIFF's deputies, and agents of the SECRET SERVICE, in relation to the November
2, 2002 event, were charged with the responsibility of devising a constitutionally
permissible plan to accommodate the safety and security of the President, political
candidates and affiliates, members of the general public and citizens wishing
to express their political viewpoints at said event.
14. Relevant to these duties and responsibilities, the Defendants devised a
constitutionally impermissible plan by creating a "Protest Zone,"
or, even more ironically labeled, a "First Amendment Zone." This "zone"
was specifically an area where any "demonstrator" or any person wishing
to voice political views or exhibit placards expressing political views was
to be relegated and/or confined.
15. On November 2, 2002, this so called "Protest Zone" was ultimately
placed several hundred yards from the Sun Dome, in a remote and obscure area
where it was virtually impossible for any person at or near the Sun Dome to
be cognizant of any political message being communicated by any person banished
to the "Protest Zone," with there being absolutely no "alternative
avenue of communication" available to any protestor or political speaker
to sufficiently communicate to event attendees.
16. Based on testimony and public record, Defendants SUN DOME, INC., USF, and
the SECRET SERVICE have previously instituted a policy and practice of forcing
"demonstrators" or selected political speakers (specifically selected
on the basis of the content of their message) to constrain themselves to other
"Protest Zones."
17. In the instance of Sun Dome, Inc. and USF, these other "Protest Zones"
have been located in areas contiguous and or adjacent to the Sun Dome, imposing
the "Protest Zone" in a less restrictive manner than that imposed
on November 2, 2002.
18. In the instance of the SECRET SERVICE, these other so called "Protest
Zones" have been widely utilized as a reflection of their custom and practice
of implementing constitutionally impermissible restrictions on protected political
speech at virtually every domestic presidential appearance.
19. On the morning of November 2, 2002, Plaintiffs ELEND, MARKS, and REDNER
prepared 2 placards containing political messages that they wished to communicate
to the other attendees of the November 2, 2002 event.
20. The placards contained the following messages:
a) "FREEDOM
OF EXPRESSION WOULD NOT TRULY EXIST IF THE RIGHT COULD ONLY BE EXERCISED IN
AN AREA THAT A BENEVOLENT GOVERNMENT HAS PROVIDED AS A SAFE HAVEN FOR CRACKPOTS"
TINKER V. DESMOINES, 393 U.S. 503
b) "WHY DO
YOU LET THESE CROOKS FOOL YOU?"
c) "WAR IS
GOOD FOR BUSINESS. INVEST YOUR SONS"
21. As planned, Plaintiffs ELEND, MARKS, and REDNER arrived at the USF Sun Dome.
MARKS and REDNER began to peacefully hold up their placards for the purpose
of communicating their political messages to other individuals attending the
Sun Dome event. ELEND began video-taping the events of the day, as well as distributing
to interested parties the Supreme Court decisions issued in Tinker v. Des Moines,
393 U.S. 503 (1969); Snyder v. New Jersey, 364 U.S. 848 (1960); and Watchtower
Bible and Tract Society of New York, Inc., et al v. Village of Stratton et al,
536 U.S. 150, 153 (2002).
22. Plaintiffs, in an effort to communicate their message in a fashion that
would be both unobtrusive and not lend itself to interference with the rights
of others, located themselves at a median adjacent to Parking Lot 22-E of the
property within the Tampa Campus of the University of South Florida, over 150
feet from the nearest Sun Dome entrance, and at least 30 feet from event attendees
waiting to enter in a line stretched around the facility. A frontage road acted
as a buffer between event attendees waiting in line and Plaintiffs.
23. Immediately upon reaching their desired location, Plaintiffs ELEND, MARKS,
and REDNER were approached by officers of the USF Police Department and told
that they could not communicate their message from their chosen location and
would have to move approximately 1/4 mile away to the remote designated "Protest
Zone". The USF officers gave no specific instructions on how to find the
"Protest Zone", as it was not visible either from the Sun Dome, or
from the area where Plaintiffs had chosen to locate themselves across from the
Sun Dome. Plaintiffs respectfully declined.
24. Immediately upon being approached by the USF Police, Plaintiffs placed the
officers on notice of the unlawful characteristics of their request by pointing
out both the Tinker v. Desmoines quote contained on Plaintiffs' placards and
highlighted portions of the reported U.S. Supreme Court decisions, copies of
which were offered to the officers for their review.
