HomeMy WebLinkAboutR-80-0033JBA/bbb
1/24/80
RESOLUTION NO. 8'0
33
A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE
TO PAY TO JOSEPH COOK, WITHOUT THE ADMISSION OF
LIABILITY, THE SUM OF $300, 000. 00, AND TO CONTINUE
ALL DISABILITY AND PENSION BENEFITS PROVIDED JOSEPH
COOK REMAINS ELIGIBLE THEREFOR, IN FULL AND COMPLETE
SETTLEMENT OF ANY AND ALL CLAIMS THAT SAID JOSEPH
COOK MAY HAVE AGAINST THE CITY OF MIAMI, ITS
EXECUTIVE OFFICERS, INCLUDING THE MAYOR, CITY
MANAGER, CHIEF OF POLICE NAMED IN THE FEDERAL
ACTION BROUGHT AGAINST THE CITY BY JOSEPH COOK, UPON
THE EXECUTION OF A RELEASE FULLY RELEASING THE CITY
OF MIAMI, ITS AGENTS, SERVANTS, EXECUTIVE OFFICERS,
PAST AND PRESENT, FROM ALL CLAIMS AND DEMANDS.
BE IT RESOLVED BY THE COMMISSION OF:THE ;.CITY "OF MIAMI, FLORIDA:
Section.1. The Director of Finance is hereby authorized to
pay to JOSEPH .COOK, without the admission of liability, the sum
$300,000.00, in full and complete settlement 'of any and all.
claims that .said JOSEPH COOK, or his attorneys,'from prosecuting
the case, of COOK v CITY OF MIAMI ET AL, in:Case 'a:78-3225►
United
States District Court,: Southern District of"Florida, may have
against the City. of Miami,its officials (past and present), upon
the execution of a full release, releasing the;City of Miami,` its
officers (Mayor, Police Chief,.'CityyManager past ;'or` present),
agents and servants from all claims. and. demands,: causes of action.',
attorneys fee and costs. Further, that JOSEPH COOK will cause a
dismissal of Case 08-3225, United States District Court, Southern
District, of Florida, with prejudice-, at his own 'costs.,
Section 2 'It is not the intention to disturb the rights, of
JOSEPH COOK to receive his current and future disability and
pension benefits which, shall continue to be paid as long as JOSEPH
COOK remains eligible under the law.
ATTEST
% RAL
MAURICE A. FERRE
ONGIE, CITY C
PREPARED."AND2APPR VZD ,AY:
JOSE-'8-. ALVAREZ
DEPUTY CITY ATTORNEY
G
0
CIt
D AS T
FORM AND CORRECTNESS
E F..KNOX, JR.
A9 TORNEY
MAURICE A-. FERRE
.M A Y 0 R
CITY COMMISSION
MEETING OF
JAN2 4 80
RESOLUTION NO 8 0 - 3
REMARKS:
IN THE UNITED STATES DISTRICT
COURT IN AND FOR THE SOUTHERN
DISTRICT OF FLORIDA
CIVIL ACTION NO.
JOSEPH
Plaintiff,
-vs-
THE CITY OF :MIAMI, a municipal:
corporation;.. B.; CHARLES OUTLAW,
Individually and as a Police;
Officer, of the City of fiami,
DALE W..:THORP; Individually
and as a. Police Officer of th
City'. of Miami; VINCENT J.
SMITH, Individually and as a
Police <Officer of the City of
Miami; ROBERT W.`CAMPBELL,,
Individually and as a Police,
•Officer of the City of Miami;
BERNARD GAPMIRE, Individua]1y:
and as Police Chief of the
City of Miami; PAUL ANDREWS,
Individually and as City
Manager of the City of 'Miami;'
and MAURICE FERRE, Individu-
ally and as Mayor of the City
of Miami;
section 1983
.COMPLAINT -,FOR 'DAMAGES
JURISDICTION'
.1? !! 2,1 u a
brought pursuant to.:42 U.S.C.
and: Section 1985,
teenth Amendments
of the
is" founded ,upon 28 U.S.
aforementioned
and; the Fourth, Eighth and Four -
United States Constitution. Jurisdiction
action 1331 and. Section 1343, and the
statutory and constitutional provisions. Plaintif
further"invokes the pendent jurisdiction
claims arising. under State. Maw.
2) The amount in
THOUSAND AND 00/100 ($10,000
and costs.
described
II ` PARTIES
3) Plaintiff, JOSEPH COOK, is and wa
in this Complaint a Black citizen cf
and a' resident of the State
County
of this' Court to conside
controversy exceeds the sum of TEN
:00) DOLLARS, exclusive of interest
s at all times
the United States
of 'Florida, residing
in Miami, Dade
Florida. At all times relevant hereto, the Plaintiff,
JOSEPH COOK, was an officer of the Police Department of THE
CITY OF: MIAMI,
assigned ;to a Vice and Narcotic Squad thereof", and
LAW OfrICEO, MCC"AR r. 111:1-IKOW$TZ U DAVIS, h( C
L%ECUT.V6 IIUILOING. MIAMI, /t. A10•. 331137
EXHIBIT "A"
80-33
at the time of the subject 'incident
as the agent, servant and
MIAMI.
9 )'. Defendant, B. CHARLES OUTLAW, was at : all <times
material hereto, an officer of the
Police Department of the CITY
O1'. MIAMI, acting in such capacity as the " ageent,
employee of the Defendant, CITY OF MIAMI. He is sued
and in his' officialcapacity.
5) Defendant, DALE W. THORP, , was a
'servant:, and
all
individually
times material
hereto, an officer of the Police Department of the CITY
acting in such capacity asthe agent, servant and
Defendant,' CITY OF MIAMI. He is .sued individually
official capacity.
).:Defendant,
VINCENT J. SMITH, was a
all times
material hereto, ` an officer of the Police 'Department of
OF IMIAMI, acting in such capacity as the agent.,.
employee of the Defendant,. CITY OF MIAMI. He :is
and ,in his ..official .capacity.
7) Defendant, ROBERT W. CAMPBELL,
material hereto, a probationary officerof
of the CITY :OF MIAMI, acting in such capacity, asp the'. agent,
servant and employee of the . Defendant,;. CITY OF ,;MIAMI.
sued individually and; in hisofficial-.capacit
8)`
was actingin. such: capacity
employee of the Defendant, CITY OF
OF MIAMI,
employee of the
and.. in his
the CITY
servant and
sued individually
-was at.all:times
the Police Department
e is
Defendant, BERNARD GARI•IIRE, was at°call times, material
hereto Police Chief of the CITY OF MIAMI. As such, hewas the
commanding- officer
the _Defendants, OUTLAW, .THORP,, SMITH and
CAMPBELL, and was responsible for the trainiflg
said Defendants.. He was -also responsible;. by
reyul.ations of the .CITY OF ' MIAMI; Police
law
and:: conduct of
for enforcing the
Department :.and -for
insuring. that CITY OF MIAMI Police Officers' obeythe laws of the
State of ' Florida,', and of `the United States. I!e. is
dually and, in his official. capacity.
9). The Defendant,' CITY OF MIAMI
tion, w,i.thin the State' of Florid
sued indivi-
s a:municipal :corpora -
and at- all • times inateria
hereto, employed the. Defendants, OUTLAW, THORP, SMITH
CAI/PBELL,
and the Plaintiff,`JOSEPH COOK, a
LAVI C,FFIC&:;i. M_CrAHY• 1.1F:14KOVIIT'.'
Police Officers, the Defendant:,
DAYt9 30DO;,c f-.CU71VF. CIU ILUING, p1IAM1. FLORIDA 33137
GARMIRE as the Chief of Police, and the Defendant, ANDREWS
as
the City Manager.
10)
The Defendan
!•iAURICE FERRE, Was
at alltimes
is
material hereto Mayorof. the CITY or MIAMI.As, such he
responsible for the overall training and
MIAMI Police. Dep.artnent, including the
GARMIRE, and the Defendants, OUTLAW, THORP, CAMPBELL and SMITH.
He was also responsible by law for enforcingtheregulations of
'the CITY 'OF MIAMI 'Police Department, and for ensuring
obey the regulations
OF 'MIAMI Police. Officers
MIAMI Po] ie Department and the laws of the State of Florida,
and
His deities include responsibility for the
conduct of the CITY OF
conduct . of:the Defendant,
that CITY
of the United States.
conduct:oL the executive and'administratiVe functions of the CITY
s:`official; capacity .
of the CITY OF
OF MIAMI.
e: is sued individually and in hi
11) The Defendant, PAUL ANDREWS, . was at
ial hereto, City. Manager of the CITY OF MIAMI.
responsible for the overall training,.conduct
of the CITY OF MIAMI Police Department, including the
training anddiscipline of the Defendants, OUTLAW,.
CAMPBELL and; SMITH. ANDREWS was also responsible by
enforcing the regulations of the CITY OF FIIAMI Police
andfor ensuring: that CITY OF MIAMI Police
regulations of the CITY OF MIAMI Police Department,
of the State of Florida; ancl of the United States. He
individualli and in his official capacity.
12) That at all times material hereto, and in
actions described herein,
CAMPBELL, SMITH, GARMIRE,
Under color 'of the statutes, ordinances,
all times mater-
As such he was
and; discipline
conduct,
THORP,
law for
Department
Officers obey the
and•the laws
is sued
their
the Defendants , -`OUTLAW, THORP,
color of law, " to -wit:
regulations, customs and usages of the United States,
the State of Florida, pursuant to their respective authority
as police officers, police chief, city manager and mayor of the
CITY OF MIAMI.
ANDREWS- and':.FERRE, . were
acting under
III. FACTUAL ALLEGATIONS
13) On September 3rd, :1974,, the: Plaintiff
and. of
JOSEPH
COOK, was on duty as an undercover police officer for the CITY
Page 3
LAZY O�FIC 1:'3. MCCHAHY. 11.inKOWITZ n DAVIS. :1000 CxECUTIVE OUILDING. A/IAM1. FLOWIDA 33137
OF MIAMI Narcotic and Vice Unit,
and was on assignment` at 7326
Biscayne Boulevard, where a narcotic inve tigation
14) On September
a conference was held
the. purpose of rnaking
was in progres
3rd, 1974, at approximately 4:30 p.m.
at the CITY :'OF MINMI,Police .Department, for
final preparations for a narcotic buy, and
raid at 7326 Biscayne Boulevard., In: attendance at
said meeting
were the Defendants, SMITII, OUTLAW and CAMPBELL: and their super-
visor,: LIEUTENANT • MICHAEL MAHONEY. LIEUTENANT MAHONEY had been
advised by a SERGEANT.PUrTNAM, that
conducting an ongoing
investigation
his narcotic and vice unit wa
at 7326 Biscayne Boulevard —
andthat the investigation was still'
progress.. at that location
which was . adjacent to. Andy 's, Motor Inn.
15) Accordingly, LIEUTENANT: MAHONEY
the meeting that the contemplated
present
advised the Defendan
raid
was to be can-
celled and further.. conveyedto.the Defendant officers
the informe
t.ion that: had been furnished to;him by SERGEANT PUTTNAM,
the ongoing undercover 'investigation.
16)=: Despite having been
relative
soadvised, the Defendant,
SMITH, permitted the Defendants,. OUTLAW
and CAMPBELL,',to establis:
a roof -top surveillance of _732.6 Biscayne ; Boulevar
17) At approximately 10:00 p.m.
•
on September
3rd, 1974,
the Defendant, SMITH, permitted one officer, GARY HOLLAR,;
position a stablish himself behind a fenceat the-'rear.of
Andy 's,Motor I , which .was >'ac3jacent to the site of
investigation, for the purpose of
activities
the ongoing
observing any suspicious
At appro::i.mately 10:.40 p.m. Officer HOLLAR,'> advised
the Defendant, SMITIH, •by •radio that lie had observed Two
Black males under suspicious. circumstances in front'
Motor Inn.
19) Despite the i rnmedi a to proximity of the
(2)
f Andy' s
location to
the site of theundercover:: operation,' and notithstariding
previous cancellation of the proposed raid, ; the Defendant,
approached Ancly's Motor Inn. in. his police vehicle,-
Vehicle,
the
SMITH,
exited-:, the
and :proceeded to :interrogate 'one, JESSE POLITE`,
and the
Page 4
Piainti.fi, JOSEPH 'COOK.
LAW C.WrICI:l1. CH .H'/.. tl l:CIRUWITZ :. DAVIS. :I OOO I=K ECUI-WC 'WILDING. FLORIDA :13137
Sc.
• 20) Having concluded the i.nterrogationY-thei'D.efendant,
. • -
SMITH, perMitted the Plaintiff to enter the lobby ofl-rAndy's r1otor
Inn and to enter a phone booth located therein.
21) During the continuing interrogation of. JESSE POLITE,
the Defendants, OUTLAW and CAMPBELL,had arrived on the scene,.
pursuant to the Defendant, SMITII's, request for additional backup
units and simultaneously Officer IIOLLAP,, who remained behind the
fence, was advising the Defendant, SMITH, by .radiothat he had
the wrong subject.
22) Foll.owing a search,the Defendant., SMITH, discovered
that POLITE had in his possession a vial of drugs and instructed
the Defendant, OUTLAW, to apprehend the Plaintiff who remained in
the phone booth, while suggesting that the Plaintiff might have
had drugs in his [Possession.
23) Pursuant to these instructions, the Defendants,
OUTLAW and CAP1PBELL, entered the lobby and approached the Plaintif
in the phone booth and were then advised by the Plaintiff, who was
wearing civilian clothes, that he was in fact, a police officer.
24) Despite the Plaintiff's identifying himself as a
•
officer,the Defendant, 01.ITI,AW, drew his service weapon, and
pointed it at the Plaintiff, advising him to "freeze".
25) The Defendant, OUTLAW, removed the Plaintiff from
the phone booth, with sufficient force to cause the Plaintiff to
fall to the floor-
26) Subsequently the Defendant, OUTLAW, grabbed the
Plaintiff by the left arm and rear of his shirt collar, and began
shoving him toward the lobby entrance.
27) At all times material hereto, the Plaintiff offered
no resistance, cooperated in all respects, and continually advised
all of the Defendant officers in a manner calculated to preserve
his "cover" that he was in fact a police officer.
28) Upon his arrival on the scene, the Defendant, THORP,
observed the Defendant, OUTLAW, shoving the Plaintiff toward the
lobby entrance, and grasped the Plaintiff's arm, pulling the Plain
tiff forward in a forceful manner, causing the Plaintiff, COoK, andi
the Defendants, OUTLAW and TifoRi;, to fall to the floor.
