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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS SOVEREIGN IMMUNITY AND THE JOE‟S STONE CRAB SHOOTING BY DAVID ARTHUR
MIAMI MIRROR – TRUE REFLECTIONS SOVEREIGN IMMUNITY AND THE JOE‟S STONE CRAB SHOOTING BY DAVID ARTHUR

SOVEREIGN IMMUNITY AND THE JOE‟S STONE CRAB SHOOTING BY DAVID ARTHUR WALTERS

Miami Beach City Attorney Jose Smith has stated that he is using the notorious 1985 Florida Supreme Court landmark 4-3 decision in Trianon Park Condominium v. City of Hialeah, that a municipality never has liability for negligent building inspections, to defend the City of Miami against police shooting cases.

“The City‟s sovereign immunity in the Building Department context is so well established,” he claimed, “that nobody has ever had the audacity to challenge it.”

In other words, relying on the analogy between police officers and building inspectors in their exercise of the government‟s police power to ensure the safety of the public, he believes the city, as a so-called sovereign government, should be immune from liability for the negligence of its police officers.

We beg to differ not only from his opinion in respect to negligent police officers but from the court‟s opinion in negligent building inspection cases. Key here is negligence: where there is negligence, there must be liability. All officials should exercise reasonable care in the undertaking of their duties. The failure to hold officials responsible for negligence, which is

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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS some cases is so gross that we wonder why it is

some cases is so gross that we wonder why it is not construed as intentional harm, can only cultivate carelessness and tyranny.

Indeed, building department directors, operations managers, and inspectors are well aware of the court‟s holding in Trianon. Even worse that judicial or common law legislation might cloak a municipality with immunity for its negligence in shooting and other cases, so that police officials, for example, will not worry about legal liability for the training and supervision of police officers, and those officers will not worry about legal liability for collateral damage due to their negligence in using deadly force.

Nevertheless, in determining negligence, a careful distinction should be made between the performance of activities essential to the performance of duties by police officers and building officials. There is a big difference between the duties of a building inspector with pen drawn to fill out an inspection report and a police officer looking down the barrel of a gun.

Indeed, although the Trianon court bestowed sovereign impunity for neglect on building

inspectors after it arrived at the absurd conclusion that the duty the public is not a duty to anyone

in particular, the it stated that, The lack of a common law duty for exercising a discretionary

police power function must, however, be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law. In these latter circumstances there always has been a common law duty of care and the waiver of sovereign immunity now allows actions against all governmental entities for violations of those duties of care.

Smith‟s reliance on police power analogies is hardly novel. For example, take the summary judgment of a Florida circuit court, upheld in 2001 on appeal to the district court of appeal, in Robles v. Metropolitan Dade County, granting sovereign immunity to the county for a nationally televised shooting incident outside Joe‟s Stone Crab Restaurant in South Miami Beach.

Catalino (Nick) Sang was shot to death by police officers on Nov. 2, 1995, after he hijacked a Miami Dade school bus at Blue Lakes Elementary school with 15 people aboard, including 13 developmentally impaired children aged from 5 to 12 years old, and drove it on a harrowing, 90- minute ride to Joe‟s Stone Crab Restaurant on South Beach, where he had worked as a waiter for seven years until he resigned the previous day, stating that he could no longer take the pressure.

Sang, who had emigrated from the Dominican Republic to the U.S. in 1984, owned and ran two Chinese takeout restaurants with his brothers, and was moonlighting at Joes. He was married, the father of two teenage daughters, both honor students, and he went to church every day. He had apparently become upset over tax liens, amounting to $60,000 according to information presented at an inquest.

A restaurant co-worker said Sang had "started freaking out" recently, and that "he threatened us.”

Robert Moorehead, Joe‟s manager at the time, told the Los Angeles Times that he had no idea

what Sang, who kept to himself, was up to. A fellow waiter said Sang was passing around a

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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS quote from Ralph Waldo Emerson‟s essay, „Success,‟ but that he did

quote from Ralph Waldo Emerson‟s essay, „Success,‟ but that he did not think much of it, but maybe it was a “foreshadowing” of what was to come.

Emerson‟s influential essay under that title declares that everyone is good for something, therefore can succeed in that good provided it is worked for: “Men are made each with some triumphant superiority.” Further, Each man has an aptitude born with him to do easily some feat impossible to any other. Do your work.Work for transcendentalists such as Emerson is metaphysical. Works in this world are bound to fall short of salvation, wherefore it is said that faith and not works save.

