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Tampa Civil Rights Attorney
Michael P. Maddux
Occupy Tampa | Case Dismissed
Tampa Civil Rights Attorney and good friend of the site, Michael P. Maddux won an Occupy Tampa case today. Michael still is working on several more cases where hearings were held this morning. Michael P. Maddux has provided the full text of a typical Motion to Dismiss filed in these Occupy Tampa cases. We should have a ruling from the Court by mid to late April.
IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA
STATE OF FLORIDA, Plaintiff, vs. XXXXXX
CASE NUMBER: 11-CM-XXXXXX , DIVISION: G Defendant.
DEFENDANT’S MOTION TO DISMISS WITH AUTHORITY
COMES NOW, the Defendant, XXXXXXXXX, by and through the undersigned counsel, and respectfully moves this Court to dismiss the case against the defendant on the grounds that Florida Statute 810.09 is unconstitutional as applied. The facts in support of counsel's motion are:
1. On December 1, 2011, at approximately 2300 hours members of the Tampa Police Department responded to the area of Riverfront Park (1000 N. Boulevard, Tampa, FL) alleged to be a City of Tampa Public Park.
2. While on scene, Tampa Police Department Captain B. Duggan made several announcements to all the subjects present inside the park that the park was closed and they needed to leave otherwise they would be arrested for trespassing.
3. On December 2, 2011 at 0035 hours Officer Derrick Warren carne into contact with XXXXXX. XXXXXX was inside of the parked and had locked arms with several other members of the Occupy Tampa Group in an effort to stay in the park.
4. Occupy Tampa is a group that occupies public spaces as a form of political expression and protest against the economic inequalities pervading American Society. As a participant in the assembly that evening, Ms. Bettejo Indelicato was exercising her First Amendment rights. Adequate public space must be provided to the local people across the nation for citizens to peaceably assemble and convene as a community for the purpose of redress and to create solutions from the grassroots level for the problems afflicting this nation.
5. XXXXXX allegedly refused to leave the park, and as a result was arrested and charged with trespass after warning. XXXXXX’s presence and the activities she participated in at the park did not cause the public to be adversely affected in any manner.
MEMORANDUM OF LAW
Florida Statute 810.09 states: "If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person ... the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083." Since the case deals with a public park, there exists no individual owner who would have the authority to issue a trespass warning or issue an order to leave as would exist with private land holding.
In the present case, the park is public land allegedly owned by the City of Tampa. The individual(s) issuing the trespass warning to XXXXXX was/were member(s) of the Tampa Police Department and their authority to issue trespass warnings in city parks is granted to them by the city via City of Tampa Municipal Ordinance 16-6. City of Tampa Municipal Ordinance 16-6 states: “…law enforcement officers are hereby granted the authority to issue trespass warnings in any city park for the purpose of enforcing the provisions of this chapter, a department rule or regulation, or a facility use permit. Law enforcement officers shall issue a trespass warning of one hundred eighty (180) days, which is inclusive of all city parks, or arrest the violator for trespassing pursuant to F.S. ch. 810, or any amended or successor statute...” City of Tampa Municipal Ordinance 16-6 gives the Tampa Police Department the authority to trespass any person from all city parks for 180 days without any due process.
In Catron v. City of St. Petersburg, 658 F.3d 1260 (11th Cir. Fla. 2011) the Court found a statute used in St. Petersburg to authorize members of its police department to issue trespass warnings in public parks to be unconstitutional, since it failed to provide any type of due process to challenge a trespass warning from a public park. The Eleventh Circuit recognized the rights of citizens to enjoy public spaces and agreed that statutes that place unfettered discretion in the hands of police to bar citizens from said places without reasonable due process to be unconstitutional. Id.
For the same reasons as stated in Catron, City of Tampa Municipal Code 16-6 is also unconstitutional as nowhere within it or anywhere else in the code is there a provision for citizens to contest a trespass warning from a public park as due process would demand. Since the present prosecution of XXXXXX under Florida Statute 810.09 relies entirely upon City of Tampa Municipal Code 16-6 to allow Tamp Police Officers to be "authorized persons" any prosecution of XXXXXX should be dismissed as being unconstitutional as applied.
WHEREFORE, the Defendant, XXXXXX, prays this Honorable Court enter an order dismissing the above styled case.
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by regular U.S. mail to: Office of the State Attorney, Hillsborough County Courthouse, 419 North Pierce Street, Tampa, Florida 33602 and original to Pat Collier Frank, Hillsborough County Clerk of Court, Post Office Box 2909, Tampa, FL 33601-2909, on this ______ day of February, 2012.
Michael P. Maddux
Florida Bar Number: 964212
Attorney for Defendant
2102 West Cleveland Street Tampa, Florida 33606
Phone: (813) 253-3363