LAW OFFICCS. Mc:GRAF:Y. 11E11KOW1 rz a DAVIS. :1000 r: ACCUTIVIi 1111ILDINC.. 1.11AW1L F-L01410/4 33137
Page 5
•
20) [laving concluded the i.nterrogation, the Defenc.lant,
SMITH, permitted the Plaintiff to enter the lobby of Andy's Motor
Inn and to enter a phone booth located therein.
•
21) During the continuing interrogation of JESSE POLITE,
...- • ,• , .
the:Defendants OUTLAW and CAMPBELL.hadarrived on -the. scenet
pursuant to the Defendant, SMITH's, request for additional backup
(3717er.H°L1P7wcirernelhed.17ehirld the
• -
,fence, was advising the Defendant, SMITH,- by, radio; that he had
the wrong subject.
22) Following a search,the Defendant, SMITH, discovered
that POLITE had in his possession a vial of drugs and instructed
the Defendant, OUTLAW, to apprehend the Plaintiff who remained in
the phone booth, while suggesting that the Plaintiff mightrnight have
had drugs in his possession.
23) Pursuant to these instructions, the Defendants,
OUTLAW and CAMPBELL, entered the lobby and approached the Plaintif
in the phone booth and were then advised by the Plaintiff, who was
wearing civilian clothes, that he was in fact, a police officer.
24) Despite the Plaintiff's identifying himself as a
police officer,the Defendant, OUTLAW, drew his service weapon, and
pointed it at the Plaintiff, advising him to "freeze".
25) The Defendant, OUTLAW, removed the Plaintiff from
the phone booth, with sufficient force to cause the Plaintiff to
fall to the floor.
26) Subsequently the Defendant, OUTLAW, grabbed the
Plaintiff by the left arm and rear of his shirt collar, and began
shoving him toward the lobby entrance.
• 27) At all times material hereto, the Plaintiff off ered
no resistance, cooperated in all respects, and continually advised
all of the Defendant officers in a manner calculated to preserve
his "cover" that he was in fact a •police officer.
28) Upon his arrival on the scene, the Defendant, THORP,
observed the Defendant, OUTLAW, shoving the Plaintiff toward the
lobby entrance, and grasped the Plaintiff's arin, pulling the Plain
tiff forward in a forceful manner, causing the Plaintiff, cooK anal
he Defendants, OUTLAW and THORP,to fall to the floor.
Page 5
LAW OFFICI:A. Mt:CHARYMIso.cowl r7. a DAVIS. 3000 LXECU,'IVE". itulLoiNr.. MIAMI. FLORIDA 331)7
.
29)•While the Plaintiff was on his knees and while the
Dcfendant THOfd' retained control of the Plaintiff'sright arm,
the Defendant sir1'Ii had entered the lobby and grabbed the left
arm and shoved it into a position in order that the Plaintiff
could be handcuffed
30) While` the Defendant THORP controlled the Plaintiff
right arm and the Defendant SMITH, the Plaintiff's left arm, thr
Defendant CA14PBELL placed his handcuffs upon the Plaintiff.
While handcuffed and on his knees, and being
•
restrained by both the Defendants 'SMITH and THORP, the Plaintif.
head was lifted by the Defendant OUTLA11, . who proceeded to strik
the Plaintiff` with his fist in the face, without provocation
therefor.
Simultaneously, the Defendant THORPgrabbed the
Plaintiff by the throat, forcefully kneed him in the chest area
arid then kicked him in the side.
33) The Plaintiff was subjected to additional blows
and kicking' by the Defendant Officers at this time.
34) After the Defendant CAMPBELL raised the Plaintif:
f by placing his left arm around his neck and holdi.
handcuffs with his right hand, the Defendant OUTLAW
he Plaintiff and raised his knee" in •a forceful
approached t
ri;;ing the plaintiff in the groin. and stomach area
cause the Plaintiff to double over in
with sul.icient force to
pain.
injuries sustained as a direct and proximate result of. the
numerous beatings inflictedupon him by the Defendants OUTLAY,
':a msinta, CAMPilELL_= and ,"_St7IT11.." w • ..
The Defendant OUTLAW then took custody of the
Plaintiff by ga"abbing him by the rear of the trousers and the
,he shirt collar, shoved him out the door,
across the park'
lot to the police vehicle, and forcefully shoved the Plaintif:
into the rear seat of the vehicle causing him to land on the
rear seat on his stomach and chest area.
Foll.owing his .identification as a police office
of the crry OF MI7tMI,the Plantiff was hospitalized for the
on his knees and while the
Defendant THORP retained
the -_Defendant `.SMITH "had entered the
in order that the Plaintiff
could be handcuffed.
30) While the Defendant THORP controlled the Plaintiff
right arm and the Defendant SMITH, the Plaintiff's left arm, the
Defendant CAMPBELL,placed his handcuffs upon the Plaintiff."
31) While handcuffed and on his knees, and being
restrained by both the Defendants SMITH and THORP, the Plaintif
head was lifted by the Defendant OUTLAW, who proceeded to strik
fist in the face, without provocation
control ofthe Plaintiff' right arm,
lobby and grabbed the left
Simultaneously, the Defendant THORP grabbed the
Plairitiff by the throat, forcefully kneed him in the chest area
and then kicked him in the side.
The Plaintiff `was subjected to additional blows
the Defendant, Officers at this time.
After the Defendant CAMPBELL raised the Plaintif:
_ y placing his left arm around his neck and holdi:
on to the -landcuffs with his right hand, the Defendant OUTLAW
approacl..e2 the Plaintiff and raised his knee in a forceful
manner, striking the Plaintiff in the groin and stomach area
with su ficient force to cause the Plaintiff to double over in
Pain-
and >kicking- b
3 4)
nlirgerous
THORP, i.CA.MPBELL and St1I_TH ..
-
35) The Defendant OUTLAW then too}: custody of the
Plaintif by grabbing him by the.rear of the trousers and the
f the shirt collar, .shoved him out 'the door, across the park
lot to the police vchi.cle and "forcefully" shoved. the Plaintif:
into the rear seat of the vehicle causing him to land on the
seaton his stomach and chest area.
3G) Following his .identification as.a police office
the Plaintiff was ho pitalized for the
injuries sustained as a direct and proximate result' of the.
upon him by the Defendants OUTLAtti
Page 7
37) At no, time material hereto did any of
Defendants present at the scene exert any effort in
restrain their fellow officers
from inflicting
the
an attempt Lc
the aforedescribec
tunic' was avail-
beating.upon the Plaintiff, although the oppor y
able forthemto do so.
did the
38). At no time during the entire incident
Plaintiff engage in any behavior which would serve .to provoke
or to justify the beating sustained by him at the hands of the
Defendants..
39).
State Attorney
Following the subject incident, the office of the
conducted an."independent investigation
;and based
upon findings in connection therewith, filed an information
against the Defendant OUTLAW based upon the assault and battery
committed upon the Plaintiff, JOSEPH COOK. The Defendant OUTLAW
jury of his peers of said assault and
its
was convicted by
battery.
40) On October 3rd, 1974,
dismissed fromemployment as a Police Officer of the CITY OF I1IA2•
Police Department for having breached his duty as an employee of
the CITY OF }4IAMI' in the following" particulars:
A) Pulling the P1intiff from
a phone booth
a forceful manner causing him to fall to the'`floor;
S) Pulling the Plaintiff's headup'by the hair
aria swinging his fist in the Plaintiff's. face;.
), Raising his knee in a forceful manner to the;.
Plaintiff's stomach and groin area, causing the
Plaintiff to double over with pain;
Forcefullythrowing the Plaintiff against~;
the side of a police vehicle;
E) Striking the Plaintiff with his fist in the
ribs;
F)
the Defendant OUTLAW was
Forcefully shoving the Plaintiff into the
rear of a police vehicle;
41) Said dismissal was ultimately
sustained after a
full hearing thereon conducted by the Civil Service Board.
Following a full investigation of the incident, t1
Defendant SMITH'S probationary. period was `"extended by GARLAND
WTATr;INS, the then acting Chief of Police, of the .CITY` OF MIAMI
LAW UFFICE5. MCGNAHY, IIEHKOw,T7. A. OAVIS. 3000 EXECUTIVE DUILOIND. MI*M1. FLORIDA. 33137
42)
Police Department for a,"period of Six
o exercise proper control'. over those
detail.
employment
(
6) months for, his failure
officers assigned to his
43) ` The : Defendant CAMPBELL was
as a Police Officer in the CITY
suspended from his
ment by PAUL W. ANDREWS, City Manager, for
months, asa result of his conduct relating
dent,,which conduct, in fur'therance'of a co
the Defendants OUTLAW, THORP, CAMPBELL an
to the D.D.R:B. in_an intentional effort
respective culpability in connection with the
incident..
44) The
Defendants OUTLAW, TIIORP,
.were actingin reek] ess disregard of both
tions
only
OF MIAMI
Police Depart
a period of. .Six (6)
to the subject inci-
nspiracy by and betwee
d SMITH included lying
to .cover up their
aforedescribed
CAMPBELL:and SMITH
constitutional prohibi-
and guarantees under color, of State law,
because
State law.
the Defendants' were clothed
with .t
and trade possible
he authority of
45) As a direct and proximate result of the foregoing
the Plaintiff was injured' in and about his body,,'
suffering pain
therefrom; and his working ability has been impaired
Plaintiff
has incurred medical expenses inthe treatment vf his injuries
and has been rendered less able to lead a normal life. All of th
Plaintiff losses have been proximately caused.: by the activities
of the :Defer d.a its as aforeclescribed, - and _ are;' permanent and; b
their nature will 'continue on into the future..
IV. DAMAGES
46) As a direct and proximate result of the aforede
scribed beating incurred at the hands of the Defendants -OUTLAW,
`1'iHORP, CAMP ELL and SMITH, the Plaintiff was .injured, in and abou
his body, suffered pain therefrom, and his working ability has
been impaired
expenses.: i
less able to lead: a normal life..
48) By reason of the conduct of the befendants,
47) Plaintiff has incurred as a result thereof, medics.
the treatment of his injuries and has been rendered
i.nclu
Pace_ 8
ding the unlawful assault upon the P1aintif f, and the injuries
sustained by him therefrom, Plaintiff ;has been ,totally unable
LAW: Or FICl:i. b1CCRARY. Ur.H1\:i`NIT2.t\'�:.J AVi3000'CX ECU TIJF_ UUI\: UIN::::.- ►Mt rt`o:e+n�'-:�.�.»
(j
date to attend to the duties
On a
of his profession
as'a police officer,
permanent basis ,`and has suffered a dimunition of future
earning capacity.
49) At the time of the incident
bodily health in every respect, wars endowed
Plaintiff enjoyed good
intelligence
with high
and ability his work,and could reasonably
to prosper in the future and:. to receive
therefor.
have been expected
increased` remuneration
50) As a direct and proximate result of.
described incident, the Defendant,; THE CITY OF MIAMI
the Plaintiff as permanently and totally disabled,
51) All of the Plaintiff' s _losses
ly caused by the activities of the
the"afore-
classified
have been proximate
Defendants as aforedescribed
and are permanent, and by their: nature will
future.
continue on into the
V. FIRST CAUSE OF: ACTION'
COUNT I_<:
VIOLATION OF 42"U.S.C."'§1983'AND VIOLATION
OF.-_42_:.U.-S`.C._- §1985
Plaintiff :sues the Defendants, ;OUTLAW,
and SMITH, and as grounds therefore alleges asfollows
THORP, CAMPBEL1
52) Plaintiff realleges and reavers all of those
allegations contained in Paragraphs 1through 51, inclusive
said paragraphs are incorporated herein by reference
set forth.
53)' The Defendants
acting under color .of law
:
and
as if fully
OUTLAW, THORP,_'CAMPBELL' and
SMITH
did wrbngfully,maliciously, and unlaw
fully "'commit an assault upon the -person of the >Plaintiff, In.
'Violation of his civil rights., guaranteed by the Constitution,
and lawsof the United States, and in particular, i
his.privileges and: immunities,
the Due Process Clause of the Fourteenth Amendment.`
54) The Defendants, OUTLAW, THORP,`CAMPBELL and
n violation of
including. equal protection under.
in bad faith,or with a malicious purpo
tiny wanton and willful disregard of
SMITH
e, or in a manner exhibi-
the Plaintiff's :Constitution
alrights, while acting undercolor of law, during
described hereinbefore:
the incident
Page 9
• LAW OFFICI S. MCCRANY, UEMISOWIT2 ' 1h
80 33
DAVIS.. 3000. E1(KC UTIVE UUILDIND. WAN..VLORIDA 33137
1). .Did then and there illegally_ strike,
bruise, batter, beat, and assault t.he Plaintiff
about the head, face, cheeks, .chest, ,ribs, thighs,
and generally about his entire body with their -
knees fists and feet, causing the Plaintiff.
be severely injured;
B) Kneed the Plaintiff in the groin and.
stomach areas;
C). While handcuffed, boclily threw or propelle
the Plaintiff into a CITY OF !'iIAMI Police vehicle,
headlong,: so that his:.. face: and head were' caused . t
pit upon the "floor and sidesof the. police squad
car;
55) : That -the -foregoing actions' on :the par' t: of .the
Defendants, ;:OUTLAW, THORP, CAlMPBELL and. S iITH, constituted an
excessive use of force and were below the reasonable standard.s
care .tobe exercised, on behalf of a police officer in dealing ;.
with members of the public.
56) The force, beatings and physical abuse
upon Plaintiff by Defendants, acting "individually and in ,concer
inf lictec
agreement
lawfully,
conspiracy with with each other, were carried out un,;
- li iously and intentionally, and furthermore, the
Defendants conspired and agreed to undertake any actions neces_
sary-to hide, coverup and: falsely justify
their actions..
57) The :Defendants, OUTLAW; THORP, CAMPEELL and
SMITH, cvsl'fully , unlawfully and wrongfully beat;.: bruised`,;
einjured y priving .:him of hi:
wound�d and ` the ::Plaintiff,thc�reb de
rights, privileges and immunities secured by the Constitution,
and laws of the United States, in that the -unseasonable,
unnecessary and..: unprovoked assault and:use of, excessive force
by the Defendants, OUTLAW, THORP, . CAMP}3ELL and SMITH, operate
to deprive. the Plaintiff of the following constitutionally
guaranteed ; rights and privileges
A) The right and privilege to be :secure inhis
person while in . the . custody -of.` the State of Florid
Page 10
LAW Ur"F'ICk'u, MCCH41-4r,.. UcNKUWITZ. n. DAVIS,: 3000 * Kid:CU IVf. [aUILOIr.„ - 1a1A's11• h4..O4I0.4� 33137..
the right and
privilege not, to' be deprived
of. his liberty .without due process of law;
C) The right and privilege to be free from
unlawful attacks upon the physical integrity.c
his person;
D) The right and privilege not
to punishment without due process of law
E). The right and privilege to .be
to `be subjected
immune' while
in the custody of persons acting under the
color
of law:ofthe •State of Florida,: from illegal•
•
assaultsand.battery by any person
the authority of said:. State;.