By all means, then, be patient: “I pronounce that young man happy who is content with having acquired the skill which he had aimed at, and waits willingly when the occasion of making it appreciated shall arrive, knowing well that it will not loiter.”

Interestingly, Emerson quotes the sovereign immunity maxim of lawyers that “a crown once worn cleareth all wearers of defects thereof.” Perhaps one reason for us to be patient with our high court in Florida is that courts and lawyers tend to follow suit instead of taking the initiative:

The gravest and learnedest courts in this country shudder to face a new question, and will wait months and years for a case to occur that can be tortured into a precedent, and thus throw on a bolder party the onus of an initiative.

He believed that Americans were tainted by insanity, “as our bankruptcies and our reckless politics may show. We are great by exclusion, grasping and egotism.” People think they have got success, “but they have got something else, a crime which calls for another crime, and another devil behind that; these are steps to suicide, infamy, and the harming of mankind. We countenance each other in this life of show, puffing, advertisement, and manufacture of public opinion; and excellence is lost sight of in the hunger for sudden performance and praise.

If Sang had read the Emerson essay, he would have learned that the sine qua non of obtaining genuine success, which for idealists with finer sensibilities like Emerson is found in wisdom rather than in manifest objects, is to have a positive attitude: “One more trait of true success. The good mind chooses what is positive, what is advancing, embraces the affirmative.” Therefore “Don't bewail and bemoan. Omit the negative propositions. Nerve us with incessant affirmatives. Don't waste yourself in rejection, nor bark against the bad, but chant the beauty of the good.

We cannot be certain that Sang ever laid eyes on Emerson‟s transcendental effusions on success. The AP report claims that someone said „Success‟ was his “favorite poem,but as the LA Times reported, „Success‟ is an essay, not a poem. Yet another AP report states that the subject matter was a poem: “A Joe‟s waiter who identified himself as Tony said Sang had been edgy lately and had given him and others a copy of the Emerson poem: „The profoundest thought or passion sleeps as in a mine, until it is discovered by an equal mind or heart.‟ „I thought it was strange, but I did not think anything of it,‟ Tony said. „He seemed a little stressed the last couple of days.‟”

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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS That prosaic line is not poetic, is not found in Emerson‟s

That prosaic line is not poetic, is not found in Emerson‟s essay on success but appears on page 172 of Letters and Social Aims published by James R. Osgood and Company, Boston, in 1876, in the chapter „Quotation and Originality,‟ as follows:

“We are as much informed of a writer's genius by what he selects as by what he originates. We

read the quotation with his eyes, and find a new and fervent sense; as a passage from one of the poets, well recited, borrows new interest from the rendering. As the journals say, „the italics are ours.‟ The profit of books is according to the sensibility of the reader. The profoundest thought or passion sleeps as in a mine, until an equal mind and heart finds and publishes it. The passages

of Shakespeare that we most prize were never quoted until within this century; and Milton's

prose, and Burke,' even, have their best fame within it. Every one, too, remembers his friends by

their favorite poetry or other reading.”

The reader may read whatever he likes into Sang‟s curious fascination with America‟s quintessential idealist preacher. As Emerson said in that chapter, “Tis the good reader that makes the good book; a good head cannot read amiss: in every book he finds passages which seem confidences or asides hidden from all else and unmistakably meant for his ear.” The reader should keep in mind Hippolyte Taine‟s observation, in History of English Literature, that “a literary work is not a mere play of the imagination, the isolated caprice of an excited brain, but a transcript of contemporary manners and customs and the sign of a particular state of intellect.

We suspect that Sang had literary aspirations himself, perhaps keeping a journal, but we have no response from his family to confirm that at this writing. However that may be, the deed that sealed his fate was published far and wide.

Emerson was right when he said, “We respect ourselves more if we have succeeded.” We

conjecture that Sang, at 42 years of age, had great expectations for his role in the American Way, was greatly disappointed after fourteen years the U.S., finally losing patience the day he quit his taxing job as waiter. He walked off job around 9:30 that Wednesday night. He asked his daughter

to pray for him the next day, but did not seem disturbed. He then went to church, where he

apparently found cause to rant hysterically. Now distraught over the tax liens, he pushed his way onto a school bus, referred to a bomb and demanded, first of all, to be taken to an IRS office. He

missed the exit to the IRS building, according to one report, but another report has him changing his mind about the destination, ordering the driver to go to Joe‟s, saying he wanted to have lunch.

