IN THE SUPREME COURT OF FLORIDA. P MATTIE LOMAX THE CITY OF MIAMI POLICE DEPARTMENT ET AL. BRIEF OF PETITIONER ON THE MARITS

Transcription

1 IN THE SUPREME COURT OF FLORIDA. P CASE NO. SC MATTIE LOMAX, Petitioner, -vs- THE CITY OF MIAMI POLICE DEPARTMENT ET AL. Respondent. BRIEF OF PETITIONER ON THE MARITS ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT MATTIE LOMAX In Properper P.O. BOX MIAMI, FLORIDA Telephone: (305)

2 TABLE OF CONTENTS PAGE TABLE OF CONTENTS...i TABLE OF CITATIONS...ii INTRODUCTION...iii STATEMENT OF THE CASE AND OF THE FACTS...1 SUMMARY OF THE ARGUMENT...3 ARGUMENT...6 AT COMMON LAW, MALICIOUS PROSEUTION CLAIM DOES NOT ACCRUE UNTIL UNDERLING PROCEEDING TERMINATES IN PLAINTFF'S FAVOR IN BOTH CASE'S CONCLUSION...14 CERTIFICATE OF SERVICE...15 CERTIFICATE OF COMPLIANCE

3 Continues PAGES Section 12, Declaration of Rights, Constitution of Florida, F.S.A...8 States Constitution, Article VI, clause Rule offlorida Bar, 103 So.2d 873, 875 (Fla. 1956)...12 Rule (b) ofthe Florida Rules ofcivil Procedure...9 Florida Statute Florida Statute IV

4 TABLE OF CITATIONS CASES PAGE'S May v. Holley, 59 So.2d 636 (Fla Sapp v. Redding, 178 So.2d 204 (1st DCA 1965)...8 Willingham v. City oforlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006)...9 Mailly v. Jenne, 867 So. 2d 1250, 1251 (Fla. 4th DCA Jackson v. Navarro, 665 So. 2d 340, 342 (Fla. 4th DCA 1995)...9 Fla. Game & Freshwater Fish Comm'n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996)...10 State v. Palm Beach County, 89 So.2d 607, 612 (Fla. 1956)...10 Fundingfor Criminal Justice, 639 So.2d 972, 973 (Fla. 1994)...10 Ray v. Mortham, 42 So.2d 1276, 1290 (Fla. 1999)...11 State offlorida v. Stepansky, 761 So.2d 1027, 1031 (Fla. 2000)...11 State v. Dixon, 283 So.2d 1, 23 (Fla. 1973)...11 Irvin v. Dowd, 359 U.S. 394, 404 (1959)...11 Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)...13 Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000)...17 Florida Bar Rule (c)(5)...3 Florida Rule (F) Violates Florida and Federal law

5 IN THE SUPREME COURT OF FLORIDA CASE NO. SC MATTIE LOMAX, Petitioner, -vs- THE CITY OF MIAMI POLICE DEPARTMENT, ET AL. Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF PETITIONER ON THE MERITS INTRODUCTION This cause is before the Court on a petition for discretionary review. References to the Record transmitted by Mattie Lomax in regards to the Third District Court of Appeal Record are indicated parenthetically by the letter "A" followed by the page number. All emphasis is supplied unless the contrary is indicated. v

6 STATEMENT OF THE CASE AND OF THE FACTS L INTRODUCTION On August 16, 2008, Lomax was stopped by Officer Jorge Loo and the City of Miami Police Department, Officers Upon the violation Lomax for crossing a non operating rail road tracks in which the are no vehicles running there. She was crossing the rail road track in which other persons were crossing the tracks. Officer Jorge Loo drove his City of Miami Police car around on the other side of the tracks. Officer Loo, jumped out of the Police vehicle and clip the hands cuffs on Lomax, stating that she was broking the law. Lomax stated to Officer Loo that other person was cross too. He stated, don't worrier about them, you just worrier about your self. Lomax was taking to Miami Dade County Jail where she steady and the night in jail and was released the next day in favor of Lomax. Malicious prosecution claim does not accrue until underlying proceeding terminates in Plaintiffs favor/ See Appendix A - 3. The Street is a dead end street in which the people in this community use to cross over on the other side for going to the metro mover or just shopping in the area. On April 17, 2008 Officer Loo approach Lomax and cause a complaint arrest affidavit and hand cuff at the same location as she was going to catch 1