F) The right and privilege
arbitrary intrusion by police;;
exercising
o be free from
G) The right to protection from injury
superior and other` officers.': during such
the'Plaintiff is' being subjected`
time as
. an illegal
assault and battery in their.: presence at the
hands of subordinate and fellow officers;
H) The right to be secure in their persons
from unreasonablesearches and seizure;
) The right and privilege to be ;free °from
cruel and unusual punishment
5 8 )`. `As a direct and proximate result
the intention
malicious - acts described as." aforesaid, .a11 committed
under colc
of law as CITY OF MIAMI Police Officers, andwhileacting withi
the 'scope of their employment, and pursuant to:authority .vestec
in them by the Defendant, CITY: OF MIAMI, the
THORP, CAMPBELL:`and SMITH, caused 'the 'Plainti
severe and painful injuries:to various;
suffer serious mental anguis
Defendants, OUTLAS%.
ff to sustain
parts of his ,body and tc•
59) . The Defendants' use of ,excessive, illegala
unjustified force without legal provocation or cause,`
under color of law, deprived Plaintiff of his
a
nd iinmuni.ties, under the laws'and":Constitutio
committee
rights, privilege
n of the United
e
sic
Page 11
States. The Defendants, OUTLAW,:.THORP',
LAW OFFICEU, MCCN*RY
CMIPBELL and SMITH,
NERKOWITZ • & OAV15, 3000 EXECUTIVE UUILOING. MIAM1. FLOAIOA 33137
13) The right and privilege not to'be
f his liberty without due process of'law;
C) The right and privilege to be free from
deprived
unlawful attacks upon the physical integrity
his person;
D) The right and privilege not to be
to punishment without due process of law;
E) The right and privilege to
f
subjected
be immune while
in the custody of persons`; acting under the color
f law of the State of Florida,' from illegal
assaults and battery by any person exercising
the authority of said State;
F) The right and privilege to be
arbitrary: intrusion by police;
G) The right to protection from irijury by.
superior and other, officers during such .time as
the plaintiff is being subjected to an illegal
assault and battery in their presence at the
hands of subordinate and fellow officers;.
H) The right to be secure in their persons
from unreasonable searches and seizure;
) The right. and privilege to be free from
cruel and; unusual punishment;
5B) As a direct and proximate result of:theintention
malicious acts described as aforesaid, all committed under colc
f law as CITY: OF I•MIAMI Police Officers, and while acting withi
the scope of their employment, and pursuant to authority vestee
in them by the Defendant, CITY OF MIAMI, the Defendants, OUTLAW
THORP, CAMPBELL and SMITH, caused the Plaintiff to sustain
free from
severe and painful injuries to various parts of his body and tc
suffer serious mental anguish.
59) The • Defendants' use ofexcessive, illegal and
unjustified force without legal provocation orcause, committee
under color of law, deprived plaintiff of his rights, privilegt
immunities, under the laws and Constitution of the United
States. The' Defendants, OUTLAW, THORP, CAr1PBELLand SMITH,
VIS, 3000 EXECUTIVE PUILOING MIAMI: FLORIDA23137
excessive
acted willfully and in gross
disregard ' of the
Plaintiff's rights
when the Defendants unlawfully and without just provocation
the incident describedherein-
assaulted the.Plaintiff during
before, and therefore, we pray that this Court
tory damages against the Defendants, OUTLAW
SMITH in an amount in excess of"ONE MILLION
and punitive damages in an arnount in excess
asses
'compensa-
THORP,`. CAMPBELL and E°
DOLLARS,($1,000,000.Cm
of
s
ONE MILLION
oOOC)),:together. with reasonable attorneys' fee
42 U.S.C..
provided
,DOLLARS ;($1,000,0
and -costs, as pro
in
COUNT. II
§19.88.
COMMON . LAW ASSAULT AND BATTERY, AND NEGLIGENCE...'
60) The Plaintiff reavers,:,realleges-and readopts
and said paragraphs are
Paragraphs 1 through 59, inclusive,
incorporated herein by reference as if fully sett forth.
61) The acts and conduct of the Defendants
g 52 Paragraphs 1 through
above aloe ed and detailed in 52,.
assault and battery, negligence
and gross negligence
laws of the:SLate ^� of Florida, and this
herein-
constitut
under the
Court has pendent juris-
diction to :;ear<and adjudicate said claims...
62) The assault and battery ofthe Plaintiff
:.carried out ` in such a negligent
of, cautious
regard for
fashion=as
was
to demonstrate a lack
his right to be freefrom unnecessary
and :unla`_ 12=.:both 1y harm,; or the .:threat
due care and 'diligence which
thereof, and without the
prudent and reasonable 'individual
would:have displayed •.in making br attempting arrest
62) The injury. of the
Plaintiff was proximately
caused by the neg.licjencc of the Defendants .under the
State of .Florida.
64) That the foregoing actions on the part: of the
laws of the
Defendants, _OUTLAW, TIIORP, CAMpBELL and .Si•7ITIi 'constituted an
use of force. and were below
the reasonable; standard
of care' to be exercised •on behalf of a Police Officer
with members of the public.
65)
The Defendants, OUTLAW,
in dea line
T1HORP , CAMPBELL and SMI7
acted willfully and in gross disregard of the Plaintiff
s rights
Page .12
when: said lbefendantt unla'•ifully and, Without `just
provoca tion,
LAW OIFICt t4,'' MGCNARY ukR OwiTL 'n. DAVIS. 3000, LR..CUTIVI UUILO;t , .M IAMI�:,FLOr11Dq±a JIJ7
,. during the
the Plaintiff
assaulted 'the 'Plaintiff
before, and therefore-,
Court' assess compensatory damages against the said .Defendants in
excess of ONE MILLION DOLLARS ($1,00
incident described herein-
respectfully prays that thi:
0
000.00) and punitive
damages,in excess•of ONE MILLION DOLLARS ($1',000,0
VI SECOND CAUSE OF ACTION
-COUNT. III
VIOLATION OF 42 U.S.C.51983'NON-FEASANCE
Plaintiff sues the Defendants OUTLAW,,THORP
, CAMPBELL
-and SMITH, and as groundstherefore alleges ;as follows:
66) Plaintiff:realleges,
Paragraphs. 1 through 65,inclusive
incorporated herein by reference
67).That at all times
reavers and
and
readopts
said, paragraphs are
as if fully set forth.
material to the incident
described hereinbefore, the Defendants
OUTLAW,,. THORP, CAMPBELL
and SMITH were present at such time as grievous
injuries were
inflicted upon the Plaintiff by the Co -Defendants,
Defendants negligently or intentionally failed
Plaintiff from the others who did violate his
him in.their.presence.
•68);The Defendants
affirmative duty to act
virtue of"their .position
failed to stop
iri
and said
to protect the
rights by beating
OUTLAW,.THORP and CAMPBELL had an
accordance with the duties
•
as Police Officers,
their brother
officers
ing the Plaintiff in their presence,
69) The
officer, had a duty to
who
and said
imposed by
Defendants
were sununarily punish
Defendant,
as a superior
intervene with his subordinates, tcause
SERGEANT SMITH
them to cease anddesist' the beating of the, Plaintiff i
presence,, and the active failure of said Defendant to
the vicious beating of the Plaintiff in his presence,.
his
prevent
and the
active failure of the Defendant to prevent the vicious beating,
while the same was taking place in his
presence, constituted a
denial of. the Plaintiff's right to protection owed:by the superic
officer, to the Plaintiff :while others were •inflicting injury
upon him without justification or provocation
Page 13
LAW OFFICER:• MCCRAHY. UF.IRKOWITZ .a DAVIS. 7000 EI(ECUTIVE ,UUILDIMG, MIAMI.' FLORIDA 33 37
Page--1.4
70) The
injuries,
ustained
by the Plaintiff were
reasonably foreseeable consequences _ of the neglect
of the
Defendants OUTLAW, THORP, SMITH and CAMPBELL's duties
to enforc
preserve the :'peace.
and SMITH,
the laws of the State of Florida, and to
71) The Defendants, ` OUTLAW; .THORP, CAMPBELL
were acting in reckless disregard of both
constitutional prohi-
thereby misusir
bitions and guarantees" under color'of.State law,`
the power possessed by virtue of State'_ law and made:po
because ,the Defendants `were clothed with the authority
law
sible onl
of State
72) The: inaction of the Defendants While acting under
color of: S L -ate law and under color.' of their authority as police
officers, deprived the Plaintiff of his. rights,_ privileges and
citizen of the
impunities, all guaranteed .to the Plaintiff as'a
United States, in violation of 92 U.S.-C.'§1983' and Of the
following constitutionally guaranteed, rights and privileges:
A) The,right_and; privilege to be secure
in
• his person ,while in the` -.custody.' of :the State of"
Florida;
P.) The right and privilege : t
o 'be free from
the physical: integrity; of
u:iiaw ul attacks :upon,
his person;
C) The right. and privilege not to be
.o punishment .-without
due process by_1aw;..
subjected
D) The right and privilege to be immune
-:Custody of persons acting
aw of
while
under the color
the .State of. Florida, from illegal
assault and
battery.'. by, any person exercising : the
authority of said State;
E) The right" and privilege to be free from
arbitrary intrusion by. police.
F.) ,
injury.' by
such 'time as
The :right . to protection from`
superior and other: 'officers during.
thcr -Plaintiff is being subjected to an illegal
assault and battery in their presence at the
hands of subordinate and fellow officers;
=; ., LAVA;` OFIICE7.., MCC11AfY. 41LS11 KOWIT2 % OAVIS. ]OOO Che.CUTIVC :N.1ILOIN.. ♦MI WLON104 9]137
73) The Plaintiff suffereda direct.. personal injury
the;. negligent and intentional conduct of
the laws
jurisdiction
proximately caused by
OUTLAW, THORP, :SMITH "and
the>'Defendants-,
79) The Defendant SMITH ac
disregard for the Plaintiff's rights,.
abandoned his -affirmative duty as.
to intervene and to terminate the
by the Defendants OUTLAW, THORP and CAMPBELL,
sunder the Defendant SMITH'S direct
officer
CAMPBELL.
tied willfully and in gross
when the Defendant SMITH
a. supervisory police official
unlawful "assault perpetratedL h were inferior
w o
control, against the
Plaintiff.,. and. therefore, the Plaintiff prays that
assess` compensatory. damages... against the Defendant SMITH, in an
amount in excess of ONE MILLION DOLLARS ($1,000,000 00) and
purnitive damages in an . amount
in excess, of ONE
($1,0.00,000.00).
75) The Defendants OUTLAW,' THORP
willfully, and
said` Defendan
as. `fellow `office
for
in gross disregard
is intentionally neglected: their
rs
of the CITY'.. OF MIAMI_Police Department to
this Court
MILLION DOLLARS,
Plaintiff's
the-P,lai_
and `.CAMPBELL, acted
rights, wher
affirmative duty
assault;. perpetrated by
intervene and to terminate the.unlawful,
fellow and therefore the Plaintiff prays that:thi:
assess' compensatory damages jointly and •
severally against'
the Defendants OUTLAW, THORP and CAMPBELL in an, amount
of ONE MILLION DOLLARS, ($1,000,000.00) and punitive damages
t
i n an amounin excess of ' ONE . MILLION DOLLARS,
76) Further, ` the Plaintiff prays that.` this Court award
the Plaintiff attorneys' fees and costs, as provided for in 42
their
Court
1988;
COUNT IV
COMMON LAW NEGLIGENCE
in excess
77) The acts and conduct of the "Defendants OUTLAW, THORP,
CAMPBELL and SMITH hereinabove alleged and 'detailed 'i n Paragraphs
13 through 76, constitute negligence and gross negligence under
of the State of Florida and this
:tohear and adjudicate said claims.
Court has
pendent
LAW , OIFICF.B. MCCRARV BERKOWITZ & UAVIS. 3000 EK►CUTIVC sU,LU1NC3. As/AMC, ILORIOA .313137
Page.,16
•)
78)
The injuries sustained by the Plaintiff were
reasonably.
Defendants OUTLAW,
TIIORP, CAMPBELL.
to:intervene_, and•to stop
in their presence and of
•-preserve' the peace.
'7.9) "-The Plaintiff suf f,ei ed :grievous. hodihy: harm as a
and
SMITH : s . affirmative duty
the summary punishment of
their, duty to enforce the
direct and proximate cause of the failure of
the
laws
Plaintiff
and to
said Defendants to
intervene 'and to,terminate the unlawful assault. upon
of the Plaintiff.
80) The Defendant OUTLAW, ' THORP`,.
the person
CAMP'BE LL ._and
acted willfully and :in: gross disregard .of the, Plaintiff
when said -:Defendants `abandoned `..their
SMITH
s rights
affirrnative duty to interve
and to terminate the unlawful - assault perpetrated by their
subordinate and/or fellow officers, and therefore, the
respectfully.prays that this Couit assess compensatory and
punitive damages jointlyand severally against 'all said
in an amount in; excess: of . ONE I1ILLION DOLLARS,. ($1
VII..THIRD CAUSE OF ACTION
Plaintiff sues the CITY OF MIA! I,
MAURICE.. FERR and ; PAUL ANDREWS, ;and
as follows:
COUNT V
Plaintiff
Defendan
00.0 '000.00) .
i3ERNARD":GARMI RE ,
as grounds
therefore, allege
CAUSE OF ACTION . ARiSI•NG- JNDER TITLE 42 U.S'.
c .
Plaintiff reallages,; reavers.and readopts :a
tions contained in.Paragraphs .1'through :.7
11 allec,
inclusive, and
incorporate the same by -reference as if fully "set
).
time prior thereto, the, Defendant.
forth herein.
Atthe time of the foregoing occurences:-:"a
GARMIRE,' as
the CITY :.OF.I•lli01I, the Defendant MAURICE FERRE,
CITY OF ; MI? MI , and the Defendant` PAUL ANDREWS, as
of the CITY OF.. MIAs. I had the affirmative duty and
to discipline and to control Miami Police officers
d for scar.
