The ACLU Lawsuit: Wrongful Arrest Will Cost City Thousands & Thousands of $$$

The following article is reprinted in its entirety. It was published on October 19, 2001 by "Key West The Newspaper" (KWTN) and was written as an editorial by Dennis Reeves Cooper, Editor & Publisher:
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The ACLU Lawsuit: Wrongful Arrest Will Cost City Thousands & Thousands of $$$

City Commissioners Are Culpable. They Failed To Discipline Dillon. Then, They "Ratified" His Illegal Action By Renewing Contract.

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You may have seen the page one headline in the "Key West Citizen" last Saturday: "ACLU Targets Key West for Arrest of Publisher". The story: The American Civil Liberties Union of Florida has announced that it will sue the City of Key West in the wake of Police Chief Buz Dillon´s illegal actions that led to my arrest last June. My "crime": "Key West the Newspaper (KWTN)" has repeatedly uncovered and reported examples of incompetence and corruption in Dillon´s department. And, as you might imagine, Dillon really hates that.

When I heard about the warrant, I turned myself in at the police station. I was handcuffed and jailed. But State Attorney Mark Kohl soon dropped the charges. It seems that, in requesting the warrant, Dillon had cited an obscure Florida gag law that had been declared unconstitutional 10 years earlier!

The ACLU lawsuit could potentially cost the City thousands and thousands of dollars! Just paying the City´s own legal counsel to defend the Chief´s outrageous action will cost thousands and thousands. Then, when the City loses this case, the ACLU´s attorneys fees and expenses will have to be paid by the City -- thousands and thousands more. And then, there could be thousands and thousands of dollars in damages on top of that. And more in other legal expenses the City will have to incur -- all because of Dillon´s senseless action.

Keep in mind that the City Commission endorsed Chief Dillon´s illegal action by not only failing to discipline him in any way but, also, by approving a new three-year contract for him!

But our decision to pursue this action is not only about money. It's about the First Amendment to the Constitution -- which specifically prohibits the making of law that abridges the freedom of the press or freedom of speech. And our decision to sue is about ensuring that law enforcement bullies like Chief Dillon and his ilk are never allowed to do anything like this ever again.

And we're not the only ones who suspect that Dillon doesn't have a clue when it comes to interpreting the meaning of the First Amendment. Here's what Sally Mahon, the editor of the "Key West Citizen," recently said about Buz Dillon: "He does not understand the First Amendment and as long as he fails to understand it, he may as well be living in Nazi Germany."

The ACLU considers this a landmark case in Florida. Three attorneys will work as co-counsel:

* Randall Marshall, the ACLU's Florida legal director.

* James Green, a West Palm Beach attorney who brought the lawsuit in 1990 that resulted in the gag law being declared unconstitutional by a federal judge.

* Key West Attorney Michael Barnes, who has a reputation for successfully fighting for the underdog.

"The unconstitutionality of the law Chief Dillon used to arrest Dr. Cooper has been so clearly established for so long," said Green, "that the only possible explanation for this arrest is retaliation -- and that's not permissible under the First Amendment."

In issuing an opinion against the statute in October 1990, William Zlock, a U.S. district judge for the Southern District of Florida, said, "This statute chills free speech and chills the expression of truthful information."

"Nowhere in America should a newspaper editor be arrested for printing the news," said Marshall.

"The numerous actions of this police chief made this lawsuit inevitable," said Barnes. "This is particularly true since the elected City officials failed to curb his abuses."

How did it get to be this crazy? Let us walk you through the history in some detail, so you will understand just how dunce-like Chief Dillon's action was -- and why the ACLU lawyers are so anxious to pursue this case.

It all began back in May of this year with our publication of a relatively minor story concerning
allegations that Police Lt. Al Flowers lied in court and that Internal Affairs investigator Bob Christensen covered it up.