7 the bus. Officer Loo droved around on the other side of the rail roads tracks and begin to harass Lomax, asking her personnel questions. Lomax ask Officer Loo to call for his sergeant? Officer Loo, got out of his police car in. a hissing motion and stated that, yes you are being a wises, guy, get up, as he put the hands cuffs on Lomax in which his police car face east bound on a one way street, as his car face's East bound on NW 17* Street and Miami Ave. Officer Loo put Lomax in the back set of his police car. Officer Loo put on a pair of black groves while Lomax was in the back sit of the police car hand cuff. Lomax personel property was still on the side walk of the Street, Offer Loo was back and froth from his police car talking to Officer Eric Saavedra on his cell phone as Lomax looked on with out another Officers at the location. Offer Loo threaten to go by Lomax house to drop her personal Property at her house, she stated that it was all right to bring the items to the police station. Officer Loo stated that if he bring the items to the station that they would keep the items. Lomax stated that that would be ok. Officer Loo demand that he was going by Lomax house. Lomax stated, Sir don't go by my house because if the people see me like this that they would brake into my house. Officer Loo, repeatedly, singing to Lomax, your going to jail, Your going to jail, waiting in the back set of the City of Miami Police car. 2

8 Lomax was taking to the City of Miami Police station and search on the out side on the parking lot of the police station, by a black female officer and drove around in the front ofthe police station and release on the side walk in public view. See Appendix A SUMMARY OF ARGUMENT Elements of a False Imprisonment Claim All states have false imprisonment laws to protect against unlawful confmement. To prove a false imprisonment claim in a civil lawsuit, the following elements must be present: There must have been a willful detention; The detention must have been without consent; and. The detention was unlawful. The errors in procedure in this matter, singularly and collectively, are of such magnitude that given the age of this matter, In particular, (i) this matter is a "quasi-criminal/ civil" matter and thus to be accorded the substantial procedural rights attendant thereto, (ii) the failure to permit petitioner to call witness and obtain documents violated the Fifth and Sixth Amendments, (iii) the refusal to continue the Final Hearing was an egregious abuse of discretion by the Courts, (iv) the Third District orders was plain error and (v) the behavior shown here are label of" unfair and impartial" for her and thus denied petitioner such a tribunal. The substantive errors are just as plain. Simply put, petitioner did 3

9 support the allegations was clearly establishes by the record and such order (i) was issued as frivolous filing (ii). Likewise, petitioner did not violate Rule as none of her filings were "frivolous" to the cited court order to that end fails. Accordingly, this Court must now (i) recognize that petitioner is blameless and has been harmed long enough by the Florida Courts' vindictive and false accusations against petitioner and (ii) thus dismiss her Complaint with prejudice. Why Lomax should not be sanctioned for frivolous filing, according an intentional tort is one in which the actor was judged to have possessed intent or purpose to cause injury whether expressed or implied. This means that an intentional tort has numerous components, all of which must be proven by a Plaintiff/ Defendant if the suit is to prevail. The Components of intentional torts that must be proven are as follows: The act was committed by the Defendant/ Respondents. The act was deliberate and can be shown to be such due to the fact that the Respondents had to have known of the potential consequences of the act. The resulting harm was actually caused by the act. Clear damages can be shown to have resulted from the act. Under this standard, Lomax is entitled to a hearing on her motions. 4

10 No Evidentiary Hearing. The order of the courts dismissing Lomax complaint with prejudice was improper in that there was evidentiary facts before the Courts reference to. Lomax complaint in which terminates in Lomax favor. The sufficiency of the complaint was a issue and there was present a genuine issue of material fact which would provide for the matter to be disposed of on an argument for summary judgment. The allegations set forth in the complaint against Respondents can stand merely on the presence of certain documentations and photographs that only hearing evidentiary testimony could a valid determination be made as to whether or not the Petitioner had met is standard ofproof. The photographs in question were aspect ofthe charges brought against Lomax. The actions of Respondents reliance upon the photographs are all crucial aspects relating to the alleged charges of misconduct, will be crucial arguments centered around the existence ofthe photographs in question of the officers engaging in misconduct and failure to train personnel in proper law enforcement techniques. Discriminatory harassment; improper stops, searches, arrests, or failures to provide service based on impermissible criteria such as race, national origin, or gender; coercive sexual conduct; and retaliation against citizens 5