Chief of Police c
as Mayor of the
City Manager
the authority
and to initia
discharge proceedings against.. officers, whose .
termination of their police employment. Further, said
conduct warranted
DLfenclantr
LAW OFFICE. MCCRARY. DENIG0.Y1T1, h'.0AV15,-']000 LAGCUTIVE L'UIL01NG. MiAMI,"TLONLOA 33137
•
•
foreseeable' consequences of.:the
77,7
had the duty and the authority to }n.ike finding,:. And
,pr_naltier` S.n riisco!'.!:lUc}:. cases, and '.:ere under 4
that powtir rot /t' h:'(-
33),; .Un i.Il7:"U.'`•f�P,1'.' o: mil tJ3�:i.ri'�: ��'C'iA1" :'.' ..
-.:;1r'Lta{•�a .4�L.�.:; ! it -}'i'.i.�� 11aa r:?i, •t.
PLC ;!lP_YPttrt ;:ti.,'!
I
was lrnt�'Sy l i ,�_1�.-' e i! ••.7t .).. i.b't. • c: •r:t.tC
(.107 ..;i: 1..
thaving noticeof THORP'S complaint record and empl �. r� !.•.
} the Defendant_, CITY OF MAIAMI, "•ANDRES':S, "rAn .1T
1.to seek thL. fandant TIIORP'S disch;•
in which he would not have had the
Plaintiff, or otherwise ;to prevent` the De_._i;ci ti
tal.,u,i‘tu conduct toward citizens such as the Plainti:'
84) The Defendant CITY OF MIAMI, and. the Defend nts;
GARMIRE, FERRE and ANDREWS, either knew or had reason t :, '1< c,•u r.
•
the basis of the following prior complaints,; that the Defendant,
Ylt-IL, ,.,• i. �.-•; =e to :';act` with excessive force' and zeal and would
*
k i
F
*1• * I !
i_hc slightest provoc .
A) Case No. .1422
Nature of Complaint -
B) Case No. 1432
.Nature of Complaint
C) Case No. 1878
inC
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7I:0 S t1 -'> '.). I. ..r •. .. :.i i IZL••i i��h �i -4 :y-✓'Tt�' ry 1'
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:11 ` i i:, 1 ;t!f' > !_.. i.'thrnvi.1 t..::c the' a :t'rr
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eski/:. :1� '••i I r�t,i.`r j. t l)'t. i
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•
•
•
.37
by the 'Defendant CITY OF MIAMY, And the
Defendants,GAAM1I c,, r L'RE:F, Lane? ANDI4E'i`:5;;
871 Tile t6n:Yt1nc"CV A ue t�iij 1ii, ri{lu t_h
Gtl'U:I E,an)!t! ui ?S t cordoll:7d .and ,'i: st1 L 11i::
l'ciC►L? OUTLAW-, CkMPBt lit, and SMITH lS condUch by their
r' i i1�ve 1 1 oL theirU I U It
trine an,/ disciD.IinJ..y measures :' .!liist. file '!Jill
S0.:3', tsln j Cl.;1 occ:l_'L•?liC:E'_ off tho ai.cLcr. : 1 .-.1- I:30.! t!l
4. ;1 ,,.,:t�ii'.!)e '; -21tt'lart::3 "r'11•'
.)to'?r; f::r..f`e., lVr? "?1(.1 .1)111 i."ve,
n ^ • 1
4
l' ht.. _"-* s.. •c; ri 'cilul V L t tLL, {' .•:‹.' ;: r.
!• }li; , ) - .Gt.? .it:L),".- f:i.', - _.t.l •1 •.: -r."
afezrliant-
-f itfi to
l;t►:' iG
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{ it [si?./:.:il••f PI'.`) •,:� -
Mn
i C
art
r.
•
as IA,
t�
K' ► J4b.CT. O •4*.►4h4 4.�"�W74 �Za;y7 ;
D' The right and privilege ` not ;lc be su
ro Ilur.zshment: without due process of tar;
the col or
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of law the-uca'c.t'. ::f Flar c?..,' f.r!�m•'i -1�,
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Page 22
9`7) The" -Defendants CITY OF t1IAIlI,` GARMIRE,
ANDREWS and
FERRE'S negligent .failure `'to train, supervise:, discipline or
any other way control the individual
in
Defendant . police officers i
the exerciseof their police functions
and theirfurther failure
to enforce the"laws -of the State of Florida and the regulations
the CITY OF I1IAMI° Police Department within , the CITY ' OF MIAMI
Police; force is evidence of a ..lack of cautious regard for the
rights of
the public including €he Plaintiff, and
exhibits a lac'
of due care which prudent and reasonable individuals
in executing the duties 'of >Police Chief, . Mayor a
9 8) The: Defendant: CITY.' OF MIAMI , and the
would show
d City Manager.
individual
Defendants, GARMIRE, FERRE and :ANDREWS'c;ere"wanton,
careless and: negligent 'inc,
A) Employing the
reckless,
Defendants : THORP,: OUTLAW, CAMPBELL
and SMITH as law enforcement officers whom
Defendant CITY OF I•1IAMI', GARMIRE, FERRE
knew or : should: have known had a; reckless
disposition :_ and were therefore __unfit
and :ribose 'employment as law
the
and ; ANDRES•IS
and violent
be :so employed,
enforcement officers
presented an unreasonable risk of harm.
including ` the Plaintiff;
B) Failing to terminate;: the authority and employ -
mares. of
persons,
the.: Defendants OUTLAW, : THORP, CAMPBELL and
-.as law :enforceme•nt. officers, 'through
•
:-Defendants, CITY OF I,IAI1I, FERR,F, and: GARMIRE
have:• -kno •n.:fore the reasons set: forth above,:`,
• unfit ` to' be . so enipl.oycd ;',
C) Failing to
OUTLAST, THHORP, in
lawful.' methods of law enforcement;
D) Failing to guard: against .potential
the
should
were
properly•`tranthe Defendants
CAMPBELL and SMITH
appropriate and
hazard to
membersofthe public . by not selecting proper
competent officers;:
or
iw rir-.cc.t_. etaGott<tiv:'t�i'_u.CRWIT�_'S UdbVIl."..3000-_FIx 6tJTIVE LLtILOI d_ u
ig*********** ..,.
E) Failing
to take
even minimal protective or
precautionary measures with regard to the Plaintiff,
who was on duty, in an undercover
that the. Defendants OUTLAW,,'
would not actively interfere
the `Plaintiff
duties, and
from those agents
capacity
6-insure
i'HQRP,CIAMPBELL and SMITHwith the performance of
further to protect.:: him
whose'propen
ity for violence and
instability were well known by the Defendants
OF MIAMI,' GARMIRE, FERRE and ANDREWS.
991 The negligence on ' the, part; of
CITY OF MIAMI,
GARMIRE, FERRE and
the above -enumerated` duties
CITY
the Defendants
ANDREWS and the performance of
were 'the .proximate cause
injuries sustained bythePlaintiff.
100) . The Defendants CITY OF MIAMI,
of the
GARMIRE, FERRE and
ANDREWS acted willfully, negligently and in gross disregard of
the.Plaintiff's rights, When said`Defendants violated. their
affirmative duties as officials of the CITY OF MIAMI in
to seek the dischargeof those officer:s, whose violent
ties were, well known to them,`"and/oi 'to -assign' them. to
in which they would not have had th
Plaintiff, or otherwise to prevent
engaging in abusive conduct toward
and therefore, the Plaintiff prays that this.
compensatory ., >a
d punitive damages
propensi-
duties
e opportunity to mistreat the
the said Defendants: from
the Plaintif
citizens
such as
failing
Court assess
jointly and.
severally against
the Defendants CITY OF MIAMI,.; GARLIIRE, FERRE and
amount in excess .of ONE MILLION. DOLLARS ($1,000,
COUNT.VIII;;
RESPONDEAT SUPERIOR
101) Plaintiff;;.realleges,
ANDREWS, in an
000.00)
reavers and readopts all
those allegations contained in Paragraphs 1
inclusive, and said paragraphs are
reference as if fully set forth.
through 100,
incorporated herein by
102) The Plaintiff suffere
d a
proximately caused by the negligent
the Defendants, OUTLAW, THORP, CAMPBELL, SMITHH,
and ANDREWS, all municipal employees, acting within the
direct personal injury
and intentional conduct of
GARi•1IRE, FERRE,
scope
Page 2
of
their employment.''°
LAW OFFICC6,.. M CRARV. OLRKOWITZ A DAVIS, 3000 EXECUTIVE BUILDING. MIAMI, /L01•10A 33137
Court has " pendent :jurisdiction to hear
"104.).: =The" Plaintiff
103) The Defendant .CITY OF MIAMI is liable
common law
injuries and damages suffered by the Plaintiff
doctrine of Respondeat Superior for
under the
any and all
�s"a result of the
before., described,
the Defendants
acts, events or omissions of. action as herein
;both negligent and: intentional, .committed by
OU'I'LAW, TIHORP, CAMPBELL, Sfli'1'II, GARb1IRE," FERRE.
and " ANDREWS, all
employees and agents of the Defendant CITY OF t•1IAMI, acting withi
the scope of their employment. The acts and conducts: of all of
the Defendants .hereinabove,,;alleged and detailed, constitutes
a:claim rased upon a theory of Respondeat Superior, and this
and adjudicate said claim.
suffered a: direct and personal injury
proximately caused by the negligent and intentional
the Defendants OUTLAW, THORP,..CA PBELL, _SMITH,.
and ANDRE;,S, all municipal employees, acting within
their employment, and therefore,
conduct of
GARMIRE, FERRE
the scope of
the Plaintiff respectfully pray:
that this Cour assess compensatory
damages against the CITY OF
MIAMI under; t ze doctrine of , Respondeat Superior,
excess. of ONE MILLION DOLLARS, ($1,000 000 00) .
IX.,
A jury trial is hereby demanded.
I)i`:`1'EI) July 21, 1978
in an amount in
Respectfully' submitted,'-
t•1cCRARY, BERhOW,ITZ & ' DAVIS
; -v •
\I
JEFFREY L. i3EIRKOWI Z:
Attorneys for Plaintiff
305 I3iscayne Blvd
Suite 300-E \_ I
? i_ami;, Florida _33137
Tel. No. (305) 576-1500
Page 241
•,
UNITED STATES DISTRICT COURT.
SOUTIIERN DISTRICT -OE ELORIDT.
JOSEPH COOT'-,.
Plaintiff,
vs -
THE CITY: OF
et a l .
!)clfurdant
tc ..,..,.
CASE, NO. 7B-3225-CIV-3*AG,
ANSWER
COMES P,C ,l the Defendants, THE CITY OF PMIAMI and BERNARD
G R 1 RE DV c n't through their ,undersigned attorneys, and files the
foilowina Answer
and sags:
3?? .:ice poneO
Plaintiff' s .Complaint filed herein,
Defendants specifically deny each and ever
,', e_:.
anegati:on eontai_,
P:laintiff's Complaint.
in fur Cher answering said Cornnl.aint, Defendants . by
VIE;,, of affirmative c ronses allege as 'follows
''..at :ti.;.: are not guilty.
�i•.ca4i tiff conducted himself in such a
and/or Cr1_.r•1 i."- s "rci..,...er that- he contributedin whol.e'.or in part
alleged damaces
reckless
his
3, Tnat at all times material hereto, ;Defendants acted
.in cod faith, t,'iti probable cause, and without malice towards the
Plainzif_f
_s claim is barred under the Doctrine.
Lach1� .
t I�laintif:f. is barred from the:bringing,,-
ingincj";of
action :�1.L an- i IJ `' _cable Florida Law, a
=bCCUSe he,',„ as been:-
coi'i ._n.�_:Lt.. ror i ~d:.113:1k,:es through Worl:Men's CompensatiOn` benef.its.'/
the Plai.nt:i:..f-f has failed to
this
give proper notice
clZ i...�. i-:.i _ 2:1li.t.i. n :�rcuedcnt to the fili.nq of this action.
That De fendant is imrnune .from suit pursuant to
the �::plicab e'_'lorida, Statutes: and Law.
EXIIIBIT. "B"
PP
LAW 3FTI:ES OF FDIii.ER, WHITE,(1URNETT, HURLEY, CANICK G KNIGHT
'.14. 44%5.T:It'.7 0:i, rI FTH FLOOR CITY NATIONAL BANK UUILGING. MIAMI, FLORIDA 33130
a n C:
i'1:4.'1 t De enclant used °only that .force reasonabi.`,
VC CE Lt'r •' .ILO•C.pf;frCh nd 1?1ainti.ft.
cicfeilse .
.:o:_ _goiI'. j'
Blvd.
and Jcl':n
;• t
?'17a Lie:' crtdant Wi t provoked and aCtcd only i.n self
FOI'1LE 12, 1.1IlITE, .3UI2NIETT,BURLEY,
BAN.I.CI & KNIC;I1t. , P.A.
5th Floor City National Lank °I31dq.;
25 Wcst. F1agl.er. Sti:eet
Mianil,-Florida' 33130 (358-6550)
Gregor M /Gaebe
/,
C IFICAT'E OF SERVICE
C., "T7',': that a true and correct copyof the
�' .i-,/ of Februar},, 1979 mailed to: Michael
? c; • C.r.ary, Berkowitz, Davis & Feijh, 3050 131scayne
33137; George F Kno ,Jr Purton Young
R. Garmire," ±ncliivldttrlll,'
• thu City o_ Paul Andrews, individually and
Olt
and as ..Chi.ef of
as
idu
_la 1:.i; and Maurice Fc!rre, ,indivally
at 1.7071. West Dixie Highway, North
1ar _ 331- �i; - rvinq
7-17
Neinsof f , Escl'..
Fla 33130.
1•Wcin:so.tf` &
City
and. 'as
Miami
Wcinsoff,
FC).':LER, BURNETT, HURLEY,
BAI,IICK & ''KNIGHT, P.A.:
5{th 'Floor - City National .Bank Bldg.
25 West 'Flagler Street-
Aliaiii., Florida 33130 (358-6550.)
/;.'.-•; ':cis'
Gregor i;i: Gabe
GI• _:.LEP. WHITE, BURNETT, HURLEY. Di\t:ICK t KNIGHT
T'r ?.I- . >.., ,iIC),I. FiF tii FLOOR CITY NATIONAL BANK BUILDING. t•1.AS'I. FLORIDA 33:30,
JOSEPH COOI:,
Plaintiff
GIs -
r-'•:It" t'' CITY:Oilf::i11 etc.
It .,
Deiendan ems'.
COMES- i• c; t
UNITEDSTATES DISTRICT _COURT.:
SOUTHERN DISTRICT .Ot FLORIDA ..
CASE NO. 78-3225-CIV-JAG
ANSWER
e Defendants., THE CITY. OF MI P.II and; BERNARD
CARMIRE, b;•- and through their: undersigned ` attorneys_, and files:
following Ans:•.er. in ponse to Plaintiff'
and says:
Del6n
dllr C��iai lol: Con -Line:'
way o
Complaint .filed herein,
•rits specifically deny each and every
Plaintiff
Complaint..