The story itself started back on October 26, 1996, when Lt. Flowers stopped Rod Macdonald and ticketed him for riding a bycicle at night without a light. Then, he ticketed Macdonald for what some officers call a "pile-on" charge -- failing to notify the Florida Department of Highway Safety & Motor Vehicles (DMV) of a change of address.

In Judge Wayne Miller's traffic court on January 28, 1997, Flowers testified under oath that Macdonald had handed him a driver's license with the address 5115 Little Acre Road, Ebro, Florida, on it. According to a transcript of the hearing, Flowers also testified that Macdonald told him that his current address at the time was General Delivery, Key West. And that's what he wrote on the ticket.

But Flowers could not possibly have seen the Little Acre Road address on Macdonald's license in October 1996 because, in early January, 1997 -- a few days before the hearing in Judge Miller's courtroom -- Macdonald notified the DMV that this was his new address. That address was neither listed in the DMV records on the night Flowers ticketed Macdonald nor was it on the license that Flowers said he saw.

We now know what happened. Never dreaming that Macdonald would protest the "pile-on" ticket, Flowers didn't even bother to write down the address on Macdonald's license the night he ticketed him. So, on the day of the hearing, he accessed the DMV computer and wrote down Macdonad's new address -- then falsely testified under oath that he had seen that address on Macdonald's license in October 1996.

"He flat-out lied," Macdonald said.

Judge Miller threw out the drivers license charge, but Macdonald wasn't satisfied. He filed an internal affairs complaint with the Key West Police Department, accusing Flowers of lying in court.

Internal Affairs investigator Bob Christensen refused to investigate. But he didn't tell Macdonald that. He simply declared the complaint "unfounded".

We confirmed this by filing a public documents request to look at the investigation file. Seeing a virtually empty file, we asked Christensen, "You didn't investigate this at all, did you?"

His response: "No comment."

"Then we'll have to do it for you," we said.

He said, "Have at it."

At this point, the story was no longer Rod Macdonald's little feud with the Police Department. It was about these questions:

* How can citizens ever again trust the results when cops investigate themselves?

* How can citizens ever again assume that Internal Affairs investigations are objective and complete?

* How big does a lie by a police officer have to be before Chief Dillon considers it actionable?

* How long have Flowers and other officers been doing this -- and how long have Christensen, Dillon, and others been protecting them?

It seems obvious to us that neither the City Manager, nor the Mayor nor any of the City Commissioners cared enough about these questions to push for answers. So we took action ourselves. (What's the point of running a community newspaper if you're not going to try to make a difference?)

On May 29, I filed a formal complaint with the Florida Department of Law Enforcement (FDLE), asking for a full investigation of Flowers' alleged perjury and Christensen's alleged cover-up.

The following month, I received a letter from the FDLE notifying me that they had ordered Dillon to investigate my complaint and that he had 45 days to produce a report. We reported that in our June 15 edition and editorialized about it in our June 22 edition.

On the same afternoon that our June 22 edition appeared on the streets, Dillon had me arrested, citing Florida Statute 112.533, which makes it a crime for a complainant in a police internal affairs investigation to publicly report any aspects of the case. (This is the law that had been declared unconstitutional back in 1990.)

Trying to keep a straight face, Dillon convinced Judge Miller to sign the warrant by telling him that the "names and events" that we published on June 15 and June 22 somehow "interfered" with his investigation. But he apparently "forgot" to tell the judge that those names and events had been published at least three times during previous weeks, well before the FDLE ordered Dillon to investigate.

Dillon also "forgot" to tell the judge that all of the "names and events" he listed in his affidavit for the warrant had been previously gathered independently by KWTN from public record and by our own investigation -- and not from inside some confidential police investigation. In fact, there was no investigation at all until my complaint and the FDLE forced Dillon to conduct one! Until that time, Dillon had absolutely refused to conduct a probe, even when we laid out the allegations right in front of his face! And that´s why I went to the FDLE.

Why Dillon really arrested me is this: We refused to back off of our campaign to uncover and report incompetence and corruption in his department. Our forcing him to investigate some of that wrongdoing was the last straw. Pushing through a warrant for my arrest was retaliation, pure and simple.