In any event, the destination changed several times, ultimately to Joe‟s Stone Crab, where to this

very day a porter named Curtis claims that the Director of the Internal Revenue Service is the

most powerful person in the world.

Police did not doubt that Sang was armed. At least they thought he had some kind of explosive device, possibly strapped to his body or in a bag, for he had his hand under his coat when he pushed his way onto the bus, and said he had a bomb. Sang made several threats in transit, including, "So help me, I'll kill someone if I can't talk to the IRS."

A caravan of 50 police cars accompanied the bus over the causeway to Miami Beach as the

dramatic episode unfolded on television via news helicopters. Press accounts as to the length of the ordeal varied, from 60 to 95 minutes. The bus came to a stop four times at Sang‟s request as

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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS it traversed 15 miles. He crouched down and used hostages as

it traversed 15 miles. He crouched down and used hostages as a shield each time. Two children, a

mother and an adult aide were released at one stop.

Sgt. Joseph Derringer, a police sharpshooter, readied himself for Sang‟s arrival, setting himself up 30 feet away from where the bus would come to a halt, and, fearing that Sang was going to shoot him because Sang looked him directly in the eye, took a single shot through the window of the bus with an AR15 rifle, hitting him in the shoulder, apparently dropping him on the spot.

Sgt. Peter Caroddo of Metro-Dade Police Department's Special Response Team said that said the first objective in all hostage situations is to get the hostages out of danger safely. He said Sang was "acting quite erratic inside the bus," and made some sort of motion that made Derringer, an 11-year veteran of Team, think he was going to hurt someone.

Derringer fired and Sang went down, Caroddo said, but he got up again. Three or four officers stormed the bus, some breaking out windows to distract Sang and get a clear view of him while Caroddo and four others rushed the bus.

"I could see his arm. It was bloodied. To keep him now from killing the hostages, we have to make what is called a hasty assault."

Another police officer said he saw Sang move a hand inside his jacket so he fired three fatal 9mm bullets into him. Yet another officer reportedly said that Sang was shot to death at the door of the bus because he was reaching for the bag he claimed contained a bomb. The so-called bomb turned out to be a child‟s portable oxygen tank. Video or the shooting show Sang's bloody body was dragged from the bus and dropped on the sidewalk. After police searched him for the bomb he said he had, Sang was left alone but still alive. His head looked up and to the side and then dropped to the ground. His body was dragged into an alley and left there.

The police were cleared after an eight-hour inquest. The bus driver, Alicia Chapman, collapsed in a heap after recounting the terror she felt. Dade County Judge Steven Leifman said Sang offered police no alternative since he led them to believe a worst-case scenario was unfolding. ``Whether Mr. Sang's threats were real or perceived, by his actions he threatened the lives the most innocent of victims, children with autism and learning disabilities,'' he said.

“This action was not necessary," said Jose T. Sang, one of Catalino Sang's 10 brothers and sisters. "No one In the family knew about It until after it happened. Why didn't they contact us? They had plenty of time. There was no bomb there, just a dead man afterwards."

Manuel Rivera, Sang's friend for 12 years, called the police action "brutal and excessive." "What

a bad thing they've done to this man," he said. "These men were armed and wearing bulletproof vests. They shot him and then they dragged him off the bus."

“Purificacion Sang, the hijacker's widow, sobbed loudly as her brother-in-law Jose Sang stood in front of police and charged, ``You could have avoided all this bloodshed.''

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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS The driver and kids had scrambled out the back exit of

The driver and kids had scrambled out the back exit of the bus as Sang was dragged away. The children were treated to sodas, french fries, and ice cream in the restaurant. Some children were autistic while others had speech impediments. The autistic children‟s lack of understanding of what was going on may have kept them calm on the bus, and they showed little signs of distress thereafter. Brian Morales, a second-grader on board, did say he was afraid the "bad man" might escape and come back to hurt him on a school bus.”I don't want to go on the bus because someone will kill me," he said. "The man was mad. He was yelling. He said shut up to the driver."