Ana in further answering said Cor,Iplaint, Defendants b�
:alma tive•
='f Ses allege as follows
'i,at. thy .are not guilty.
Plaintiff' 'conducted: himself. in ,Such:: a reckless.
and/or ca: _sss r:na gnat hecontr�liited in chole
or in part to his
alleged damages.
in "good fa i•ch,
Plaint i_`.f-.'..
LachcI:..
Th�.t at all times material hereto,
Defendants
acted
prrDable cause, and without Malice towards the
is claim is barred under the Doctrine o
3.: That',tr,e. Plaintif.E.. is barred from bringing
,3ct.ion .)u .:i. LIrt: L to ,a,:1cable Florida Law,: because he has been ;.
J:C)I= :'! .... da1.,_1ijcs • through''W`Tor}.men' s Compensation
f this
benefits:/
'I'}I it the Plaintiff: has. failed to give proper
notice
•_ nait3.::JI: ecedent to the of this: action.
Defendant i.s .irimune _ from suit` pursuant t
the applic;,11.11e P1o:"tdc Statutes and Law.
EXHIBIT "
'LAW OFF17..=`.: or rOwi.E:R,WHITE, t3URNETT, HURLEY, EANICI(:(. M,Pi1GHT` `
:i;.0t.At rt.aow CITY HATIONA!:" E3AN1< EIUILGItIG. MIAMI. FLORIOA.33130;
I3.':pr
2/15/79
7a-5707-02-10
JOSEPH:_COOK,:
Plaintiff,
vs.
IN TILE .UNITEDSTATES D:f.STRICT COURT
SOUTHERN DISTRICT OI' FLORIDA
CIVIL ACTION NO.:78-3225-=CIV-JAG,
THE CITY OF IMIAMI, _
etc., et al., ANSWER
Defendants
The Defendants, •'PAUL ANDREWS and i`•LIURICE FERP1.,' by :`an
through their undersigned attorneys, answer.' the Plaintiff's;:`
Coplaint as , follows:
Said. Defendants .specifically deny eachand; every
•
allegation contained in the Plainti.ff's.::Complaint•:•
And in further ans'iering.:said Complaint, said
... :.
by way of Affirmative Defenses, allege as follows:
1. That they are not guilty.
Defendants,
JR.
. That Plaintiff conducted himself in such a reckless.
and/or careless manner that hecontributed:
part to his alleged damages.
in whole or in:
(3) The said Defendants are local government officials,'
and are .immune from suit upon the
of .responcleat superior.
Plaintiff's alleged theory
4., That the said Defendants, . at alltimes; material to
this action,
were without
upervisory control of ;Defendants:
OUTLAW, TIIORP, SMITH and CAMPI3ELL .
5.) That
pursuant
Affirmative ' Defenses
the saicl Defendants . are immune from this .suit
to applicable Federal and State law.
That said Defendants :adopt, by reference, .the
as set forth by.thc'Defendants
TIIE' CITY
OI?: t1IAitt and :BEI2r:ARD and' Heretofore' filed' in this
cause.
I
YOUNG, STERN Lk TANNEN9AUM. P.A.
NORTH MIAMI fEACI.1
7. That the; said Defendants were not deliberately_
indifferent to any of the .claimed deprivation of the
Plaintiff's Constitutional"`ricjhts.
WE HEREBY CERTIFY that a true copy of the foregoing
was mailed to the following named addressees on this
15 th . day Of February, 1979
McCRARY, : BERKOWITZ,. DAVIS" & FEIC
Attorneys ;for Plaintiff
3050 Biscayne Boulevard
Suite 300
Miami, Florida 331.37.
IRVING. WEINSOFF, . ESQ
WEINSOFF & WEINSOFF
804 Roberts Building
28 West 'Flagler Street
Miami, Florida 33130
FOWLER, WHITE, ;;BURNETT,.,;.HURLEY,BANICK- & KNIGHT,;'. P71.
5th .Floor, City National: Bank Building
25 West Flagler Street
Miami,. Florida 33130
GEORGE F. KNOK, J.:, BURTON YOUNG
and JOHN R. BARRETT
Attorneys for Defendantsn, PAUL' ANDREWS
and NAURICE.` FERRE
17071 :.West Dixie Highway.
North Miami Beach, Florida 33160 .;
Telephone:No. 945=1851
1.
'�BURTON YOUNG.:
•
.‘"
• JOSEPH COOK,
Plaintiff,
vs
THE CITY OF-MIAMI,-
Defendants.'
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 78-3225-CIV-JAG
THIS CAUSE has ocme before the Court for review upon the
Plaintiff's Motion to Strike the Affirmative Defenses contained in
Paragraphs- three, five and of the Answer -:- filed, on ,behalf of the
Defendants, Paul Andrews and Maurice .Ferre. , The ,:Court has considered
the , record, and -.beingotherwise duly advised, it is
ORDERED AND ADJUDGED as :f611oWs:
, •
1] The Plaintiff's Motion to Strike is GRANTED as to
paragraphs three and six and said paragraphs are hereby stricken from
the Answer of -Paul Andrewsand '-MauricelrFerre.
•
2] The Plaintiff's Motion to - Strike- paragraph five- will
!be treated as a Motion for More Definite Statement, and treated as
such is hereby GRANTED. The Defendants are directed to file a more
definite statement with respect to the affirmative defense or defenses
, • -
contained in paragraph five within ten days from the date of this Order.
DONE AND ORDERED in chambers at Miami, Florida this
0e6721 day of April, 1979.
• EXItIft:r."D"
JOSEPIi COOK, ..
vs.
THE 'CITYOF
Plaintiff
MIAMI , et a
Defendants:
• ,
UNITED STATES DISTRICT;C,OURT
SOUTHERN::DISTRICT OF FLORIDA"
CASE NO 78-3225-CIV-JAG
0 RD%E
THIS CAUSE has come before the Court
for review upon. the Motion of the Plaintiff to",Stri}.e;Affirmative
Defenses Nos. 4,;5, 6, 7,, 8 and ° contained in
the Answer, of the
Defendants, The City of Miami and Bernard Gamire. The
considered the record, and being otherwise duly advised, it is
Strike be GRATED as
Court :has
ORDERED AND ADJUDGED that the Motion
Affir.mative:.Defenses contained
paragraphs- four. : _1a -five asserting the defenses Of lathe
exclusivity of P:o ::..;,eri's compensation as. the Plaintiff's.
s an
dthe
remedy.
The Plaintiff's _ Motion :to Strike is DENIED as to Affirmative
Defenses contained in paragraphs six, eight and nine:`
Motion to Strike paragraph seven is treated as
The
Plaintiff's
Motion for More
.Definite Statement and- treated as such is hereby CPANTED:
Florida this
ONE AND ORDERED . in chambers 'at Miami,
day of April 1979.
Pam; •.:;,= ,`
EXIHIBIT "
TED STATES .DISTRICT
Mayor of the city, Paul
review upon
Vincent J . Smith, - Dale W. Thorp and:. Robert Campbell as :active.
participants in the conduct complained of.
joins as defendants the. City of Miami, Maurice :'Ferro as the
Andrews, as the City Manager
JOSEPH'COOK,.
VS
FtP ' Ili 50 AH '79
'CITY oi7 MIAMI
)
Plaintiff,
UNITED. STATES .DISTRICT COURT
SOUT!HERN.. DISTRICT OF FLORIDA
CASE NO.
THE CITY OF MIAMI, etc., ORDER
et al.
Defendants.
78-3225-CIV-JAG
THIS CAUSE has come,befor e the Court for
the following motions:
1) The Motion to Dismiss on : behalf of the City o
Miami, Bernard Garmire, Paul Andrews and. Maurice:,Ferre:.
2) The Plaintiff's Motion to Strike Affirmative
Defenses...,
3) .The. -Defendant '`s Motion to .Stay discovery
dispositionof the Motion to Dismiss; and
damages.
4)- <The -Defendant's Motion'
pending
Strike claim for punitive
Plaintiff, Joseph Cook, filed a complaint alleging
claims based upon 42 USC 1983, 1985; 28 USC 1331
common law
Assualt
& Battery and .Common Law Negligence':-
. Complaint ll h
inc essentially alleges that the
Plaintiff,
while employed by the City of Miami Police Department as "an
undercover narcotic detective, was brutally and viciously beaten
without provocation by certain other members of the police
department in the view of and with the acquiesce of the
men's superior r officer. The Plaintiff, further alleges
patrol -
that the
police department_ has enacted;a de facto policy of condoning,.
the misconduct of these defendants:
The Plaintiff has filed suic
against. Charles
Oitlaw, •
The "plaintiff. also
and
Bernard
Gamire,as the Chief of Police
Department. EXHIBIT
F""
of the City of. Miami Police
8
`(,
•
The .defendants, Terre, Andrews, Gamire, and City ._of`
Zviiarni, have moved to dismiss the Plaintiff's 1983 claitns as
to them arguing :that under the recent decision of Monell v.
Department of Social Services of the City of Ncw `.York, 98 'S Ct .;'
2018 (1978).local government officials cannot be found` liable.
predicated solely upon" a theory of responcleat superior.
reading of the Monell decision is correct-. The, application of
Defendants
the Monell decision to the facts sub judice, however, does not
compel the dismissal sought by the defendants.
Inruling upon a motion to dismiss the Court does,
of course, take all the well plead allegations of the . complaint
as true. Cooper v. Pate, 378 US 546 (1974);`National Bank of
Commerce of -Dallas v. All American Assurance Co. , 583 F2d,1295
(5th Cir. 1978) ;:` Reid .v. 'Hughes, 578_ F2d: 634' (5th Cir. 1978) ;
and Slavin V. Curry, ` 574 F2d '1256 (5th Cir. 1978).
The plaintiff's complaint
Ferro, Andrews, and Gamire, . acting as
alleges that the defendants
policy making officials
of the' City- -'of Miami,rni, failed. to control -the behavior of sub
ordinate employees therebY ratifying the unreprinianded Conduct.
1
and creating a de facto departmental policy.
Taking;
these
Gamire and'
allegations as true, she defendants, Ferre Andrews,
City of Miami could be found liable for the civil rights violations
of Outlaw," 'Thorp, to tr and Campbell. See, Turpin v: Mailet,
579 F2d 152 (2nd"Cir. 19.78) The Court finds that "''personal
participation" is not a necessary prerequisite to
impos-ing liability
upon the supervisory defendants. , See Sims v.' Adams , .537, F2d
829 (5th Cir.' 19 7 6) The Sims 'it. ' Adams decision teaches that
Where a mayor and/or :pol i.ce ; chief breach: them duty' "to control
a polic'entan's known propensity
liability
may
f:ollo�;.
for improper Use of force
1983
The defendants seek to have the pinint:i.ff's claim for
recovcry predicated. upon the 'Four t'ecnth Amendment • "to the:'.Unitcd '
States '.Conti t:'l.tut]:nn . 'dismissed
The, defendants argue that - a
"Pivens-type" . chose of action tray not he Hisser t;ed 'by a plaint:1f f
where statutory relief „is available
Richardson
578 F2d 846.(9th Cir. 1978); C.f., Curran v
Portland Superintending
School Cotninittee,'435 F.Supp. 1063 (S.D. He 1977). The Fifth.
Circuit, however, has rejected;
of Jackson,532 F2d 491 (5th Cir.
544,`F2d 865 (5th Cir. 1977).
this argument.
Reeves v. City
1976), see also Davis v. Passman,
The defendants also seek to have theplaintiff'
demand
.for punitive damages stricken from the complaint. 'Defendants
argument. that punitive damages may not be awarded to redress
a`civil.rights victim is not the law in.this circuit. See Claiborne
vs. Illinois Central Railroad, 583 F2d 143' (5th Cir. 1978), - Gore
Turner, 563 F2d 15.9 (5th Cir. 1978),; Burman v.-Bay'City Independent
School District, 445 F.Supp..'927 (D.C. Tex. 1978). See also
Shaw v. Garrison, 545 F2d 980 (5th Cir. 1977). Batista v. Weir,
340 F2d 74 (3rd Cir 1965);`Gill'v. Manuel, 488 F2d 799 (9th
Cir. 1973) and Caperci v. Huntoon, 397 F2d'799`(lst Cir: 1968).
See generally :'Punitive; Damages in Actionsfor`Violations of
Federal Civil ;Rights Acts", 14 A.L.R. Fed. ,608 ,(1973).
Likewise the plaintiff's .contention 'that
the; `defendant
police officers are not entitledto a qualified immunity has,
no foundation in the law of this circuit. See Procunier .v..,
Nauarette, 98 S.Ct. 855 (1978);
Imbler v. Pachtman, 424 U.
409 (1976) Pierson v. Ray, .386 U.S. 547 ; (1967:) ; Richardson:. v.
City ° of Conroe, : 582 F2d 19. (5th Cir. 1978) ; Downs v Sawteele,
574 F2d 1 (5th Cir. 1978) Adams v.. Sims, 537 F2d , 829 (5th Cir.
1976); Byron v. Jones, 530 F2d 1210 (5th Cir. 1976). .See also.
Jennings" v.. Schuman, 567 F2d` 1213`. (1st Cir. 1977.)
It -is thereupon
ORDERED. AND ADJUDGED 'as.. follows:
1) The Motion to Dismiss : filed `om behalf of the
defendants,. City of Miami, Bernard Gamire, Paul Andrews and
Maurice Ferre, is hereby. DENIED. These
defendants � are ��luecte
to file their Answer within ten [ 10 ] days ' of the date of this:
Order.
2) The ` defendants' Not ion to` Strike the plaintiff's
demand for punitive ,damages" is hereby GRANTED as to the state
common law claims asserted in Counts Seven and Eight. See:'
other respects the defendantsmotion is DENIED without 'prejudice
to reviewing said motion at.the`conclusion of the trial.
3) .Fhe defendants' Motion to
disposition of the Motion to ,Dismiss is hereby DENIED as moot.
4) The Plaintiff's Motion to Strike affirmative
defenses numbered Four Five and Six is hereby . GRANTED, and
to" affirmative defenses nuMbered Three and Seven is hereby
DENIED.
DONE dD ORDERED at Miami, Florida, this
of l'7.1r•,ti 19.7 9
Stay Discovery pending
as
JUDGE
G ii 2teeriw UA49-L.eA(.4p/�., V CLZ.L✓t
3000 EXECUTIVE BUILDING
3050 DISCA NE DOULEVARLO.
SUITE 300
JC i:F. J PIcennRv. JR. MIAh1I, FLORIDA 33137..
itU^.5R flARHV. DAVl. .. ..
