It may be okay with Judge Susan Vernon if Key West cops barge into a private residence and beat up and arrest everybody in sight without a warrant, but it's not okay with a panel of three District Court of Appeals judges.
Back in 1994, four police officers entered the White Street home of artist Dick Moody about 3 a.m., without a warrant, and beat up and arrested Moody, his son and two guests visiting for Fantasy Fest weekend. They also roughed up Moody's wife, Kathleen.
Cops said they were responding to a complaint that one of the guests, Steve Brown, 29, had allegedly thrown a beer can at a car.
Moody sued. But the City claimed that the officers had the right to enter the home without a warrant because they were in "hot pursuit" of Brown— even though, when the cops arrived, Brown was inside the house eating a ham sandwich.
Judge Vernon bought the hot pursuit argument and threw the case out of court. The appeals court judges recently reversed that decision.
Here's what the higher court judges said: "When the police arrived at the Moody residence, Brown was already inside. There was no immediate or continuous pursuit of Brown originating outside the house and continuing into the house. There has been no argument that there was any other emergency or exigent circumstances."
In other words, the officers needed a warrant to enter the house. They didn't have one, but they entered anyway, looking for Brown. The commotion woke up Moody— and when he protested the presence of the cops in his home, they beat him up and arrested him, too.
The higher court action reinstated Moody's lawsuit.
KWTN contacted Moody this week after learning about the ruling from a source in the legal system here.
Moody, wearied by his seven-year-long court battle, prefers not to talk much more about what he remembers as the day he learned that not all police were his friends or acquaintances. Looking back, he described it like those television shows of a drug raid at the wrong house.
Moody is the former owner of the Great Southern Gallery on Duval Street and had been active in charitable and civic groups, including the Old Island Restoration Foundation and AIDS Help.
In October 1994, he and Kathleen were living in their newly-purchased and remodeled Conch house just behind the Chevron station at Truman. And their 28-year-old son, Wyatt, was visiting for Fantasy Fest, along with two friends he'd known since high school— Brown, a newspaper advertising salesman, and Ray Thorn, 28, a highway design engineer.
The group spent Friday doing remodeling chores, went to dinner and then to a local nightspot for music. The elder Moodys said they took a cab home and were in bed by midnight. The three young men spent some time at Teaser's just a block from the Moody residence, and were walking home around 3 a.m.
That's when Brown said he threw an empty beer can in the air while crossing the service station lot. But William Chamberlin, a Friendly Cab driver, called the cops. He said Brown was throwing full cans of beer at passing cars.
"That's crazy," said Brown. "We were a little hammered, but I didn't throw full cans of beer. The empty can was the end of a beer I got at Teaser's— and I was just tossing it into the air."
Bad words were apparently exchanged between the three men and the cabbie, who Moody would later describe as an apparent cop-wannabe. The cabbie followed them home and called the police.
Meanwhile, Brown, the alleged beer-can-thrower, went into the house to fix himself a sandwich. Thorn remained in the front yard talking to the cab driver, who had parked in front of the house.
Officer Ken Stinson then arrived with blue lights flashing. From that point on, what happened gets a little muddied. Thorn said he yelled a profanity at the cabbie when the police arrived. Or in his words, "I cussed at the cab driver, but when the cop showed up I decided it was time for me to be in the house." However, Stinson said in his report that Thorn "said something profane and was told he was under arrest."
Thorn, who wasn't even the alleged beer-thrower, said that, as he was closing the door to go up to bed, Stinson broke through, grabbed him and threw him into the wall.
"Thorn repeatedly kicked and grabbed at my uniform, punching repeatedly at my face and chest," the officer said.
Meanwhile the younger Moody, who had been awakened by the scuffle, was trying to restrain the family's big Rottweiler. Stinson called for backup.
Wyatt Moody recalled: "Ray was in a fetal position. The cop had dragged him off the porch and was beating his head on the walk. The cab driver was kicking him in the ribs. Ray was screaming."
At that time, the elder Moody and his wife had been awakened and came to the door. "We didn't even know what was happening," said Dick Moody. He said that Stinson then accused him of pushing another police officer who had arrived at the scene.
"I've got a pair of pants half on. I'm holding them and I'm yelling at the cops to please stop. I never set foot on the porch. I stayed inside the house. There were more sirens. I was about to set off our police alarm, when I realized these WERE the police."
"Dad's saying to everyone to calm down," said Wyatt Moody. Dick Moody said he saw two cops jump over the fence. One grabbed his son by the throat and threw him down on the porch. He said he thinks it was Officer Bernard "Bear" Barrios— who also threw him to the ground and knocked him out.
"I'll never forget his face," Moody said, "angry eyes, bulging," he said in a newspaper interview at the time. He said that, when he came to, he was handcuffed.
Both Thorn and Dick Moody were taken to the hospital.
Kathleen Moody was reportedly pushed against a wall by an officer and was also threatened with arrest.
According to the Moodys and their friends, Thorn had cuts behind both ears and bruised ribs on the left side. Dick Moody had a black eye, a cut near the eye and a sore jaw. His son had cuts behind his ears. Kathleen Moody had a bruised and swollen hand and arm.
A longtime monitor of police procedures, said that all the police had to do was get a proper search warrant and the only person arrested would have been the thrower of the beer can. "But some policemen in this town do what they want for the same reason dogs lick their rear-ends . . . because they can," he said.
As it turned out, the can-tosser was the last to be arrested, "without incident," police said, and charged with throwing a deadly missile. Bail was set at $130.
Thorn was charged with resisting arrest with violence, obstructing justice and battery on a law enforcement officer. Bail was $3,060. Thorn would later enter a plea to the reduced charges of simple battery and resisting arrest.
Young Moody was charged with resisting arrest with violence and battery on a law enforcement officer. Dick Moody was charged with resisting arrest with without violence, and obstructing justice. Bail was set for them both at $1,780 each.
"It took seven months for State attorney Kirk Zuelch to finally dismiss all the charges," an exasperated Moody said.
The inevitable civil suit ensued, filed by the Moody family and Ray Thorn against the city and officers Barrios, Stinson, Joseph Tripp, Kurt Allen Stephens; Friendly Cab Co., and their former driver, Billy Lee Chamblin.
"Police conduct in this case was outrageous," said Attorney Richard Taylor, who is representing the Moodys. He said the cab company has already settled out of court, but he did not reveal the specifics of the settlement.
Taylor said he is seeking some clarifications concerning the appeal order, but he said the next step will be to schedule the case for a trial by jury, which Taylor guessed may be heard by the end of the summer.
As a result of the appeals court ruling, the officers involved can now be sued personally.
"In the ordinary case, police officers are entitled to qualified immunity which shields them from personal libility," the appeals court judges explained in their ruling, "In order for plantiffs to overcome the claim of qualified immunity, the plantiffs must show that the defendant officers violated clearly established law which a reasonable person would have known."
The judges reasoned that the officers should have known that they had not been in "hot pursuit" of the man identified as allegedly throwing the beer can and, therefore, that they were prohibited by law from entering the home without a warrant. Therefore, since they did enter the home without a warrant, they lost their claim to qualified immunity.
The appeals court did, however, uphold Judge Vernon's ruling that the City of Key West has no liability for the alleged wrongdoing of the individual police officers.
Meanwhile, attorney's fees— already reaching six figures— continue to mount.
Living in a small town can be tough, says Moody. "Neighbors and others have called me to say they saw the whole thing, but they can't come forward. He said their standard refrain is `we have to live in this town.' They're afraid," he said.