Nov. 23 motion in federal court cites lack of standing and inappropriate use of supporting material among its assertions
On Nov. 23, attorneys for the City of Sarasota filed a motion in federal court in Tampa, seeking dismissal of a lawsuit the Sarasota chapter of the American Civil Liberties Union (ACLU) Foundation of Florida filed against the city and Police Chief Bernadette DiPino in late September on behalf of several homeless defendants, The Sarasota News Leader has learned.
Sarasota attorney Andrea Flynn Mogensen had filed an amended complaint against the city and DiPino on Nov. 9 in the U.S. District Court for the Middle District of Florida. It added two more homeless individuals to the list of plaintiffs. The original lawsuit was filed on Sept. 30 in the 12th Judicial Circuit in Sarasota. However, City Attorney Robert Fournier sought the switch to federal court. That Notice of Removal was filed on Oct. 6 in the 12th Circuit.
Michael Barfield, vice president of the ACLU Foundation, told the News Leader in early October that the city has inadequate lodging facilities for homeless people, which results in many of them sleeping out of doors. Yet, the city criminalizes that behavior through Section 34-41 of the City Code, the complaint points out. Barfield has been an ardent advocate for the establishment of a homeless shelter in Sarasota County, as he made clear during the Nov. 6 joint meeting of the City and County commissions to address chronic homelessness in the community.
Former Sarasota County Public Defender Adam Tebrugge also is an attorney of record in the case, acting on behalf of the ACLU Foundation of Florida.
Like the original, the Amended Complaint says each of the plaintiffs fears he or she will be arrested by the Sarasota City Police Department “and criminally prosecuted for lodging out of doors or other criminal offenses for the life-sustaining activity of sleeping.”
The suit references the City and County of Sarasota’s Consolidated Plan, which the two local government bodies submit jointly to the U.S. Department of Housing and Urban Development every five years. (See the related story in this issue.) The current plan, valid through Sept. 30, 2016, “identified a goal of developing a ‘viable alternative to arrest and incarceration’ within the city of Sarasota and Sarasota County ‘to encourage chronic homeless to choose treatment over incarceration,’” the lawsuit says, quoting the plan.
In the Motion to Dismiss, Bradley S. Bell and Douglas J. Collins of the Bell Law Group in Tampa, acting on behalf of the City of Sarasota and DiPino, says the claims against the police chief “should be dismissed for failure to state a cause of action based on the theory of duplicity.” It cites a June 2015 ruling by the U.S. District Court for the Middle District of Florida in Blossom v. City of St. Petersburg, which said that when a police officer is sued in his or her official capacity, “the suit is simply ‘another way of pleading an action against an entity of which an officer is an agent.’” That decision cited another federal case as precedent.
The motion for dismissal further questions the standing of four plaintiffs in the first two counts of the complaint, citing a 2004 case that says a person “seeking injunctive or declaratory relief must allege both an injury and a real and immediate threat of future injury in order to have standing to pursue such prospective relief.”
On that point, the motion argues that the Amended Complaint says three of the plaintiffs “‘do not currently reside on the streets’ and ‘currently [have] a primary nighttime residence …’”
“Additionally,” the motion says, “numerous allegations set forth in [the Amended Complaint] should be stricken based upon immateriality and impertinence. In regard to that section, the motion points to a total of 360 pages of exhibits included with the Amended Complaint. Among them is the 2011-16 Consolidated Plan; a report delivered to community leaders in November 2013 by nationally known homelessness consultant Robert Marbut — whom the city and county hired together that same year; and the 2015 Point-in-Time Survey numbers for Sarasota County. The Amended Complaint cites the latter figures as its source in saying “there are at least 1,365 unsheltered homeless persons in Sarasota County, Florida,” and more than 75 percent of them “are located within the City of Sarasota, Florida.”
“The only purpose the aforementioned allegations serve is to obfuscate the material issues of this matter and cause unnecessary effort by Defendants and the Court in addressing the substantive allegations of the Amended Complaint,” the motion argues. Therefore, it asks the court to strike the allegations related to all that material.
The motion also points to the inclusion in the Amended Complaint of a section titled “Other Police Conduct,” which, the motion continues, “makes general allegations about police activity but makes no allegations about actions involving any of the plaintiffs in this action.”
Other legal arguments
In another claim, the motion says that in Count II of the Amended Complaint, the plaintiffs seek “‘a temporary restraining order and/or preliminary and permanent injunction …’” However, the motion continues, the plaintiffs’ prayer for relief following Count II “fails to seek any form of injunctive relief.” Instead, it asks for the same relief requested in Count I — “Namely, Plaintiffs seek declaratory relief, compensatory damages and attorneys’ fees.”
The motion adds, “Based on the foregoing, as pleaded, [the city and DiPino] are not aware of what relief Plaintiffs actually seek in Count II of the Amended Complaint,” so that count should be dismissed.
The motion also argues that Count III of the Amended Complaint, which deals with the city’s panhandling laws, “is a stand-alone cause of action … wholly unrelated to the allegations set forth in the Amended Complaint …” Therefore, if the court does not dismiss that count, the count “should be severed” from the Amended Complaint.
Finally, the motion asks that the court “award any further relief [it] deems necessary and appropriate.”
The case has been assigned to Magistrate Judge Julie S. Sneed, court records show. Those records also indicate that Sneed, instead of a jury, will rule in the case if it goes to trial.