IAARC 1.: rGIC., - ... .. -
MIC-IACL J. NGIMAND` - TELEPI40 E.I305I578.15O0
•
, c • raw
ti
1,1w: e n'n c r 2 , 19 7 9 tw- , � `. .� e''t� ;
ll
Burton Young, Esqui-re � /_
17071 West Dixie Hi-ghnzey TTr"r.--‘..
North Miami 13eacn,, ,Florida -
Re: Joseph Cook vs'. TheCity of Miami, et_ al
United, States District "Court .Southern District of
Florida
lorida" - CItVIL ACTION O-. '� 78.--322D=CIV-JG
COOpyTONE
Pict..
r%r:
Dear -Burton,
The undersigned on behalf of the Plaintiff in the
above -captioned litigation, Joseph Cook, has;,reviewed all'of;
the .pleadings, memorandums of law, expert witness reports, our
economist's analysis and evaluation, summaries and remain of, the
belief that our client's compensatory damages will support a
claim in excess of $8,00,000.00, plus` any. ; recovery for' punitive.
damages.. Notwithstanding thatfact, we have considered
the attendant risks involved in presenting the same to any Jury
and as a result thereof am prepared to suggest certain terns,,
and :conditions upon which the above -referenced litigation; can
be settled,. out oz court, on an amicable " basis.
I have reviewed the following .with our client, ;Joseph Cook, and
he has indicated,that he is amenable to accepting the same.
While I realize'' that you do not have the authority to accept
the offer of settlement on behalf of your clients, without "the
forinal approval.and authorization of your client, I:' am hopeful
that you will find .;the following eminently reasonable under the
Circumstances and ultimately beneficial ;to all of the parties
involved and that accordingly, you will be able, in good'
con science, to recommend acceptance of : the name to your
client.] am confident that the folic,,, in'j settlement offer will
be consistent with and: within the parameters of the settlement
negotiations tha3t,have ensued for the past several months,
thereby enabling you to recommend the approval and acceptance
of the settlement: package by your clients.
JurrntiV L._ t3rRKOWITZ
RJ�.RR etnroiV DAMS
MARC :1; FC16
MICHAL:L J. NSIMAND
(J/.ed
IUI.G9rC'✓1 cifJl�/�:2fiLG2Gfi,C!Cl/I.�Ilt Gl: c./ Ut.!
•
3000 EXECUTIVE BUILDING
3050 OISCAYNE BOULEVARD
SUITE 300
MIAMI, FLORIDA 33137
r
No��bmbe 2 19.79 E�` 1 A"d
c,,� '1' A
l .. ^4l' yap
Burton-.You,ng, Escuir:C `✓", ,
17071"Nest Dixie Highwa}
' North `i4iarni Beach,F1or:ida ' =k'
TEI-EN-1o:4a: (305) 576.1500.'
Re Joseph Cook vs. The City of i4iami .et al
United. States District Court - Southern District "o
rlor.ida CIVIL ACTION NO. 78-.7.322:-CIV=JG
Dear Burt,
O GoosTONE
Jal-
1
The undersigned, on behalf of the plaintiff in. the
above--captionedlitigation, Joseph Cook, has .;:rev ewec3 all of
the pleadings,' memorandums of law, expert. witness' reports, our
economist:'s analysis and evaluation;:: summaries and- remain of the
belief that our client's compensatory ;aamages will support a
an recover
claim in excess of $800;000.00, plus y -Y for. punitive
darnages. Notwithstanding that fact, We -have` considered
the attendant risks involved in presenting the same -to any jury
and 'as 6-result thereof *am prepared' to suggest certain, terms.
and conditions upon which the above -referenced litigation' can
e settled, out of court, on an amicable basis.
I have reviewed the following .with our client, Joseph Cook, and
he :has`. indicated . that he is amenable to accepting the same.
tlhile I:realize that you do. not shave the authority to accept
the offer of settiement on behalf of your clients, without the
forrnai approval and authorization of your client, I-. ;am hopeful
that, you will find the following eminently reasonable under ; the.
circurristances,.anc3:: ultimately benefiCial "t0 all of the parties`
involved; and that, accor:dingly, you Will be :able, in' good
cost cience, to recommend acceptance of the same to your
ciient.I. am confident 'that the following settlement offer will
be consistent with and within the par ameter s;of the settlement
negotiations " that have ensued for the past. ;several nronths, ,
thereby `enabling you to recommend the approval ' and acceptance`
F 9" y,
of the ettic�nr� settlement �acka e b `your.clients._
3:3. '�
Page Two
November 1,; 1979
The Plaintiff, Joseph Coo}:, prepared to dismiss the
litigation no;;.pending in the United, States District Court
against the City of °Miami and certain of itspresent and former_
officials and employees upon satisfaction of the following
conditions: •
The sum of $ 300,000.00 'shall bc:-payable to 'the. Law Offices.
of`►•1cCr:ary, :3�r: oaitZ, :Davis & Fcig, in 'cash.or. its equivalent,
simultaneously ‘ith the 'execution and delivery of the
pleadings ,` releases and ot.her clocur:lentati.on hereinafter
enu;neiated
1)
2) An instrument shrill be prepared, in form "acceptable to
couns._:1. for the Plaintiff and executed by "the appropriate
officials of the City of Miami covenanting and attesting to the
fact .:that those cer. rain workmen's compensation, disability,
r.etir.:.-inent and/or pension benefits being .presently paid to
Joseph Cook an the approximate present amount of :$801.00 per
month 'shall contin L. to be paid to Joseph Cook on a monthly
basis for the r.emainder of his life and shall be subject to the
saine cost of living increase benefits, medical payment
benefits, and survivorship benefits, following the death of
JosephCook, as are applicable toall other employees now being
compensated under the same or equivalent disability plans
presently existinc.;. Said instrument shall expressly provide
that Cook's entitlement to said benefits are and "shall_ remain
irrevo
cable. ocahie , , .
3) All parties execute a stipulation, IT
satisfactory to you and to the undersigned, dismissing the
captioned litia ytion with prejudice and providing that each
party shail bed : its o1:, his own expenses, costs andattorneys'
fees:
4) Genet:. 1 _.el ases in form .satisfactory . to the undersigned
shall be prop a•r:, d', executed and delivered by each Defendant in
favor of the Plaintiff` and by the Plaintiff in favor of each
Defendant,, any further c
instruments shall operate to release the
r.'laiius or liabilities
arising out of the incident which occured on September 3rd,
1974,.on the b sis of which incident, the subject :litigation
wa.; initiated
5) The resolution of the is.;ues and disputesnow existing by
and tbetween the Jo5;eph Cool: arid Appalachian
zn�:ur�.luce Coiiipariy,' 1:cicit::ive to the litigation now pending in
the Cii:C U:it Coui: t in zinc! for- I) ade County, Florida in the case
of '.f'i1or.pr• vr.;. the :.City of. Miami zinc! Joseph Cook, Case No.
76-f3�17.1-cI --u6
After you have obtained the .prelimin 'ry reouisitc consen
acquiescence and approval, from the, City of :•tiarni .and, if
necessary, from the ;other: Defendants, to the termsand
. ., _, t �le:ase be kind enoug
conditions -- - � '_, � r ., r. Si( nature in
indicate your acce,otance hereof 'oy azfixing you 3
• � � •- t- ;,; r. ro se any] return
the space pr�,�' i.: ;
t }l; eh we arc Ji . dared to enter into.such
.., approval of the ,terms .,.. t.,,. s.by he
p,.nd in;; f:..:11a1 of the
of the pl o.�osed setticmen , }h to
settlement
reel hec inbeloti•1 for tr:a_ a
saint to ine, 'fo_.-o,i„�, _ , �
stioulations as are essaryVto coat nue tthey,trial. date
t
City of i•liami City Co mi:-;sion, formalization rR f transaction.'
documentation and > finalization of t•:- settle
Inasmuch a'the above -captioned litigaio tn i
as now scheduled for
tr.iatl on Deceraber 3, 1979, anci given the ,fact that our client
will be severely prejudiced by any. further delay in the
prosecution of this litigation, and by the delay in the.
resultant recovery, this offer shall remain irrevocabble until
November 14, 1979. Unless accepted, subject to the subsequent
formal autlzo-r.i7atio:n and "approval of the City of "i.1iarfi City
C:ommission,` within that period, this offer shall be considered:
null and void and of no further force or effect.. ` Accordin:gly,
we are not willing at this time to stipulate to .a continuance
of the trial date nv.: scheduled for "December. 3,• 1979 and stand
prepared to proceed-to.tr.ial on the merits in the;. event that.
- ''
the .settlement offer- herein containea• is not :app and
approved
accepted' within the period specified hereinabove.•
cooperation and assistance in this matter.
JL13ccls
Cc.: Joseph Coo}:
truly ;yours,
11
t•ScCRARy, } ER::OI:TirV
Z, DAVID
' li: 1
(; 41 A--.:-Ir- l'
J E I.' II-U L. E3 ERti TI T Z
13llit'1.'C)N YOUNG, Counsel" ; foi: the
(Defendant, City of ►li.iu:ii
Dated this day of November-, 1979.
After '.you have obtained the preliminary requisite''. consent,
acquiescence and approval, from the. City of i•liami and,,. iE
necessdr• frorn the other: Defendants, to the. terms, and
'y• please qua kind enough to
conditions of the proposed settlement, , 4 -
e i}:ing your. 5.ignatur_e in indicate your. :acceptance hereof by affixing thespace provided h
> ,ereinbelo,7 ' for that :and return the
:
same :to me, following which we ar-c pre tired to enter into: such ..
stipulations as are necessary to con nu the trial date
pending formal approval of the terms of the settlement by the
City. of Miami City Commission, formalization of the settlement`
documentation and finalization of. the settlement . transaction.
Inasmuch as the 'above -captioned .litigation is now scheduled for
trial: on December 3, 1979, and given the :fact` that our client
will be severely prejudiced 'by any 'fur. thet delay in the
prosecution of this litigation, and by the clelciy in the
resultant recovery, ` this offer, shall remain irrevocable until
November 14, 1979. Unless accepted, subject; to the subsequent
formal authorization and approval of theCity of _ Miami City
Commission, within that period, this offershall be considered,
null and :void and of no further- force_ or effect._ Accordingly,;
we are not milling at this time to stipulate to a' continuance
of the trial date., now scheduled for; December,_3,.. 1979:-and. stand
prepared ;to proceed . to.:trial on the .;merits in the event that
the settlement offer. ,herein contained- is not approved: and
accepted within the period specified hereinabove.
Thank you .for. your. cooperation ;and assistance in this matter. ,.
JLi3:cls
cc: Joseph Cool.
Approved and Accepted By
Very truly yours,
(�i.:
McCR1�RY,,1 HERt:Ot.LI 1 Z',. " DA\ I� & c EIG
iI ; V\
BYl
JE i } L. BERRY.'�ITZ
,, J ! j
I3URTON YOUNG, Counsel for the
Defendant, City of ►li.ami
Dated this. day '.of November ;. 1979.
HIIkTON YOt1N0
JEf0MF:_ it.. t,TEI1N�
NERi1 F:ftT-W. TANNENFIAU 4
p1,\f1TIN R POLt:NC.11
SYANLI:Y. E. ISkAF:L
t1RUC1: J. OF;NENFI:LO
11011E 1't• O. lIF.12T2tIEF4G
DAVIO A. KOURIN
NO.Rt4At: Ilt LI:45141
LA.1 OFV''IC!:S
()T_T S1TrZI & .1*.e&.YNEN73[1.UM
PROFESSIONAL ALISOCIATI0U
17071.WEsTOI:CIE 11I0HWAY
- POST OFI'ICE FIOX.COO ss0 - . ..
\ulxr11 'tz_ 'ii 73L:Acit I'.c.vu.uA. asIC )
TFL£VHONt. (:iUri) 94 l•1W51
❑a5wnolu tJ051 5120•OY03
cAnlE
November 20, 1979
Edward A. Moss, Esquire
ANDERSON`. & MOSS
Suite 2300 Nei.,, World Tower
100 N. }3iscayne. Boulevard
Miami, Florida
Re: City of Miami v. Midland.
Case No. 79-16024 (CA 10)
Our File No. 79-6076
or COUNSEL
WILLIAM L. NALLOT
HARVEY RUVIN
tf R14Ni: M. BERMAN
Dear Mr. oss:
On November 6, 1979, ,we wrote to you relative to a
proposed settlement as received from counselfor
the Plaintiff is case, of Cook,v. City. =off Miami, et dal,.
CaseNo. 76-3445-CIV7JG, ;pending in .the. United States
District Court, Southern .District of Florida. ,You.'have'
not respondea to that letter .on behalf of your client,
Midland 'Insu nce Company, the e:ieess carrier for the
'Defendant, th City of Miami.
A s sp-cial cc.�.nsel for the City of I4iamx, ��c•, along cry th
the City L :c_ e: will recommend ; settlement of the said
l.aWSuit, i ::c ied, to the City: Commission of.,:t.he City
of Miclinl. j L:.=..:.
in accordance with the lcttc-r we have
written :to ,cc.Irs vl for the Plaintiff .this clay, a, copy of
'.which We; e:icloss herewith' (provided,'. of course,. coun:,e `'
for �thc. Plaintiff accepts the modification)' .
Because your client has ignored our repeated request to
interest t`le. 3e1 ve s in this matter, or in any wise :`cooperate
with the Defendant, the City of. Miami, or the .primary
car.rio ,. Appalachian Insurance Company, we , intend to pursue
our claim for recovery of all sums that the City of Miami
may be logrill.y entitled to a:: a result of your clients
breach' of ` the insurance contract, ; including any claim for
Janie ges for bad faith that: is available to the City of >Miami.
80-33
CT`CY nr:. P9:C11I1T .V MII)L\\ND:
However, if your client wishes to object to the propose
settlement before formal action is taken thereon by the
City of Miami at a duly and :regularly called Commission:
meeting which has been scheduled for the day of
19 and is willing to provide the
othnr benefits to the DeFendant, the City of Miami as due
under the said policy of insurance, including, but not
limited' to, the funding of a final jury award, please
inform us promptly in writing- on or before ` the date and
time scheduled for consideration of this matter by the
City Commission of the City of Miami.
,or the Firm
JEFFREY L. DERKOWITZ
ROGER OARRY DAVIS
MARCI. FE IG
MICHAE:L J. NEIMAND:.
November -21',
1979
Q
3000-EXECUTIVE BUILDING
3050-BISCAYNE BOULEVARD
SUITE:300
MIAMI, FLORIDA 33137
TELEFNONEi (3Us) s76.1500.
BurtonYoung,,Es_lur.e
Young,, Stern & Tannenb"aurn, P.A.