11 alleging misconduct. In such cases an order of dismissal with prejudice should indicate the reasons which motivated the actions of the court. May v. Holley, 59 So.2d. 636 (Fla. 1952). In the instant case the Courts order of dismissal is void of the reasoning upon which the complaint herein was dismissed with prejudice. ARGUMENT I. STANDARD OF REVIEW Pursuant to Florida Bar Rule (c) (5) Burden "Upon review, the burden shall be upon the party seeking review to demonstrate erroneous, Unlawful, or unjustified. II. PROCEDURAL ERRORS A. RULE 3-7.7(F) VIOLATES FLORIDA AND FEDERAL LAW The procedural rights attendant upon this proceeding are determined by the nature of this proceeding. This Court has re-def'med the nature ofthese proceedings as "a quasi-judicial administrative proceeding." Rule 3-7.7(f) (1). This Court by so doing has violated both Florida and Federal law thereby denying to Petitioner her fundamental procedural rights. Malicious prosecution is the malicious institution of unsuccessful Criminal/ Civil proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every 6

12 person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process ofthe court by wrongfully setting the law in motion on a criminal charge of civil issues. The foundation lies in the triangular abuse ofthe court process ofthe court by wrongfully setting the law in motion and it is designed to encourage the perversion ofthe machinery ofjustice for a proper cause the tort of malicious position provides redress for those who are prosecuted without cause and with malice. In order to succeed the plaintiffmust prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff's favor. It is necessary to prove that damage was suffered as a result ofthe prosecution. In an action of malicious prosecution the plaintiffmust prove: 1) That she was prosecuted by the Respondent/Defendant. 2) That the proceeding complained was terminated in favor of the present Petitioner/Plaintiff. 3) That the prosecution was instituted against without any just or reasonable cause. 4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention of getting the law into effect, but with an intention, 7

13 which was wrongful in fact? 5) That she suffered damage to her reputation or to the safety of person, or to security of her property. Florida Statute False imprisonment; aggravating circumstances, (1)(a) The term "false imprisonment" means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will. IH. THE FLORIDA LAW In the seminal case on this question of what procedural rights are to be accorded in a criminal/ civil proceedings, this Court when faced with an invoked her Fifth Amendment right to refuse to answer questions regarding false arrest and imprisonment set and recognized nature of A hearings and the procedural due process necessarily attendant upon them. The "Adoption of the rule as proposed would, in the opinion, jeopardize rights secured by Section 12, Declaration of Rights, Constitution of Florida, F.S.A., as well as the guaranties embraced in the Fifth Amendment to the Federal Constitution. The provision of Rule (b) ofthe Florida Rules of Civil Procedure permitting involuntary dismissal only after the party seeking affirmative relief has completed the presentation of her evidence has been said to be too 8

14 clear and unambiguous to need judicial construction. Sapp v. Redding, 178 So.2d 204 (1st DCA 1965). In Sapp the court held that the involuntary dismissal of a plaintiffs cause at a trial because of insufficiency of evidence, before she had completed the presentation of her evidence, would constitute reversible error as being contrary to due process of law and to fundamental principles of the administration ofjustice. The court further held that the plaintiff is entitled to present admissible evidence in an attempt to prove the cause of action she has alleged, even though the testimony of her first witness may indicate that she has a weak case or none at all. THE FALSE ARREST CLAIMS Although the Petitioner/ Plaintiff is entitled to a new trial as to the Respondent/ Defendants false arrest claims, the court should instruct the trial court to reconsider the viability of the false arrest claims based on the exclusion of the inadmissible evidence and the un-rebutted admissible evidence. False arrest is "the unlawful restraint of a person against that person's will." Willingham v. City oforlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006). Probable cause is an affirmative defense to a false arrest claim. Mailly v. Jenne, 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004); Jackson v. Navarro, 665 So. 2d 340, 342 (Fla. 4th DCA 1995). Probable cause exists 9

15 when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged. Mailly, 867 So. 2d at 1251; Fla. Game & Freshwater Fish Comm'n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996). Probable cause must be judged by the facts that existed at the time of the arrest, not evidence subsequently learned or provided to the prosecution. Mailly, 867 So. 2d at 1251 ("Probable cause is judged by the facts and legal state of affairs that existed In sum, a section 1983 plaintiff must always base his claim on the violation of a specific federal right. Where the right said to be violated is the Fourth Amendment, the plaintiff must establish a concrete violation of that right. When the seizure is part ofthe institution of a prosecution (that is, when the Fourth Amendment violation is of the kind making a section 1983 claim based on the violation analogous to the tort of malicious prosecution), the plaintiff may properly wait to sue until the prosecution terminates in his favor. And, also under analogous malicious prosecution principles, injuries caused by the unlawful seizure may include those associated with the prosecution. Applying these considerations to the allegations in Lomax's complaint, THE FEDERAL LAW Regardless of what this inferior Court may deem the law to be under 10

