Key West The Newspaper - February 1, 2002

City Budgets Only $20,000 To Defend Chief;

ACLU: Maybe They're Expecting Quick Defeat

AT $250 PER HOUR, THE CITY MAY GET ABOUT 80 HOURS OF FORT LAUDERDALE LAWYER'S TIME. A GOOD ATTORNEY CAN SPEND 80 HOURS ON A DIVORCE CASE

NO LOCAL ATTORNEYS ASKED TO BID ON JOB OF TAKING ON ACLU

by Dennis Reeves Cooper, Editor & Publisher

In an internal memo to the Mayor and City Commissioners, City Attorney Bob Tischenkel said last week that he estimates that it will cost the City less than $20,000 to pay for Police Chief Buz Dillon's out-of-town lawyer.

Key West Citizen reporter Tom Walker got hold of a copy of Tischenkel's memo and ran the information on the front page last Friday.

As you may know, Dillon needs a lawyer because the American Civil Liberties Union (ACLU) is suing him in federal court for wrongfully arresting me last June.

Before the arrest, I had published a series of news stories and commentaries exposing incompetence and corruption in his department. I had also asked the Florida Department of Law Enforcement (FDLE) to force Dillon to investigate allegations that one of his officers lied in court and that an internal affairs investigator covered it up. When the FDLE did, indeed, demand an investigation, I wrote about it— and Dillon had me arrested. I guess I made him really mad.

But, ultimately, Dillon's own investigation— the one he was forced to conduct by the FDLE— confirmed our published allegations. The officer did lie in court (but "unknowingly", Buz said) and that the internal affairs investigator did cover it up (but "unknowingly", Buz said).

In any event, it only took State Attorney Mark Kohl a few days to throw Buz' bogus charges out into the street. It seems that Buz, in his haste to throw me in jail, had based the arrest on an old state statute that had been declared unconstitutional 10 years ago! Duh!

To try to get Buz off, the City has hired Michael T. Burke, of the prestigious— and expensive— Ft. Lauderdale law firm of Johnson, Anselmo, Murdock, Burke & George. Assuming that Burke's fee is somewhere in the neighborhood of $250 an hour, $20,000 will pay for only about 80 hours. A good lawyer can spend 80 hours on a divorce case.

Unless Burke is willing to cut his hourly rate to something close to minimum wage, that $20,000 could be quickly eaten up by motions, counter motions, depositions and pretrial conferences, well before the case even gets to trial.

Attorney Randall Marshall, the ACLU's Legal Director for Florida, questioned how Tischenkel could estimate the cost of defending the lawsuit at this early date. "In any civil rights litigation, the cost can balloon depending on how much of a fight the defendant, in this case the City, wants to put up," Marshall said. "Maybe they're anticipating a quick defeat."

Tischenkel also told the Mayor and Commissioners that hiring a lawyer for Buz was exempt from the competitive bid process. God forbid that any local lawyers would have the opportunity to bid on this job.

Of course, it is possible that Tischenkel and others who make lawyer-hiring decisions just don't think that any local attorneys are capable of going up against the ACLU. And maybe they're right. ACLU attorneys are specialists. The only reason the ACLU exists is to defend the Constitution of the United States against those who would capriciously try to erode the rights of American citizens. ACLU attorneys are aggressive in this pursuit. They won't back off. They won't give up. And they have plenty of time and money.

The ACLU is accusing Dillon of violating the First Amendment (freedom of speech and press), the Fourth Amendment (freedom from unreasonable seizure) and the Fourteenth Amendment (the right to equal protection). The ACLU alleges that Dillon also falsified his sworn affidavit. That's a felony.

Now, that sounds like about 80 hours of work for a defense attorney, doesn't it?

How did the ACLU get involved in this case, anyway? We can probably credit Chief Dillon, himself, for that. After he got a warrant for my arrest, his public information officer sent out a press release, apparently just to try to embarrass me. The story then took on a life of its own. It made headlines around the world. Randall Marshall saw the story in the Miami Herald and called me with an offer to help. The rest is history.

One of the attorneys quoted in the Herald story was James Green, a former Legal Director for the ACLU for Florida. He said: "The unconstitutionality of this statute has been so clearly established for so long that the only possible justification for this can be retaliation, and that's not a permissible objective under the First Amendment."

Way back in October 1990, William Zlock, a U.S. District Judge for the Southern District of Florida, ruled that State Statute 112.533(3)— the statute Chief Dillon used to have me arrested— was unconstitutional. "This statute chills free speech and chills the expression of truthful information," he said.

Zlock is now the chief judge in the Southern District.

Attorney Green is now one of three ACLU attorneys involved in the current lawsuit against Dillon. Attorney Marshall is also an attorney of record, along with Key West Attorney Michael Barnes.

Chief Dillon's defense so far seems to be ignorance of the law. In an interview published in Celebrate on July 13, 2001, Dillon denied that the statute he used to make the arrest— 112.533(3)— had been declared unconstitutional— even though that was the reason the State Attorney declined to prosecute! Maybe if Dillon had consulted with the State Attorney before he went after the arrest warrant, he could have avoided embarrassing both the City and himself.

In that same Celebrate article, Dillon admitted that he didn't bother to check with either the State Attorney or the City Attorney before going after the warrant. "I went to no one," he said.

And this is the guy that City Manager Julio Avael brought in from Georgia to replace Chief Ray Peterson. Go figure.