17071'West Dixie' Highway
Box u00 550
North 'iliami B�ach, ';Flor.;ida .33160
(..4eorge
City Attorney ;.
The .Ci`ty.-of•i,1ia_ni Law• Department
174 East Flagler Str..eet
I4iami, " E'lorida: 3313i
OEDRA WEISS GOODSTONE
'OF COUNSEL'
Re: Joseph Cook vs. The -.City of Miami, et al
United States District Court - Southern District
Florida CIVIL ACTION NO. 78-3225-CIV-JG
Gentlemen,
We are in receipt o your communication dates] November 20, 1979
relative to our Previous settlement proposal in connection with
the above-refere.nceri litigation.
We are certainly :.c)_,nizant of the imminency of the scheduled
trial of this c=...:<=1 :and are prepared to 'accornlnodate you, in
recognition of the need to obtain the express approval of the
City Commission of the City of i•liami relative to the terns and
conditions of the settlement agreement, by consenting to enter
into a stipulation-: requesting that the Court remove the cause
from the Trial Calendar_ pencliny formal action by the City
Commission on t.; :)roposed settlement. However,' certain of the
items mentioned in your correspondence merit further.
clarification prior to submission to the City Commission for
approval anc? pr. ion- to our consenting to remove t17e case from the
r: ial <a.l.endat: .
inasmuch as 1 was unable to -contact you ;yester:day, I toori the
liberty of. communicating with Jose Alvarez of the City Attorney
off •ice in an attempt to solicit hisunderstanding of certain of
EXHIBIT
the language contained .in: your letter. This letter shall .serve
as. a summary and, a request fOra confirmation of the
understanding reached yesterday.
The instrument required-ipursUant. to paragraph_ 2 of my proposal
dated NoveMber 2, .1.979will containadditional language to the
e.f feet that Joseph: Cook is entitled: to the present Workrnen's
Compensation, Disability, Retirement and/or pension;Benefits,,,
being presently paid to him as a result of . the incident and that
our settlement- negotiations specifically conteMplatedi,..that.sas-,
consideration' arid as an -inducement to the -settlement: agreernent
he will, Continue' to -receive such benefits for: life, subject to
the rights of hisheirs therein, unless .he•-:subseciOently becomes
ineligible to receive said benefits by
Your:correspondence of November 20, 1979 fails to include a.
reference to :Paragraph 5 of My proposal: dated. November- 2, 1979
relative to the resolution. of : the !issued dispute:.,noW-- existing in
a:i'aeparate litigation matter by and :between .tbe:.Plaintiff , Joseph
Cook,and the , the :City_, of Dale W.
Thorp.
in;ar,-..conve_rsation with ,Greg, Gaebe this date, those-Hissues-appear
to have been resolved, in a-. manner accePtable,,tp.the'.:UnderSigned
as counselfor the plaintifl, Joseph hoping to
final.i.z.e,:and:consumMate Our 'settlementIn connection with that
inatter in: the iMmediate ftr :uue.
Mr. Alvarez indicated to irte that.:inasmuch as the is
hot permitted to satisfy-:any'.pUnite-:-ciamage liability of its
:police Off icer's, the City is not or
crismipsai o our clairns against the individual police officetsrelative to our .
pbnitiVe, damage claims. Accordingiy, it i.s our
understafldiflg t'nat fo1lowing the consummation of the .-isettleinent
- .
our claims
transaction, we Will .rernain ,in a..positi;on to pursue
aigainst the individual,:bfficers 'for, iptintive _datnal(leS":ShoUlcl•-,We so
elect, :provided- that all claims againstrthe-City- of: :Miami:- and its
of f iciaiS. and. those claims :against the individual 13O1iCe officers
with respect to compensatOry: damages only .shall be released and •
diSmisSed with prejudice.
If you are in accord 'with . the foregoing Please be:,.kirid,-enOUgh to
So: informus in writing, . :at. which time we will be preparedto
execute such stipulations as you, deem necessary for .presentation
to 'the 'Court in order to have the cause rernoVed from the
approaching Trial Calendar! - _ •
very truly yours,-,
McCRAI*, BERK6C3ITZ, DAVIS &- FEIG
11
EFFREY L. BERKOTZ
_ -
BY. ,.
Page Two
J11,13: els
jlOvember 21, 1979, :::
LAW OFFICiS
ND1". S 0 N & C)SS
DUANE ANDERJSON
EDWAi7D A. MOSS
STEPHEN P. LEE
KAREI•I A. GIEVEPS
Burton Young, Esq.
Young,Stern S: Tannenbaum, P.A.
P. 0. Bo: 600 550
North Miami Beach, Florida 33160
City of Miami- v.Midland :-
Case No. 79-16024 . (CAIO)
Your File No. 79 6076
Dear Mr. Young:,
SUITE Z300 NEW WORLD TOWER
' IOD'NORTI.1 BISCAYNE BOULEVARD
MIAM(, FLORIDA 33132
.TELEPHONE (3051 35a-5171
We acknowledge receipt of >yours of November 20, 1979..
Unfortunately, the letter<modifying the proposed settlement
referred to in the second paragraph of your letter was not
enclosed, therefor?, of course could not begin to respond as
we have no earthl7 idea of the substance of the modification.
Nevertiiei =ss N•:e believe you are well aware that Midland's
position in this 'ra: ter has always been that its policy of
insurance does not provide any coverage to the City of Miam•
i.
for :claims made in the case of Cook v. City of Miami., et al.,
Case No. 78-3225CF -JAG. To date, Midland has not been
supplied with any t-:e:o or relevant information that would cause
it to alter its ocsition declining coverage.
•
Regard i n.,. .ours of November 6, 1979and the proposed
'300,000.00 set:_ r-ent, we must advise you that our recently,
completed revs of the damage aspects of this claim cause the
_a
undersigned se_io:s reservations concerning the proposed settle-
ment amount. _relieve the medical discovery accomplished to
date would reasonably cause a jury to conclude that a substantial
portion of the P a_ntiff's problems are due to his lack of
motivation and unreasonable refusal to return to gainful employment.
The medical re...)rd seems to be replete' with testimony that there is
no, physical basis for Mr. Cook not to have returned to work.
Further understanding that the , primary claim of injury by this
Plaintiff is psychological, we refer you,tiginrd7VIsaintiff's own
treating psychiatrist, Dr. Albert Jaslt: L')- h's`Z ,a`tated in his
deposition that he has suggested to Mr. Cook to return to work.
and does not see ; any reason why he should not do so.
We take this opportunity to again advise you that it
is Midland's position :,that . coverage is .:not afforded :to. the City
of Miamifor this accident under Midland's policy and further
Midland has no intention of being bound by the terms and con-
ditions of any settlement entered iobetween the City of Miami
and the Plaintiffs in the or.iginaaction.
We trust ;the above clearly states our
BURTON.YOUNG
JEROME. FI.-STERN
HERBERT W. TANNENBAUM
MARTIN It. POLLNER
SFANLEY E. ISRAEL
/1RUCE J. OCNENFELO
ROBERT- O. f1ERTZOERG
OAVID A.KODAIN
NOFtMAN- MALINSKI -`
LAL•MENCE J. PORNO
GLEN C. r,AFKIN
L:\W OFFICES
YOUNG, STEIiN 4 '.11L.NNEN BAU
PROFESSIONALASSOCIATION
17071 WEST OIXIE HIGHWAY
POST OFFICE tiOX-GOO SSO
NOItTII'.Ir.L>rr 13t Acti, 1 r.otilnA.S;Ingoot
TELEPHONE (30F,) 045•IS5I
OROwA u) 1305) 5,120•9793
CAOLE "LAW11
December 4, 1979
Nor.' Edc•:ard A. Moss
ANDERSON & I1'_C'3S
Suite 2300 World Tower
100 North Biscayne Boulevard,
Miami, Florida 33132
City of `_fi v. Midland
Case No. 79-16024 (CA10)
Our File No. 79-6076
Dear Mr. Moss:
r - OF. COUNSEL
wiL1.IAM L..c'ALLor
HARVF;YRUVIN
LtRIAN-N. DERMAN
Thank you so ' very :c:uh for your letter of November 28,
1979 in re the. above
We get your mes=?ce .that Midland has not "retreated from
its position L_.:ac coverage is, not afforded to the City
of Mia::u ` uncle::: the subject Midland policy and that
"Midland` has r.o intention of being bound by the terms and
intention
conditions of settlement entered into between the
City of i:iam'i the Plaintiffs in the original action."
(Emphasis ^i.-c:'
With regard to your observation pertaining to the settlement`
amount, we wculdd be pleased to learn if your company would
bind itself at this juncture to pay all sums in excess of
$300,000.00 In ;he event the City Commission of the City.
of Miami does not approve the settlement. If your client is
willingto do this, and we can go ahead and litigate its
responsibility to pay in ;full under the terms of.the. subject
CITY OF MIAF1I V. ' MIDLAND
PAGE ,TWO
policy, we will bring the same
of the principal parties.
the attention, forthwith,
Our view, in light of the facts of this " case; recentlymade
case :Law and.. another. -verdictinthis type o.E case, leads us
to conclude that the settlement proposal is within accept-
able :Limits
Very :truly yours,
"
-NrOUN(:, _ R T,.»_>>:Nu:�irar
PROF- I:GSIONAL ASSOCIATION
FCt1A 4
.MEMORANDUM OF VOTING CONFLICT
PART A
Name:
4c4.S4
(LAST)
Address: /5` d 0''
(STREET)
2 Al oie 0 r7
(FIRST)
/.4
(MIDDLE)
,5? /.//a%
' (CITY)
ATE ON WHICH VOTE OCCURRED:
.2 V ,19 .et,
i b Telephone! ✓^/ ��y�
(A/C) (NUMBER)
(ZIP CODt (COUNTY)
PART B
Agency is a unit of [check one]
Name of Agency:
Position held in Agency:
State of Florida; ( County, City or other Political Subdivision
A
PART C
MEMORANDUM OF CONFLICT OF INTEREST IN A VOTING SITUATION [Required by; Florida Statutes § 112.3143 (1975)]
If you have voted in your official capacity upon any measure in which you had a personal, private, or professional interest which inures to
your special private gain or the special private gain of any principal by whom you are retained, please disclose the nature of your interest
below.
•
. Description of the matter upon which you voted in your official capacity.
Description of the personal, private, or professional interest you have in the above matter which inures to your special private gain or
the special private gain of any principal by whom you are retained:
/
l
o` y
yY/Gh
%uvo7L-: -07,4111111e7
Person or principal to whom thespecial gain described above will inure:
a. (> Yourself b. ( ) Principal by whom you are retained
(NAME)
PART D
FILING INSTRUCTIONS
This memorandum must be filed within fifteen (15) days following the meeting during which the voting conflict occurred with the person
responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the meeting minutes. This form need not be
filed merely to indicate the absence of a voting conflict. Florida law permits but does not require you to abstain from voting when a conflict
of interest arises; if you vote, however, thconflict must be disclosed pursuant to the requirements described above.
P/ RT E
(
SIG
CLOSING
DATE SIGNED
NOTICE: UNDER PROVISIONS OF FLORICA STATUTES §112.317 (19751, A FAILURE TO MAKE ANY REQUIRED DISCLOSURE CONSTITUTES
GROUNDS FOR AND MAY BE PUNISHED BY ONE OR MORE OF THE FOLLOWING: IMPEACHMENT, REMOVAL OR SUSPENSION FROM OFFICE
OR EMPLOYMENT, DEMOTION, REDUCTION IN SALARY, REPRIMAND, OR A CIVIL PENALTY NOT TO EXCEED S5,000.
CE FORM 4- EFF. 1/1/77
„•,BURTON YOUNG'•
•JEROME. H. STERN
HERBERT, W. TANNENBAUM
MARTIN R. POURER
.STANLEY•E.ISRAEL•
BRUCE J. BENENFELD
ROBERT 0: HERTZBERG
• DAVID A,kOBRIN
NORMAN'MALINSKI •
LAWRENCE J. FORNO
LAW OFFICES
YOUNo,STERN Be TANNENI3AUM'
PROFESSIONAL ASSOCIATION
17071 WEST DIXI E HIGHWAY
POST OFFICE BOX 600 55O
NORTH MIAMI' BEACH, FLORIDA 33100
TELEPHoNE (305) 945r1851'
aROWARD (305) 92O.9793
CABLE "LAW”
January 16, 1980
Maurice Ferre, Mayor
CITY , OF MIAMI
'Armando ,LaCassa,,.:Vice-Mayor
Joe';Caro:llo, ;City Commissioner:
J. L. ,Plummer, City,Cominissioner
Theodore R. Gibson,, City. Commissfoner
Post Of-fice: Box 330708
Miami, FL 33133
Re : • COOK v. `'CITY` OF MIAMI '.
or COUNSEL'
WILLIAM- PALLOT
HARVEY•RUVIN
BRIAN' M. BERMAN• •
Dear Mr. Mayor and Commissioners:
By appropriate resolution the undersigned together,:; with
John. R.:<Barrett was ;.appointed to work with the City;
Attorneyto defendthe City and its named" executive
officers in re the above -captioned, matter a and to take
such action as may be ..necessary, in order .to invoke any
applicable insurance coverage that wou1d afford -the,
City .protectioninvolving` the subject tnatter of this
lawsuit: Subsequently, the undersigned • was authorized,
•
as� special;counsel, to,institute a:suit for a Declaratory
Judgment naming -MidlandInsurance 'Company, the :.City ,'s
excess :.carrier, ' as the defendant_ ;to :determine the .;issue_:;
of coverage under Nidland's policy
Following our employment,subject:: to:thei-rreservation
of rights, we were: successful` in prevailing upon Appalachian
Insurance. Company to provide the City a Legal defense in
this federal action However, Appalachian;"refused"' to render
a legal. defense ,:for the :;Mayor.:. and the named City Manager
Appalachian did undertake to providea defense, under the
same reservation of rights, for the,, then Chief of police,
Bernard Garmire.. The Nayor and the City,Manager (Mr. Andrews)
were and still -are ,being, in this, action by the under-
signed. Appalachian has since filed a separate suit for
DeclaratorY Judgment in Federal Court,,; against the City of
Miami :seeking a judicial order determining that the covenants
of .the insurance policy. do not provide the'_,.City of:;Miami or
its executive.:officers with insurance protection arising out,.
Of_ the alleged assault committed upon the plaintiff, Cook.
That. lawsuit remains pending, but is scheduled for trial, on
".the ..25th:day of February, 1980.
0.-3.3 4
January16,° 1980..