16 Florida jurisprudence, this Court is prisoner to the Supreme law of this land. United has invaded the province of the "organic law" of this State - something it is powerless to do and is a bold usurpation of power never. delegated to this branch by the People. Accord: State v. Palm Beach County, 89 So.2d 607, 612 (Fla. 1956) ("that the people in their wisdom wrote the 1930 restriction into the organic law. It is not for us to question their wisdom.); Advisory Opinion to Atty. Gen. Fundingfor Criminal Justice, 639 So.2d 972, 973 (Fla. 1994) ("The single- subject requirement is a rule of restraint. It is designed to insulate Florida's organic law from precipitous and cataclysmic change."); Ray v. Mortham, 42 So.2d 1276, 1290 (Fla. 1999)"It is the will of the people to make a change in their organic law, as expressed through their vote on the initiative ballot, and the importance of giving effect to the change in law which was actually voted on by the people, rather than some judicially crafted change.") Yet here, by "judicially crafted change" coupled with the usurped benefit of ignoring stare desists, this Court has changed the organic law removing the "safeguard[s] wrapped in these provisions of organic law."nonetheless, if federal law has preempted state law, either expressly or impliedly, the Supremacy Clause requires state law to yield." State offlorida v. Stepansky, 761 So.2d 1027, 1031 (Fla. 2000). "Upon the State courts, 11

17 equally with the courts ofthe Federal system, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States, whenever those rights are involved in any suit or proceedings. before them. Consequently, it is the duty of State Supreme Courts to follow the guidelines announced by the Supreme Court of the United States in construing Federal Constitutional rights." State v. Dixon, 283 So.2d 1, 23 (Fla. 1973). States Constitution, Article VI, clause Accord: Irvin v. Dowd, 359 U.S. 394, 404 (1959)("the obligation which rests upon 'the state courts, equally with the courts of the Union, to guard, enforce, and protect every right granted or secured by the constitution of the United States"). "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law ofthe land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding" upon those rights guaranteed to Petitioner under the U.S. Constitution. Accordingly, Respondent is entitled to those procedural rights secured by the federal Constitution notwithstanding this inferior Court's pronouncements to the contrary and upon these rights this Court must public 12

18 ally resolve Petitioner claims to procedural violations which require to quash orders of this matter. PETITIONER WAS ENTITLED TO A JURY TRIAL In her Answer, Petitioner demanded "a trial by jury of the issues raised by the pleadings and so triable", or, alternatively, an advisory jury. Clearly, criminal/ civil defendants have a fundamental right to jury trial and infringement of right is fundamental error. See: (Fla.1985). Given that this is a "quasi-criminal/ civil" proceeding, the novel question arises as to whether Respondent was similarly entitled to a jury trial as her requested. This Court should reverse the decision entered by the Third District Court of appeals because the delayed discovery doctrine does apply to delay the accrual of the causes of action in this case. Additionally or alternatively, Lomax facts and the accrual of the causes of action in this case should be determined by the applicable Florida court and the subsequent interpretation of the delayed discovery doctrine are questions of law to be reviewed de novo. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)("The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo."); Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000) ("The standard of review for a pure question of law is de novo."), cert. denied, 121 S. Ct (2001). 13

19 Florida Statute False imprisonment; false imprisonment, aggravating circumstances also would state as follows: (1)(a) The term "false imprisonment" means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will. In the instant case the complaint was dismissed without Lomax having been able to call a witness. Even with photographs, Lomax should have been afforded the opportunity to present testimony as to the events that transpired in regards to the alleged misconduct in an attempt to establish the alleged violations. Such an opportunity would allow the courts to judge the full facts and the credibility of the witnesses. A dismissal in this circumstance only presupposes that the Complainant was unable to meet its burden of proof. Pro se legal representation means advocating on one's own behalfbefore a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiff in civil cases, and when one is a defendant in criminal of civil cases. The Third District Court error on it's order. CONCLUSION Based on the foregoing, Petitioner, Mattie Lomax, respectfully requests this Court to quash the District Court's decision and the Circuit Court of the 14

20 11 ' Judicial Circuit in and for Miami-Dade County, Florida in this case, and granting to Lomax such other and further relief as this Court deems just and Proper, Lomax request this court to vacate the orders from the lower court and remand for further proceedings. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to John A. Greco, Asst. City Atty, 444 S.W. 2 d Avenue, Suite 945, Miami, Florida 33130, this th day of January, MATTIE LOMAX, PRd 5E In Proper per P.O. Box Miami, Florida Telephone No: (305)

21 CERTIFICATE OF COMPLIANCE REGARDING TYPE SIZE AND STYLE I HEREBY FURTHER CERTIFY, this day of January, 2013, that the type size and style used throughout Petitioner's Initial Brief is Courier New 14-Point Font. By:. Petitioner, pro se 16