It's been almost a year since Key West Police Chief Buz Dillon had me jailed. You may recall that he was unhappy with me and my newspaper because we reported that one of his officers had lied in court and that his internal affairs investigator had covered it up. The Florida Legal Director for the American Civil Liberties Union (ACLU) now says that Dillon, to convince Judge Wayne Miller to sign the arrest warrant, falsified the information in the affidavit he took to the judge.
Then, in an effort to embarrass me in the community, he sent out a press release that there was a warrant out for my arrest. We're not making this up. He actually sent out a press release to the newspapers and radio stations— except to Key West The Newspaper, of course. For some reason, he didn't send it to us.
Just a few weeks ago, KWPD spokeswoman Cynthia Edwards said that's it's against departmental policy to release any information about an active warrant. Go figure.
But the release was sent to the Miami Herald. Reportedly, Herald editors were incredulous. They gave the story major space with a banner headline: "Key West Police Chief Has Journalism Critic Arrested". Then, the international wire services picked it up and the story appeared around the world.
I was invited to go on the "O'Reilly Factor", Bill O'Reilly's show on the Fox News Channel last July. O'Reilly said on air that his people tried repeatedly to reach Dillon, "but he won't pick up the phone".
Then, Attorney Randall Marshall, the Legal Director for the ACLU in Florida heard about the arrest and called me. And last December, on my behalf, the ACLU sued Dillon personally and in his official capacity as Police Chief.
The suit charges that Dillon acted maliciously and in retaliation for our criticism of him and his department.
"Nowhere in America should a publisher be arrested for publishing the news," Marshall said.
Dillon is being charged with violating the First Amendment to the U.S. Constitution (freedom of speech and freedom of the press), the Fourth Amendment (freedom from unreasonable search and seizure) and the Fourteenth Amendment (the right to equal protection under the law). The suit also charges that Dillon falsified his arrest affidavit. Falsifying an arrest affidavit is a criminal act.
The suit asks for significant compensatory and punitive damages. This is a federal case and, therefore, Dillon will have to face a federal judge and jury.
A lot of people around town have asked about the status of the case. Here's a report.
The City has hired a bigtime Ft. Lauderdale lawyer to defend Dillon. This promises to cost a bundle— in addition to any damages a jury might award, plus the fees of the three ACLU lawyers who are on the case.
Attorneys have agreed to a tentative schedule, which calls for depositions to be completed in June, followed by the trial.
The depositions should be very interesting in themselves— especially the deposition of Buz Dillon. After the arrest, he talked some talk to the press, and he has given the City Manager and the City Commissioner a line of bull about what he did and why he did it, but this will be the first time that he will be under oath. If he lies under oath, he is subject to perjury charges.
A number of police officers who may have been involved in the planning and carrying out the arrest could also be deposed. And Cynthia Edwards will be asked, under oath, why she sent out that now-famous press release.
It is important to know who Buz may have consulted with before he went after the arrest and how he explained it after the fact. For these reasons, the Mayor, every City Commissioner and the City Manager could be deposed.
Another question: Did Dillon dupe Judge Miller to get his signature on the arrest warrant?
We now know that Dillon swore, in his affidavit, that I violated Florida Statute 112.533(3), an obscure law that made it a crime for a complainant in an internal affairs investigation to disclose the existence and the substance of an internal investigation. I had, indeed, become a complainant in the case after it became apparent that Dillon had no intention of investigating our report about a lying cop and an internal coverup of that lie.
I called the Florida Department of Law Enforcement (FDLE) and asked them to get involved. What's the point of running a newspaper if you're not going to try to make a difference? The alternative was to sit around and watch Mayor Jimmy Weekley, the City Commissioners and the City Manager do nothing.
The FDLE reacted to my complaint by ordering Dillon to conduct an investigation. And when we reported that, Dillon told Judge Miller that I had violated 122.533(3).