Maurice`Ferre,,Mayor
CITY ,OF MIAMI, 'et .'al,
:. COOK
. ,CITY. OF MIAMI
PAGE TWO
As :'.the `above-captoncase ied u'moved closer to trial, set.t'le -
ment negotiations ensued:between'counsel:for.the plaintiff
and counsel furnished by
defendant, the City of Miami (Mr.: Greg`;Gaebe ofFowler,'
White, Burnett, Hurley, B,anick`-, Knight, P.A.' ), Nand 'the
undersigned.' ` The subject:. matter' of 'all .negotiations was:
roperl�yconveyed by the undersigned to the`City Attorney
Y
he remaining main.;defendants were;alerted
to 'settlement .negotiati,ons.
The':Court re -scheduled the trial date to the 3rd day of
December, .1979..As the trial, date approached, ;the -Settle-
ment ,discussions became more intense.
All basic discovery :has been concluded`. Both sides appear
prepared to -try the;. issues involved in this case
As a consequence of the exhaustive discovery had inthis
case,.We believe 'i.we,are.appropriately -:prepared „to assess
this.:. lawsuit's.strengths_.:and weaknesses from both sides,
for 'settlement purposes. In so doing we not only viewed
the results :of the discovery 'undertaken to determine the.
provability;`.of the .plaintiff's claim, but we •considered
the City's financial exposure and :the; cost:. to the City `.in
legal;:expenses' 'through. " trial and the::appellate;; route.
A brief.. summary: -of the allegations. of the count`
•
Complaint is in_ order.
This i.s,:an:alleged::Civil Rights v•
iolation: case:, which is;.
•
commonly_ .known as a ''.;.1983. Action".. (the case was. brought
under 42 II.S C1983),. The plaintiff alleges:that:,',he
was•::.a police. officer;. of :the -.City of Miami ;and while: dis-
chargi.eg •;his-. du,ties.;'he was viciou• sly attack•ed by ;other
police :-•officers of the City of Miami and, 'as a ';r"esult, �:he
claims. he.suffe'red;;:grave and :permanent damage L.beth,physically
YouNG, STERN ,tC T:ANNENI3 UM
PROFESSIONAL ASSOCIATION
January ``16 .1980
Maurice Ferre,:'Mayor.,
CITY OF MIAMI, et al
COOK v. CITY OF MIAMI'
PAGE THREE
and -mentally._: The plaintiff charges that the City was
negligent in failing toproperly train its police
officers and failed to.:superv;ise its "police; personnel,.
by maintaining officers on ;staff with"knownvio"lent
propensities. This, :Plaintiff' claims,.:was,an official
policy of the City of . Miami
The plaintiff further Claims —that he Was hospitalized
as a result of the beating, that he' suffered a perman.
ent injury to his back and that" he :was emotionally
damaged to the extent that he could never engage;in:police'
work which was —his selected avocation::A•.copy of the
Complaint, is appended hereto as Exhibit,"A".
For these claimed dainages the,'. plaintiff seeks compensatory
damages and punitive damages.
The. City 'and; its executiveofficers have interposed defenses.
A copy of the, defenses are appended hereto: 'as Exhibits
n ".,
In preparation for trial the following .depositions were.::`
:taken
JOSEPII COOK".;;.
ALBERT JASLOW,M.D
J E: .WILLIAMS, M D.
. S IMON E. MARKOV,ICII,- M.D.
PAUL RIVET,-M.D.
PAUL MAYER`, "M M.D.
PAUL. ANDREWS
HAROLD.DUNSKY
LT `: EMORY PUTNAM
VINCENT=J SMITH
SGT. WLLLIAM R. HEATH
ov c, STERN & 1 A' \ TNI :SUM
"PROFESSIONAL.ASSOCIATION'.:. '.':
anuary
, 1989,':
Maurice_:_"Fevre, Mayor
CITY OF MIAMI,'et al
Re: COOK v. CITY OF MIAMI
PAGE, FOUR'
The plaintiff moved to strike certain of .the defendants'
`defensescopies of the.Court'_s Orders thereonare.ap.pended
hereto as::Exhibits
As far as, damages are concerned, the defendant, City' of
M••i'ami',, moved to strike the claim for ;punitive``damages,
and ;the Court _grantedthe-Motion ; as to Counts 7 :;and 8,
which 'are the State Comtnon Law claims, "and: denied.: defendants
•Motion on the other Counts, subject to renewal at time of
trial.
The issues, as we find for a jury determination. are:
Was the plaintiff assaulted?` •
▪ Was the plaintiff assaulted by fellow police officers?
Were the fellow police officers, if they did cotntnit the
assault, , acting in the scope or courseof their 'employ-
ment?`;..
• Did the City and the City's' officials ratify unrepremanded
conduct of its police officers, :improperly train, super-
vise and maintain its .police:. personnel and,if so, did the
City's failure : constitute an ';official ;policy" of the City?
extent?
• I'f ;the ,plaintiff was assaulted, was 'the ::asault and the
circumstances (including the alleged. "official policy"
[if so .found] )surrounding the same so outrageous as to
warrant the assessment of punitive "damages?..
There :are ;a multitude of legal considerations- that must be
considered in evaluating these issues as the case law remains
ina developing stage.
As :stated, :the plaintiff_, Cook, : contends that. he :was- brutally
attacked: by fellow police officers; which attack` has had - the
effect of forever disabling him ;from, engaging in like, police. work.
Though' he ,contends; that,. he has, `as:".a result;.of ;this'incide'nt,
an injury to hie back;' and neck, his s:"major' area ..,of .complaint,
i,s his claim of .psychological dainage We ,pause to note that
You. c, STERN
:'PROFESSIONAL ASSOCIATION"
•
January 16, 1980
Maurice Ferre, Mayor.,
CITY OF MIAMI, et al
COOK v.-CITY:OF MIAMI
PAGE 'FIVE
the City has retired the plaintiff, Cook, and he is presently
on pension, which retirement was predicated upon his claimed
physical and mental damage allegedly arising, as a result of.
the subject incident.
If the plaintiff prevails at' trial on the issue of liability.,
he will ostensibly claim a loss of earnings and earning capa-
city which would be normally offset by ,his pension arid what
he might earn inother. endeavorsoutside of police work:
Anothersignificant element, of course, would be the painand
suffering that he allegedly experienced and will continue to
experience as a result of the incident.,
The liability issue -
The Court has sustained the plaintiff's? Complaint as against
an attack upon "its'. legal' sufficiency. The Court, on Febru-
ary 5, 1979, filed - a "`written opinion in which the , Court dis-
cussed the legal contentions of the parties, viz:
"The defendants, Ferre, Andrews, amire an
City of Miarni, have ,moved- to dismiss : the Plaintiff
1983 claims as -to them arguing that under the recent
decision of Monell v. Departmentof Social Services
ofthe City of New York, 98 Ss.Ct. 2018'-(1978)local�..
government officials. cannot ,be found.liab`le predicated
solely upon a:theory, of respondeat superior. "Defendants'."
reading of the Monell decision is correctThe applica-
tion Of the Monell decision to the facts sub judice,,
however, does not compel the dismissal sought by the
defendants.
In ruling' upon a motion to dismiss the' Court does,
of course, ".take all the well plead allegations of the
complaint as true. Cooper -v. -Pate, 378 US 546<(1974);
National Bank of Commerce of Dallas v. All -American
AssuranceCo. , 583 F2d 1295 ;(5th-,_Cir .";.1978); .:Reid -v
Hughes,578F2d 634 (5th Cir :.1978);; and Slavin".v. Curry,
574 F2d 1256 (5th. Cir. 1978)'.
"oLac., STLI2N-.` 'rAN, .r ,3.:ua
PROFESSIONAL ASSOCIATION
January '16`,; 1980
Maurice Terre,: Mayor.
CITY- OF MIAMI, et al.
Re:• COOK v. CITY 'OF'MIAMI.
PAGE ,SIX
The. plaintiff's complaint: alleges that:t e
defendants.Ferre,' Andrews, and Gamire,.acting
as.;policy making' officials of .the .Ci"ty.,?;of Miami,
failed= to control the behavior of subordinate"
employees thereby_ ratifying .the unrepremanded
conduct,. and creating.'a de', facto departmental
po.licy,,..,- Taking ,the'se allegat„ions;, as true, the:
defendants,, Ferre, Andrews, Gamine and< City of :,.
Miami".co`ul.d -be 'found liable .for.:the,'civil`,rights
violations„"of Outlaw, Thorp," Smith and'. -Campbell;:
See., =Turpin v. <Mailet,. 579:,F.2d 152 (2nd, Cir`.,1978) .
The .Count finds that::""per onal participation",
is:not a necessary p_r:.erequisi'te to imposing lia-
bility ;upon the.:'super.visory defen.dants`. See
Sims v. ;Adams ,..537.:`F"2d. 829_,.(5th C.ir..1976)'. The
Sims; 'Adams decision teaches that where.a mayor
and/or police .chief e breach their duty ''to :`control
a; pol'cetnan'.s known -propensity for improper use
o'f, force":1-983�<l,iabi°lity .may',follow
The defendants seek to have th'e plaintiff's,;;.claim
f'or recovery predicated :upon' the :,F.our.teenth Amend
ment.to:.the United"S:tat,es..Constitution' dismissed.
The, defendants,'ar ue ,that' a ,'=:Bivens type" cause of '_ .'
action'."may not"be :as;s,err d".:by; a"plaintiff;'`.where
statutory relief is.;available'. See e.`g. Molina v.
:Richardson. 578.F:=2d:846 (9th:Cir. ��,1978):; "'C,f ,::;Curran
vs:. Po-inland:`Superintending°Schoo'1:Committee, _435
F-.S"upp'. 1063 (S.D Me 1977) Th;e::`Fifth Circuit,
however, has rejected this argument Reeves v City
of'.:.T"ackson,: 532 :F2d'491;,(5th� :Cir.'" 1976) , 4 see also
Davis: w: `Passman: 544 F2d(`S,th Cir 1.977)
PROFESSIONAL ASSOCIATION
Maurice Ferre, Mayor.
CITY OF MIAMI, et al
, -
Re: COOK v. CITY OF MIAMI
PAGE SEVEN.
The defendants also seek to have the plaintiff
demand- for punitive damages stricken from the
complaint. Defendants argument that punitive
damages ,may not be aWarded-to redress a civil.
rights victim is not ihe law in-' :ihis 'circuit. •
See -,ClaibOrne,,vs. Illinois- Central Railroad,
• 583 F2d •143. (5th Cir. 1978). Gore v. Turner,
563 F2d, 159 ,(5th Cir. 1978); Burman v. •Bay
City Independent School District, 445 F.SuPP.-
927 (D.C.- Tex. 1978). See also Shaw v. Garrison,
545 F2d 980 (5th Cir. 1977). Batista'v:
340 F2d 74 (3rd Cir. 1965); Gill v. -Manue1,488 •
•
F2d 799 (9th- Cir. 1973) and Caperci Huntoon, ' . •
397 F2d 799 (1st Cir '1968). See generally
Punitive Damages in Actions for Violations of
Federal Civil Rights Acts", 14.A.L.R. Fed. 608
Likewise the plaintiff's contention that the.
defendant police -officers are not ,entitled .to
a qualified immunity has no, foundation in the,
law of this circuit. See PrOcuni.er v. 'Nauarette,
98 S:Ct; 855 (1978); Itnb1erv. Pachtman,- 424U.S.
409 (1976)1 `Pieison v. ,Ray, 386 ,U.S. 547 -(1967)-; •
Richardson, V.. City of. Conroe,, 582 F2d• 19 •(5th Cir. •
1978); •Downs v: •Sawteele, 574 F2d Cir.,i1978);
Adams v. Sims, •537 F2d 829 (5th Cir.-. *1976); :Byron v:.
Jones, 530 F2d 1210 (5th Cir. 1976).. - See, also •
Jennings 1.r. Schuman, 567 F2d 1213 (1st Cir. 1977.)w
A full copy of said Order is appended hereto as Exhibit F .
'rAN
. .
PROFESSIONAL ASSOCiATiotj'....
. „
January 16',•1980
Maurice Ferre, Mayor
CITY. OF`MIAMI, et al
Re: COOK v. CITY OF MIAMI'_
PAGE EIGHT
The settlement .proposal
A settlement proposal is set forth in an exchange of
letters by counsel. The first letter is dated Novem
ber 2,;.1979.received ._from plaintiff's counsel. A copy .`
of which is appended hereto as Exhibit "G". The City
Attorney, and the undersigned counsel. responded to
plaintiff's counsel by letter dated November 20, 1979.
A copy of which is appended hereto as Exhibit ''H"
Plaintiff's counsel confirmed and replied on November 21,
1979..A copy of which.is: appended;, hereto as Exhibit "I"`.
These three letters full set forth the terms of the
proposed settlement.
In';summary, the settlement, if approved, would require
the .:Plaintiff to release, the City and its executive
officers from all liability,arising as a result of the
alleged assault, for the payment;. of $300,000.00, together
with the Understanding that the City shall continue all
benefits presently being received by the plaintiff and as
long:as:'the:.`plaintiff°`'remains. eligible under the law.
Opinion of Counsel
We have conveyed the settlement proposal to all of the
named defendants in this lawsuit and; have requested their
participation in the funding of a settlement if the same
was approved by the City Commission. Additionally, we
have requested Appalachian Insurance Company and Midland
p y . -
Insurance Company -Com an to . participate ate: in funding a settlement
and/or to settle this lawsuit within the policy limits.
Both insurance companies have refused to settle this
case, within policy _limits, both contending that their
company-was not boundonthe risk. However, Appalachian
Insurance.. Company has indicated that it is willing to
contribute $10,000;. towards a settlement,advance $90,000
to fund the settlement, provided thatin the event they
are successful in the Declaratory Judgment action that
the City of Miami refund. the $90,000. Midland Insurance
YOUNG, STI3I2N-,C` IA\NENIIAU I
PROFESSIONAL' ASSOCIATION
January 16, 1980
Company...totally refuses to participate in the settlement
and, in; fact, hasadvised `us:in writing that though they::.
denied coverage,,they thought the amount of the proposal
was. exce"ssive.'= We asked, inresponse;:.to their.- letter,
a copy of which is :appended heretoas Exhibit '''", to ,take:.
over the: defense Of, the lawsuit .and indemnify _ the ,City.
for- any ;amount : in excess ofOf-the amount this case could - be '
settled .for'. Midland Insurance "Company has failed to this date
to :respond : to our suggestion.
It 'is the opinion of counsel that the settlement, as proposed,
be accepted andconfirmed by the City Commission as being in`
the_best
est interest of the City of Miami.
Yot c, STERN & 'ANNENBAU)M ...
PROFESSIONAL' 4SSOCIATION `•
S - 3 3