25. The tender of the information was deemed by Plaintiffs to be sufficient
to emphasize the clear manifestation that any governmental attempt to restrict
or impede the dissemination of political speech by banishing speakers to protest
zones was clearly unconstitutional and reflective of callous indifference to
Plaintiffs protected constitutional rights.
26. Subsequent to the polite exchange between Plaintiffs and the USF Police,
Plaintiff REDNER was approached by an agent of SUN DOME, INC., and again, although
somewhat less than directly, requested to discontinue communications from the
chosen location and relocate to the "First Amendment Zone." Plaintiff
REDNER and the other Plaintiffs again respectfully declined.
27. Subsequent to Plaintiffs' declination of the request to relocate, Plaintiffs
were arrested for allegedly violating Section 810.09, Florida Statutes, and
specifically charged with "trespass after warning." The arrests of
Plaintiffs were effected by Hillsborough County Sheriff's Deputies.
28. Based on information and belief, throughout all communication and interactions
between Plaintiffs and agents of SUN DOME INC., all communication and interactions
between Plaintiffs and officers of the USF Police Department, and Plaintiffs
ultimate arrests by SHERIFF's Deputies, an agent of the SECRET SERVICE was observing
from a few feet away.
29. At no point in time were Plaintiffs creating a disturbance or interfering
with the rights of others. The sole conduct engaged in by plaintiffs was peacefully
standing at their desired location and expressing verbally, as well as through
their placards, the political speech that they had chosen to communicate to
those present.
30. During all relevant periods of time surrounding the above-described events,
other individuals also carrying placards and political signs (apparently deemed
to be benevolent towards or in favor of gubernatorial candidate Governor Jeb
Bush, or not deemed to be critical of either Bush administration) either communicated
their messages from the same general area and walked directly past agents of
the Defendants and were neither approached nor directed to relocate their activities
to any "First Amendment Zone" by any Defendant or other representative
of any Defendant.
31. The purported Complainant regarding any State charge of "trespassing"
was Kelly Hickman, purportedly acting as a representative of SUN DOME INC.,
the purported lessee of the USF Sun Dome for the event at which the Plaintiffs
were arrested and charged.
32. The gravamen of the charges against the Plaintiffs for trespassing all stemmed
from the Plaintiffs exercise of their sacrosanct First Amendment rights to political
discourse and political speech.
33. Prior to being arrested for declining to be banished to a remote location,
the Plaintiffs again notified both the USF Police and the arresting SHERIFF's
deputies, through the messages contained on their placards and by attempting
to provide case law to the officers.
34. The elements necessary to support the trespassing charges against the Plaintiffs
require that before charging a person with trespassing, there must be a meaningful
and knowledgeable "warning." Additionally, a person with actual ownership
or authority must give any such "warning" over the property purportedly
being trespassed upon.
35. At no point in time did the Plaintiffs receive any "warning" from
a legitimately authorized person.
36. The arrest of the Plaintiffs for attempting to express their political views
in a peaceful and unobtrusive manner was a direct violation of the Plaintiff's
First Amendment rights.
37. On December 27, 2002, Counsel for the Plaintiffs submitted a Public Records
Request to USF, pursuant to Chapter 119, Florida Statutes, for the following:
"1. Any and
all documents establishing ownership of Parking Lot 22E as designated on the
USF University of South Florida Parking Map.
"2. Any and
all Corporate resolutions, minutes, or any other Corporate documents of any
description establishing the authority of Kelly Hickman to act as an authorized
agent Sun Dome Inc.
"3. Any and
all Corporate resolutions, memoranda, notes, photographs or any other statements,
written or recorded, related to the establishment or designation of the areas
provided as “Protest Zones,” for any event held in the Sun Dome on
November 2, 2002.
"4. The bylaws
for Sun Dome Inc." A copy of the Public Records request is attached hereto
as Exhibit "A."
38. On January 14, 2003, the Associate General Council for the
University of South Florida responded to the Public Records request by providing
a packet of information, purportedly in response to the above specific Public
Record requests. A copy of all materials provided pursuant to the Public Records
request is attached hereto as Exhibit "B."
39. Based on the documents provided, neither Sun Dome, Inc., nor Ms. Hickman,
had any actual authority to base any trespass complaint on any area contained
in Parking Lot 22-E.
40. In reliance on both the lack of any legitimate authority to issue a trespass
warning, as well as the First Amendment implications of the conduct described
above, the Plaintiffs, as State Court Defendants, filed Motions to Dismiss their
charges, alleging that their prosecutions manifested a denial of due process
and a denial of protected First Amendment rights, and respectfully requested
the County Court to issue an Order Granting their Motion to Dismiss.