But Dillon would soon discover that he had one teeny weeny little problem. Back in 1990, 112.533(3) had been declared unconstitutional by U.S. District Court Judge William J. Zlock. Zlock threw out the piece of the law that made it a crime for a complainant to reveal the existence and the substance of an investigation, saying that it "chills free speech and chills the expression of truthful information".
Now, the legislature did rewrite that statute, leaving out the offending wording. The new statute— which the ACLU says is also unconstitutional— made it a crime for a complainant to "willfully disclose any information obtained pursuant to the agency's investigation".
Not even Buz Dillon can argue with a straight face that I or any of my reporters got the information we reported from inside his FDLE-ordered investigation. All of the information we reported was generated through our own sources. And we think Buz absolutely knew that when he asked Judge Miller to sign the arrest warrant!
But, in any event, allegedly disclosing information from inside an active investigation is not what he charged us with anyway. He charged us with revealing the existence and the substance of an investigation— which is no longer against the law! He charged us with revealing names of the officers and events which we had originally published as part of our series of stories about the lie and the coverup— information that we had generated from our own sources, information that led to the investigation, not the other way around. In other words, he charged me with violating the old 112.533(3)— a law that doesn't exist anymore!
But based on that affidavit, and the subsequent warrant based on that affidavit, I was handcuffed, searched, fingerprinted and jailed for three hours.
When the legislature rewrote the statute, it was given a new number: 112.533(4). But Dillon not only didn't use that number to cite the law that I had allegedly broken, he actually used the language from the old, obsolete statute. He is now saying that this was just a "typo". But, under oath, he will be asked where he dredged up that old statute and why he presented it to Judge Miller as current law.
ACLU lawyers are likely to also ask Dillon if he went to either the City Attorney or the State Attorney before taking his clumsy affidavit to Judge Miller. It is likely that either of those two lawyers would at least have had copies of the most up-to-date statute.
In an interview in Celebrate last July, Dillon bragged that he didn't consult with anybody before going after the arrest warrant. He even personally signed the affidavit, later reportedly admitting to City Commissioner Tom Oosterhoudt that this was the first arrest affidavit he had ever signed as Key West Police Chief. Underlings usually do that for him.
Of course, State Attorney Mark Kohl refused to prosecute a case based on a statute that had been declared unconstitutional. And Dillon was left sucking his thumb.
Speaking out about the arrest at the City Commission meeting last July 3, Commissioner Harry Bethel said it smacked of retaliation. We agree. And we think that a federal jury will agree.
In a an interview in the Key West Citizen as recently as March 11 of this year, Dillon was quoted as saying that the case "should have gone to the criminal courts, but the charges were dropped by the State Attorney. I have no idea why."
But when the State Attorney announced that he would not prosecute, he included this sentence in his statement: "The Chief of Police has been contacted regarding this decision and concurs."
Presumably what this means is that Buz concurred that there was no basis for prosecution— and that what he charged me with was not against the law! So, why then is Buz still going around town saying that he was, somehow, right in arresting a publisher who committed the "crime" of, gasp, telling the truth?
In conclusion: The two officers we wrote about in the story that got me arrested were Lt. Al Flowers and IA Inspector Bob Christensen. The FDLE-ordered investigation subsequently revealed that Flowers had, indeed, lied in court (but "unknowingly", Buz said) and Christensen did find the citizen complaint about the lie unfounded without conducting an investigation.
At the time, we editorially wondered: If they would lie about small things, would they also lie about big things?
Last month, Lt. Flowers was given a choice by the State Attorney: Resign or face charges of official misconduct. He resigned. It seems that he got caught knowingly charging a suspect with a felony he didn't commit. IA Inspector Chris-tensen knew about it, but didn't take any action.
Christensen also knew about the allegations that Officer Michael Beerbower had repeatedly punched two handcuffed suspects in the face. Christensen also allegedly participated in a coverup of this incident that may have reached all the way to the Chief's office. Earlier this month, Beerbower agreed to pretrial intervention and a one-month suspension without pay to avoid going on trial for battery.
Unless there is an out-of-court settlement, Chief Buz Dillon will go on trial here in Key West at the federal courthouse. We'll let you know when the date is set.