Are there no local attorneys qualified to defend Police Chief Buz Dillon against the American Civil Liberties Union (ACLU) lawsuit charging him with not only violating three amendments to the U.S. Constitution, but also with falsifying his sworn arrest affidavit when he arrested me last June? Apparently not. Reportedly, City officials have hired an out-of-town attorney Michael T. Burke, of the prestigious— and expensive— Ft. Lauderdale law firm of Johnson, Anselmo, Murdoch, Burke & George.
We don't know what Attorney Burke's hourly rate is, but we suspect that it's substantial— maybe $250 per hour. Maybe more. And this case is going to require hundreds of hours of attorney time— not to mention travel, hotel and meal expanses. Burke's final bill could run into the hundreds of thousands of dollars— all because of Dillon's bizarre (and failed) attempt to punish me and this newspaper for continuing to uncover and report incompetence and corruption in his department.
Wouldn't you like to be a mouse in the corner in City Commissioner Harry Bethel's office when Burke's bills start coming in? As you may know, Bethel is the Commission's self-appointed fiscal watchdog.
While we have not spoken to Bethel about this, he is already on the record as saying that Dillon should have consulted with the City Attorney before going forward with the arrest, and that the general public perception of the arrest is that it was retaliatory. At the City Commission meeting last July 3, Bethel said: "Department heads need to use common sense. This incident involved the free press and the Chief of Police. He (Dillon) should have referred it to legal. The City Attorney could have referred it to the State Attorney's Office. A consensus between legal, the City Manager and the Chief would have been able to come up with, maybe, a different decision."
At the same meeting, Bethel said: "What I'm hearing out there from my constituents is not one side or the other, but the perception and the timing. You've got articles in the paper and you've got the action taken by the Chief of Police personally. And the perception out there is, yes, it's retaliatory."
Question: How much City money do you think Harry Bethel will be willing to spend to defend Buz Dillon's outrageously unprofessional behavior? How much do you think the other City Commissioners will be willing to spend?
The good news for the City Commissioners and other taxpayers is that if a jury awards substantial punitive damages, Dillon— not the City— could be personally responsible for that.
How much money do you think the City should spend to defend Dillon? Before answering that question, read on.
By now, Attorney Burke probably realizes that he has his work cut out for him.
First of all, Chief Dillon will have to explain to a federal judge and jury how he could have possibly managed to cite the wrong state statute in his sworn arrest affidavit.
Dillon cited State Statute 112.533(3). The current Statute 112.533(3) says this: "A law enforcement officer or a correctional officer has the right to review his or her official personnel file at any reasonable time under the supervision of the designated records custodian." We're not making this up.
As the ACLU lawyers point out in the lawsuit, there is no way that I could have violated that statute and, in any event, this statute does not provide for arrest or incarceration.
Dillon now says it was a typo. But what really happened was that, in his haste to put me in jail, he apparently used an old statute book to go after his warrant. A very old statute book. In fact, the old law that Dillon used to swear out a warrant for my arrest, 122.533(3), did make it a crime to disclose the existence of an ongoing internal police investigation.
But that law was declared unconstitutional by a federal judge back in 1990!
Reacting to the judge's order, the State Legislature long ago amended the statute, taking out the part about disclosing the existence of an investigation. The new law makes it a crime for a participant in an internal investigation to "willfully disclose any information obtained pursuant to an agency's investigation."
In the lawsuit, the ACLU lawyers argue that the new law is just as unconstitutional as the old one because it unconstitutionally criminalizes the publication of truthful speech and press. And they are asking that it be overturned as part of this case.
But in any event, Chief Dillon, in his sworn affidavit, did not allege that I violated the current statute. To do that, he would have had to charge that I "willfully disclosed information obtained pursuant to the agency's investigation."
I did not do that and Dillon did not allege that I did. Instead, he alleged that I revealed "the names of the accused officers" and that I revealed specific "events."
That's what investigative reporters do— and it's not against the law! What will Dillon plead? Ignorance and incompetence?
It's too late now for Dillon to go back and change the arrest affidavit he filed last June 22. But even if he could, he knew back then that we had been publishing those "names and events" for weeks— since May 11 and June 1, when we published the first two of a series of investigative articles about an officer who lied in court and an internal affairs investigator who covered it up— long before there was an internal affairs investigation into our allegations.
• May 11: "State Attorney Reviewing Allegation That Lt. Flowers Lied In Court." We named names and reported events. And all of our information came from the public record or our own sources, not from any internal investigation.
• June 1: "Internal Affairs Finds Perjury Allegations Against Flowers `Unfounded'— Without An Investigation." We again named names and reported events. And all of our information came from the public record or our own sources, not from any internal investigation.
We published the third article in the series June 8: "Internal Affairs Scandal: Dillon, Christensen Deny Wrongdoing In Perjury Case." We again named names and reported events. And all of our information came from our own sources and the public record, not from inside any internal investigation.
Based on what appeared to us an absolute lack of interest on Dillon's part to investigate the allegations we had laid out for him, I had approached the Florida Department of Law Enforcement (FDLE) in late May, asking that they investigate. Some have questioned the propriety of our getting involved in the story. But our attitude is this: Why even bother to put out a community newspaper if you're not going to try to make a difference?
Following the publication of our June 8 issue, I received a letter from the FDLE informing me that they had ordered Dillon to investigate. The letter included no restrictions on publication. So we published it on June 15, along with a summary of the story we had been reporting since mid-May: "FDLE Now Investigating Police Internal Affairs Scandal Here. Chief Dillon Given 45 Days To Respond To Coverup Allegations."
We again named names and reported events-- information that we had developed from our own sources and the public record, not from inside any internal investigation.
I followed up the next week, June 22, with a page one opinion piece speculating on what Dillon might tell the FDLE: "What Will Police Chief Dillon Tell the FDLE?" That editorial was highly critical of Dillon and his department. I guess we made him mad. He personally went after the arrest warrant that very same day.
In fact, he may have been so mad at me and Key West The Newspaper— so anxious to have me arrested and put in jail— that he falsified his arrest affidavit. That's one of the charges against Dillon in the ACLU lawsuit. That's a felony.
Dillon will also have to explain to the judge and jury why he considered putting me in jail such an "emergency." Why did he not want to take the time to consult with City Attorney Bob Tischenkel and/or State Attorney Mark Kohl? We suspect that both of them have up-to-date statute books.
Of course, it was Kohl who quickly threw Dillon's ridiculous charges down the stairs and out into the street, refusing to prosecute.
And why was Dillon in such a hurry that— for the first time since he has been Chief of Police here— he signed the arrest affidavit personally?
City Commissioner Tom Oosterhoudt was quite concerned about this. Here's what he said at the Commission meeting on July 3, just 11 days after the arrest:
"I never, ever want to see a department head take action of a retaliatory manner against the private sector again. I was very embarrassed for Key West on this, and the fact that this particular person (Chief Dillon) had never signed an arrest warrant since he became Chief really bothered me, and that he decided to do it on this action."
And then there was that press release. How will Attorney Burke advise Dillon to answer questions about why he authorized the sending out of a press release about the outstanding warrant to county news media? It certainly is not normal procedure to send out departmental press releases about the existence of warrants prior to arrests. Do you think that he did that simply to try to embarrass me?
Ironically, his own press release was the reason the story of the arrest made headlines around the world. And that's how the ACLU lawyers heard about it. And that's when they called us— and the rest is history. Way to go, Buz!
The ACLU's lawsuit charges Dillon with violating the First Amendment (freedom of speech and press), the Fourth Amendment (freedom from unreasonable seizure) and the Fourteenth Amendment (the right to