41. Subsequent to an oral argument held on April 14, 2003, the County Court
issued an Order Granting the Motions to Dismiss, finding that several prerequisites
set forth in the contractual documents establishing the authority of SUN DOME
INC., with USF had not been complied with, and that, therefore, no agent of
SUN DOME INC., had authority to issue a trespass warning. The County Court,
having decided the issue on this technical ground, properly declined to make
any ruling on the constitutional issues involved. A copy of the Order issued
is attached hereto and incorporated herein as Exhibit "C."
42. The arrests of the Plaintiffs, as effected pursuant to the customs and policies
created by the Defendants, in reliance upon a constitutionally impermissible
plan to regulate speech, acted as a complete and total prior restraint of Plaintiffs
ability to communicate their political messages in the manner deemed appropriate,
a right that is guaranteed by the First Amendment of the United States Constitution.
GENERAL ALLEGATIONS SUPPORTING
DECLARATORY AND INJUNCTIVE RELIEF
43. Plaintiffs have a clear legal right to express their political
viewpoints without interference by the Defendants, their agents, servants or
employees. Any such interference may only take place after Plaintiffs have been
afforded due process of law, as guaranteed by the Fourteenth Amendment to the
United States Constitution and Article I, § 9, of the Constitution of the
State of Florida; Plaintiffs have been denied due process of law by the unconstitutional
application of the customs and practices of Defendants at issue herein on a
First Amendment protected form of expression.
44. Plaintiffs’ positions, as set forth in this Complaint, are legally
sound and supported by fact and law. The Defendants' actions, however, have
created a bonafide controversy between the parties, and Plaintiffs are in doubt
as to their rights, privileges and immunities with respect to the conduct at
issue herein. Plaintiffs require, therefore, a declaratory judgment declaring
their rights, privileges and immunities. There is a clear, present, actual,
substantial and bonafide justifiable controversy between the parties.
45. Plaintiffs, as a direct and proximate result of the conduct of the Defendants,
have been and will be required to terminate or to substantially alter their
form of First Amendment protected expression, thus limiting the Plaintiffs'
freedom of expression and causing the Plaintiffs, and all those similarly situated,
severe hardship and irreparable harm if the relief requested herein is not granted.
46. Based on defendant SECRET SERVICE's record of conspiring with municipalities
across the United States to create similar constitutionally impermissible plans
to regulate speech in public forums in conjunction with presidential appearances,
Plaintiffs further assert their rights, and the rights of others similarly situated
who are facing an imminent threat of like impositions of unconstitutional prior
restraints. Impositions capable of repetition, yet evading review.
47. Plaintiffs have no adequate remedy at law. No amount of money damages could
adequately compensate the Plaintiffs for the irreparable harm described herein.
The Plaintiffs in this case wish to exercise a right that is guaranteed them
under the First Amendment to the United States Constitution. Damages, replevin,
attachment nor any other legal remedy will suffice to safeguard the exercise
of that right. In order to constitute an "adequate" legal remedy,
the remedy at law must be plain, certain, prompt, speedy, sufficient, complete,
practical, and efficient in attaining the ends of justice. It is unquestionable
that no legal remedy would ever suffice to properly address state action that
ultimately results in denying citizens rights guaranteed by the First Amendment.
48. Plaintiffs and the public at large will suffer irreparable injury if injunctive
relief is not granted, and Defendants are further permitted to enforce the customs,
policies, practices, and impermissible plan at issue herein. The loss of rights
guaranteed by the First Amendment is so serious that, as a matter of law, irreparable
injury is presumed and, in such an instance involving the loss of First Amendment
rights, damages are both inadequate and unascertainable.
49. The public interest would best be served by the granting of injunctive relief,
and indeed, the public interest is disserved by permitting the enforcement of
customs, policies, and practices that are designed to and do exhibit a callous
indifference to Plaintiffs constitutional rights, which interferes with the
public's rights under the First Amendment to the United States Constitution,
and the Florida Constitution.
50. All conditions precedent to the institution and maintenance of this cause
of action has occurred or has been performed.
51. The acts, practices and jurisdiction of Defendants as set forth herein,
were and are being performed under color of state law and therefore constitute
State action within the meaning of the Fourteenth Amendment to the Constitution
of the United States.
COUNT I. UNLAWFUL PRIOR RESTRAINT AND DEPRIVATION OF FIRST AMENDMENT RIGHTS
52. Plaintiffs re-allege and incorporate paragraphs 1 through
51, supra, as if fully set out herein.