And that´s illegal!

Buz´sworn statement to the judge that we somehow interfered with his investigation is pure falsehood. (And that´s illegal, too.) The only new information we reported on June 15 is that we had confirmed Macdonald´s story by contacting the DMV (something that Christensen had refused to do) and that the FDLE had ordered an investigation.

We learned about the FDLE order when we were notified on June 6 by Rod Caswell, the FDLE´s Program Director in the Criminal Justice Professionalism Program. His letter, addressed to "Key West The Newspaper," did not include any restrictions on publication.

Of course, in reality, Buz knows that we didn´t interfere with his so-called investigation. We just made him conduct one! And when it was all over, he was forced to admit that Lt. Flowers did, indeed, lie under oath in court -- but "unknowingly" Buz said. And Dillon was also forced to admit that Christensen hadn´t really investigated Macdonald´s complaint before declaring it "unfounded".

Pattern and practice?

* We continue to hear reports that several Key West police officers will be indicted on "excessive force" charges that Internal Affairs officials knew about but failed to investigate.

* A longtime police officer wrote a letter to Mayor Jimmy Weekley and City Manager Julio Avael last August alleging that Chief Dillon uses the Internal Affairs section to conceal perjury by police officers. "Conspiracy is indicated because other officers have participated with the Chief of Police to conceal perjury and to improperly conduct Internal Affairs investigations."

* Dillon still refuses to investigate the bizarre 1997 arrest of two men in the same car for drunk driving. One of the men arrested was Gene Peary, an elected member of the Key West Civil Service Board. Peary said he was a passenger in the vehicle and had not been driving. But at his first trial, a Key West Police officer testified under oath that he had seen Peary get out of the driver´s side of the vehicle. That trial ended in a hung jury.

At Peary´s second trial, the officer testified under oath that he really had not seen Peary get out of the driver´s side. Peary was acquitted.

At which trial did the officer tell the truth; and at which trial did he lie? Dillon won´t investigate and, apparently, neither the City Manager nor any member of the City Commission cares. Our complaint to the FDLE to force an investigation is pending.

Question: If the FDLE does order Dillon to investigate, and if we report that, will Dillon try to have me arrested again?

Another question: How can citizens feel safe from being wrongfully convicted on the basis of police officers´false testimony, if the Chief of Police and the City Commission condone perjury?

Following my arrest on June 22, editors across the country were incredulous. The story hit the wire services and was covered by media around the world. That´s when the ACLU called us. We didn´t call them.

The "St. Petersburg Times" called for Dillon´s badge:

"Even in a town known mostly for its bacchanalian Fantasy Fest and daily sunset celebrations, the police chief´s behavior is outrageous. The Key West City Manager and Commissioners should be embarrassed enough to demand his badge. Dillon´s behavior is inappropriate in a democracy."

The "Key West Citizen" editorialized on June 26: "Chief´s Attempt to Silence Critic is an Abuse of Authority . . . Chief Dillon imperils his position by lashing out at the press in a matter that has much less significance to the community than the chief´s attack upon free speech."

Three days later, the "Citizen" tracked the national criticism of the police chief´s action under this page one headline: "Dillon Assailed Nationally."

I was invited to appear on the O´Reilly Factor on the Fox News Channel on July 9. "We tried to get Chief Dillon on, too," O´Reilly said on air, "but he won´t pick up the phone."

Comedian Dennis Miller ridiculed Dillon on his show on HBO.

So what action did our City Commission take? They approved another three-year contract for Dillon -- in essence, endorsing the arrest.

It now remains to be seen how much money those same Commissioners are willing to spend to defend Dillon´s illegal acts of retaliation.

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To contact Key West The Newspaper for confirmation:
Editor/Publisher: Dennis Reeves Cooper, Ph.D.
422 Fleming Street
P.O. Box 567
Key West, Florida, 33041
(305) 292-2108
e-mail: office [at] kwtn.com