One child was treated for cuts caused by flying glass shattered by the sniper‟s bullet. That child was Marlon Robles, whose parents brought suit against the county because the child sustained an injury, allegedly blinding him in one eye. The defense would claim that Robles was not blinded, that the wound had impaired his vision in one eye but that he could see with the aid of glasses.

Michael Cosgrove, an experienced expert in police procedures, special response teams, SWAT units and crisis negotiation, said the police had done everything right except for one thing, taking a shot through the window: “This shooting was reckless and inconsistent with customary police practices.The defense offered that the expert opinion was subjective, and that the court should not second-guess the sharpshooter who was actually there and had to make the call.

Counsel for Robles argued that no violence had occurred, three hostages were released, a phone had been tossed into the bus at Sang‟s request during the long ordeal, and telephone negotiations were in progress. Sure, Sang might have looked the sharpshooter in the eye at Joe‟s, but he had looked at plenty of officers along the way while accompanied by a 50-car caravan of cops, so that was no reason for the sharpshooter to fear for his life and take the shot. No gun was found, and even if Sang had a gun, the risk to the officer would have been acceptable.

The county‟s motion for summary judgment against the plaintiff was granted on the basis that the county enjoyed sovereign immunity against such suits. The district court of appeal affirmed that decision, holding that even if an allegation of negligence were true, serious emergencies thrust upon police officers by lawbreakers or external events requires them to choose between two different evils, and the choice of risk of doing harm to someone no matter what decision they make involves a discretionary act of decision making entitling them to sovereign immunity. Robles appealed to the Florida Supreme Court, stating that the grant of sovereign immunity was erroneous, and that the court should review the case anew as if the question had not been previously decided. The Supreme Court granted jurisdiction, then abruptly reversed itself in 2003 and dismissed the case.

During the course of the case there was some discussion of whether or not a police officer‟s decision to use deadly force is a matter of discretion therefore essential to his ability to protect the public including himself: Robles‟ counsel argued, citing the Trianon exception to sovereign immunity, that “Officer Derringer‟s decision to shoot at Mr. Sang as the bus passed by,” was not a “discretionary” public policy planning level decision entitled to sovereign immunity. His decision to shoot was an „operational‟ implementation of County policy, a secondary decision recklessly made. There is tort liability for this breach of the duty of due care in the handling of firearms.

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MIAMI MIRROR TRUE REFLECTIONS

MIAMI MIRROR – TRUE REFLECTIONS Almost every task no matter how „operational‟ requires some discretion. History

Almost every task no matter how „operational‟ requires some discretion. History teaches us that too much discretion in the hands of neglectful authority can turn discretion into unbearable tyranny. The tyrant should have no excuse that he did not intend any harm.

Now if the operational implementation of legislative policy is so non-discretional and indiscrete or injudicious that the operators and/or their employers should be liable for suits for negligence, perhaps even the city attorney‟s ritual operations should subject its attorneys and the city to liability for negligence.

In any case, negligence should trump sovereign immunity. In the long run, when justice is equitable, the Miami Beach City Attorney should not expect blanket sovereign immunity from negligence liability for police officers, building inspectors, or any other public official, including himself.

In this particular case we believe a jury would find no negligence. We tend to side with retired firefighter Jim Llewellyn, one of the responders on the scene, whom we contacted at home for comment:

“I agree with the general premise that cities should not have some blanket immunity against negligence. They used that argument when I initiated fines against them for non-compliance with code violations. In the Joes case I happen to fall on the side on law enforcement. As it so happens I was on the first fire crew to get to Sang. I turned him over to asses for signs of life while trying to use some caution because it appeared that he had some kind of suspicious „device‟ on the front of his clothes. We quickly applied the EKG and looked for other signs of life. He was dead at that time. This was a case of damned if you do or don't. Better to be damned for protecting all of those innocent kids. We listened to the radio on the way in through the scene and it was very chaotic and charged. In fact we were advised to stay out of the hot zone because they weren't sure about possible explosives et cetera but we swooped in anyway to help get the kids off and away from the bus. After all, this was a busload of kids and it was not a mistake. This guy had them. There was no real way to determine if he was armed or his intent. I do not know a lot about police procedure but anyone who takes the kind of measures that Sang did has to be ready to suffer the consequences. The protection of so many kids has to take priority. If it did not and something happened where the police didn't take the precaution when they had the chance and kids were then harmed imagine the uproar then. And think about how many massacres of kids have taken place since then.

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