I'm surprised that no one has offered this solution up before, or else I've
missed it. In the US, you have a federal law that prohibits illegal laws. I'm
enclosing an article I wrote on this some time back, so it's slightly dated,
but the substantive information is accurate. It's lengthy, but it IS the
solution to this crap.
If you pass this email on to anyone, please include the statement: [Copyright
2008,
W. Moran. Permission granted to republish by W. Moran].
I am not an American and I have no standing nor desire to involve myself in
this sort of lawsuit - however, if one of you is annoyed enough over the issue
to do something, this is the tool.
Wally
s/v Gypsy Wind
lying Annapolis Md
(for now, heading south next week...)
To all intents and appearances, there is a war going on between cruisers and
Florida's municipal bureaucrats over anchoring. And despite the state's
enactment in July 2006 of legislation intended to solve the problem, the
sniping continues from behind the desks of officialdom.
Perhaps it's time for cruisers to pick up the loaded weapon that's been in
front of us all this time: U.S. Code 42 Section 1983. Rather than quote the
Section here, let me repeat what one expert has stated is its meaning: "Section
1983 authorizes a private, civil lawsuit against any person who abuses state or
local government authority to violate another person's civil rights. In short,
the statute creates a lawsuit for abuse of government power".
Well! Isn't that interesting? Now, just what does it mean to you and I?
Essentially, it means that if you are approached in Florida by a police officer
(or other government employee) who tells you to move your boat because you are
violating a municipal anchoring ordinance, that individual is breaking the law
and may be subject to the loss of what is termed 'qualified immunity'.
Qualified immunity broadly means that a government employee cannot be sued for
doing his job, unless - and this is where it gets interesting - unless he is
violating your rights. There are caveats to that statement, but that's the meat
of it.
Not only that but "a plaintiff in an action under Section 1983 may sue the
governmental entity or the municipality itself, in addition to or instead of
suing individual agents in their official and/or individual capacities."
All of that means that the officer's boss, his bosses' boss, even the entire
municipality including the mayor, may be subject to a civil lawsuit.
In the real world it means that if an officer knows he is likely to be sued for
enforcing a local ordinance which is, to all intents and purposes, unlawful,
he's not really very likely to write you a ticket. It also means that his
sergeant, and his sergeant's boss, the Chief and all those other bureaucrats on
up to the mayor are far less likely to tell that poor cop, who doesn't make
policy and who's just doing the job he's being paid to do, are probably far
less likely to tell that officer to go out and ticket boats at anchor, because
they might get sued. And nobody enjoys being sued.
By now, a lot of you out there are smiling, aren't you?
The Supreme Court has commented on the issue of immunity. For example, the law
"must be sufficiently clear that a reasonable officer would have known that his
actions violated the law." Amato v. City of Richmond, 875 F. Supp. 112, 1142
(E.D. Va. 1994).
In another case, the Court says: "whether an official may be held personally
liable for unlawful official action turns on "the 'objective legal
reasonableness' of the action . . . assessed in light of the legal rules that
were 'clearly established' at the time it was taken." Anderson v. Creighton,
483 U.S. at 639; see also Price v. Sasser, 65 F.3d 342, 345 (4th Cir. 1995)."
Given the above (and similar) findings of the Court, we can now ask, is it
reasonable to expect that Florida police forces are aware of the State of
Florida's anchoring legislation and its ramifications? Is that law "clearly
established"?
Yes to both questions. And in any event, in yet another judgment on qualified
immunity, the Supreme Court has gone as far as to say that officers are
'presumed' to know the law, a not unreasonable conclusion.
Beyond that however, there has been much public discussion of the anchoring
issue - it's been a hot topic for years. There have been numerous seminars for
law enforcement professionals at which the issue has been discussed and, given
that they have to enforce municipal laws, anything affecting those laws is
going to be examined. In the City of Melbourne for example, a municipal
attorney was specifically detailed to monitor the issue. It would be safe to
presume this is the norm in Florida's coastal towns and cities.
Furthermore, the recent decision in Naples regarding that city's anchoring
legislation and the ruling judge's strongly worded criticism of that city's
actions (as reported here in cruisersnet.net - ed.) has rung bells throughout
the state's coastal municipalities. In fact, on January 12, Captain Alan
Richard of the FWC presented the judgment, including Judge Crown's harsh words
to Marco Island, to a judicial continuing education seminar. This seminar
included almost every county court judge in Florida!
It is quite clear to all - or should be now - that the state has spoken and the
courts have ruled on the issue, appeals notwithstanding. Unless there is a rash
of 'anchoring' tickets with courts ruling against boaters or the state rescinds
the anchoring legislation, the law as the state has written it seems pretty
clear: municipalities cannot legislate anchoring outside of very strict limits.
So what happens next? I suspect that ultimately, as happened in Naples, someone
is going to have to stand up and take a ticket from one of the municipalities
currently violating the State legislation. That person will then have to sue
the officer and municipality in civil court on a Section 1983 violation. Given
the Marco Island decision, he or she would beat the ticket, clearing the way
for a slam dunk 1983 case.
Or, as I would hope will happen, a boating organization or some enterprising
boat owning lawyer will put together a formal notice which cruisers can hand to
a police officer advising them of our rights under the law and that, should a
ticket be issued in violation of the state anchoring legislation, the boater
will sue the officer personally, the police force, municipality and all of the
individuals involved, including the City Council and Mayor. It also wouldn't
hurt to advise cities such as Fort Lauderdale that consistently violate the
state's legislation that they face civil lawsuits under Section 1983 if they
hand out anchoring tickets.
In fact, it would be interesting if someone were to deliberately court a ticket
in Fort Lauderdale and then sue the Mayor of Ft. Lauderdale over it. That might
get some attention now, wouldn't it?
I've saved the best two words for last: fee shifting. The defendant in a
Section 1983 case, should he lose, must pay the complainant's legal fees, which
helps to raise settlement values "substantially", according to Jon Loevy of the
Dupage County Bar Association.
He goes on to say in an online article: "Most importantly, however, this also
permits plaintiff’s attorneys to pursue cases which would otherwise not be
cost-effective, exactly what Congress intended in creating this incentive.
Without fee shifting, somebody with a "smaller" civil rights claim would find
it next to impossible to vindicate their rights as it would be cost-prohibitive
for any attorney to litigate on a strictly contingent basis.
Loevy continues, "Congress reasoned that where a governmental entity is forced
to defend (and therefore face) unconstitutional policies and practices in open
court, changes tend to be made."
Cruisers, raise your weapon... FIRE! Let's give the bureaucrats a taste of
their own medicine.
(The author of this article is not a lawyer and this article is for information
purposes only and is not intended to provide legal advice. Seek qualified legal
advice before acting on this information.)
__________________________________________________________________
Instant Messaging, free SMS, sharing photos and more... Try the new Yahoo!
Canada Messenger at http://ca.beta.messenger.yahoo.com/_______________________________________________
Liveaboard mailing list
Liveaboard@liveaboardnow.org
To adjust your membership settings over the web
http://www.liveaboardnow.org/mailman/listinfo/liveaboard
To subscribe send an email to [EMAIL PROTECTED]
To unsubscribe send an email to [EMAIL PROTECTED]
The archives are at http://www.liveaboardnow.org/pipermail/liveaboard/
To search the archives http://www.mail-archive.com/liveaboard@liveaboardnow.org
The Mailman Users Guide can be found here
http://www.gnu.org/software/mailman/mailman-member/index.html