53. As a result of defendants' acts, practices, customs, and consititutionally
impermissible plan for regulating speech, a complete prior restraint has been
effected upon the Plaintiffs, and Plaintiffs have been deprived of their rights
to free expression, in violation of the First and Fourteenth Amendments
of the Constitution of the United States and subject to 42 U.S.C. § 1983.
54. The defendants' acts, practices, customs, and constitutionally impermissible
plan for regulating speech create an unconstitutional chilling effect upon the
Plaintiffs, and Plaintiffs have been deprived of their rights to free expression,
in violation of the First and Fourteenth Amendments of the Constitution
of the United States and subject to 42 U.S.C. § 1983.
55. The Defendants' acts, practices, customs, and plan for regulating speech
were implemented and enforced in a content-based manner, and resulted in a deprivation
of the Plaintiffs' rights to free expression, in violation of the First and
Fourteenth Amendments of the Constitution of the United States and subject
to 42 U.S.C. § 1983.
56. Defendants knew or reasonably should have known that their actions in establishing
and enforcing constitutionally invalid regulations on expressive conduct in
the public forum constituted a violation of Plaintiffs' rights under the First,
Fifth, and Fourteenth Amendments.
WHEREFORE, Plaintiffs request this Honorable Court to declare the acts, practices,
and customs of the Defendants to violate the aforementioned constitutional rights
of the Plaintiffs, to enjoin any further constitutional violations through the
conduct of the Defendants, to award Plaintiffs compensatory, consequential,
and special damages in an amount to be determined by this Court, plus an
award of the costs of this action, attorney’s fees for services provided
in this action, and such other relief as the Court deems just and equitable.
COUNT II. UNLAWFUL ARREST AND DEPRIVATION OF 5TH AND 14TH AMENDMENT RIGHTS
57. Plaintiffs re-allege and incorporate paragraphs 1 through
51, supra, as if fully set out herein.
58. The arrests of Plaintiffs by Defendants was without probable cause, or any
reasonable grounds for Defendants to believe Plaintiffs had committed any offense
and Defendants were fully knowledgeable and aware that their conduct in effecting
said arrests was without any basis in fact, which arrests were effected as an
example of the customs, practices, and policies of Defendants and were undertaken
with callous disregard of Plaintiffs’ constitutional rights.
59. The imposition of the customs, practices, policies, and constitutionally
impermissible plan failed to further any legitimate governmental interest, and
thus violated Plaintiffs' Fifth and Fourteenth Amendment right to due process
of law.
60. Defendants SHERIFF, SECRET SERVICE, USF, and SUN DOME INC. failed to promulgate
and enforce constitutionally valid regulations appropriate for a presidential
appearance, a duty for which they are legally responsible, and that failure
was the proximate cause of the violation of Plaintiffs' First, Fifth, and Fourteenth
Amendment Rights.
61. Defendants knew or reasonably should have known that their actions in establishing
and enforcing constitutionally invalid regulations on expressive conduct in
the public forum constituted a violation of Plaintiffs' rights under the First,
Fifth, and Fourteenth Amendments.
62. As a result of the Defendants' above described conduct and the unlawful
and malicious arrests of Plaintiffs, Plaintiffs were denied their liberty without
due process of law in violation of the Fifth, and Fourteenth Amendments of the
Constitution of the United States and protected by 42 U.S.C. § 1983.
63. The imposition of the customs, practices, policies, and constitutionally
impermissible plan by Defendants is the direct and proximate cause of actual,
consequential, and special damages to Plaintiffs.
WHEREFORE, Plaintiffs request this Honorable Court to declare the acts, practices,
and customs of the Defendants to violate the aforementioned constitutional rights
of the Plaintiffs, to enjoin any further constitutional violations through the
conduct of the Defendants, to award Plaintiffs compensatory, consequential,
and special damages in an amount to be determined by this Court, plus an
award of the costs of this action, attorney’s fees for services provided
in this action, and such other relief as the Court deems just and equitable.
DEMAND FOR JURY TRIAL
64. Plaintiffs demand trial by jury on all issues so triable.
Respectfully submitted,
___________________________
Luke Lirot, Esquire
Florida Bar Number 714836
LUKE CHARLES LIROT, P.A.
112 East Street, Suite B
Tampa, Florida 33602
Telephone: 813-221-9533
Facsimile: 813-221-9175
Counsel for Plaintiffs