miller v 50 state - federal civil rights complaint

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case No: CARLOS MILLER, Plaintiff, vs. 50 STATE SECURITY SERVICE, INC., Defendant. _______________________________________________/

COMPLAINT AND DEMAND FOR JURY TRIAL

The Plaintiff, CARLOS MILLER, (“MILLER”), by and through his undersigned

attorneys, sues Defendant, 50 STATE SECURITY SERVICE, INC., (“50 STATE”), a Florida

Corporation and alleges:

INTRODUCTION

1. This is a civil rights action brought under 42 U.S.C. §§ 1983 and 1988, on

behalf of Plaintiff, MILLER, a Miami based multi-‐media photojournalist, author, and

advocate for the rights of photographers, whose rights under the First and Fourth

Amendments were violated by Defendant, 50 STATE SECURITY SERVICE, INC., due to the

Defendant’s willful indifference and reckless disregard for the federally protected rights of

the Plaintiff and the public at large at the numerous Metrorail Facilities that Defendant is

responsible to protect pursuant to their contract with Miami Dade County Transit

Authority.

2. It is further alleged that the individual security officers made an

unreasonable seizure of Plaintiff and violated his right of free expression. It is further

Case 1:13-cv-20552-XXXX Document 1 Entered on FLSD Docket 02/14/2013 of 34

srcohiba

Typewritten Text

13-CV-20552-King/McAliley

srcohiba

Typewritten Text

srcohiba

Typewritten Text

srcohiba

Typewritten Text

2

alleged that these constitutional violations and torts were committed as a result of policies,

practices and customs of 50 State Security Service, Inc.

3. In addition to the federal civil rights claims, Plaintiff, Miller, also seeks relief

for damages he incurred as a result of the negligent training, supervision, and retention, of

its employees. As a result of Defendant’s negligence, Plaintiff was the victim of multiple

assaults, batteries, false imprisonment, and other deprivations, by Defendant’s employees

while Plaintiff, MILLER, was either attempting to exercise his First Amendment right to

videotape or take photographs the public areas of the Douglas Road Metrorail Station on

matters of public concern or simply because he was taking pictures on a train platform at

the Downtown Miami Government Center station.

JURISDICTION & VENUE ALLEGATIONS

4. This court has federal-‐question jurisdiction over plaintiff’s federal claims

pursuant to 28 U.S.C. § 1331. Because the state claims arise out of the same nucleus of

operative facts as do the federal claims, this court has supplemental jurisdiction over the

state claims pursuant to 28 U.S.C. § 1367.

5. Venue is proper in Miami-‐Dade County because it is where the events

complained of occurred.

PARTIES

6. Plaintiff, MILLER, is a citizen of the State of Florida and a resident of Dade

County and is otherwise sui juris.

7. Defendant, 50 STATE, was and continues to be a Florida corporation

authorized to and, in fact, doing business in Miami-‐Dade County, Florida.


3

8. At all times material hereto, 50 STATE, touts itself as “a leader in the security

services industry … provid[ing] comprehensive security solutions that address your

security challenges.”

9. Additionally, Defendant, 50 STATE, represents to the public that it “provides

professional licensed armed and unarmed security officers who are carefully screened and

trained.”

10. At all times material hereto, Defendant, 50 STATE, contracts with both

private and public entities, including, without limitation, municipalities such as Miami-‐

Dade County, Florida. Accordingly, Defendant, 50 STATE, also provides a guarantee that all

of its security “are required to adhere to all federal, state and local laws, which apply to the

provision of security services.”

11. Given that Defendant’s, 50 STATE, personnel that are hired to provide

security services for public buildings and public property, and are expected to interact with

the public, the company again represents that its employees are provided specialized

training depending on the nature of the assignment, by providing the following:

* Pre-‐assignment training up to 100 hours

* Continuing education training up to 24 hours annually

* Classroom instruction; and

* On-‐site supervised instruction.

12. Among the topics that Defendant purports to train its personnel include

“terrorism threat response and security officers training.”

13. Defendant, 50 STATE, also represents touts its services by providing that:

a. an Account Manager is assigned to every security officer;


4

b. an Account Manager primary liaison for its customers who shall provide

support to the security officer 24 hours per day and 7 days per week; and

c. Field Supervision provides support to and inspections of security officer

workforce.

14. Miami-‐Dade Transit, one of the largest departments of Miami-‐Dade County

government, is responsible for planning for and providing all public transit services in the

county, including providing security on the 22 Metrorail stations throughout Miami-‐Dade

County. As a result, Miami Dade County Transit entered into a contract with Defendant, 50

STATE, to providing security services and personnel at the County’s Metrorail stations.

15. Between 2010 and 2012, Metrorail has an average between 17 and 18

million passengers per year.

16. At all times material hereto, Defendant, 50 STATE, was providing security

services and personnel at the Douglas Road Metrorail Station located at 3100 South

Douglas Road, Coral Gables, Florida and at the Government Center Station located at 111

NW 1st St #2510 Miami, Florida. Defendant’s, 50 STATE, security personnel are uniformed

and most, if not all, are armed with weapons, handcuffs, and other tools commonly kept by

sworn law enforcement officers.

17. By virtue of its contract to provide security at all of Miami Dade Transit’s

Metrorail Station, at all material times, Defendant, 50 STATE, and in all of their acts

described hereto, were acting under color of state law and color of their authority as

contract security guards for public facilities owned and operated by Miami Dade County,

Florida. At all times, Defendant was engaged in conduct that was the proximate cause of the

violations of Plaintiff’s federally protected rights, as more particularized herein.


5

18. At all times material hereto, Plaintiff, MILLER, was a business invitee at the

Douglas Road and Government Center Metrorail Stations.

The June 30, 2010 Incident – Douglas Road Station

19. On or about June 30, 2010, while at the parking lot of the Douglas Road

Station with another photojournalist taking pictures, Miller was approached by one of

Defendant’s security guards who advised them that they were forbidden from taking

photos on public property because of a purported federal law, when no such law exists.

20. Stretch Ledford, the photojournalist who was with Plaintiff, MILLER,

provided the guard with a copy of an email he had received from Eric Muntan, the Director

of Security for Miami-‐Dade Transit, stating that non-‐commercial photography was

permitted on the Metrorail and at the Metrorail stations.

21. The email contained the pertinent portions of the Miami-‐Dade County Code,

section 30B-‐5(2) which states in pertinent part:

Commercial photography or recording. No person, unless authorized in writing by MDTA or the County Manager when appropriate under Section 2-‐11.14 of this Code, shall take still, motion, or sound motion pictures or sound records or recordings of voices or otherwise for commercial, training or educational purposes, other than news coverage anywhere in the transit system. 22. The aforementioned email also contained a reference to Miami-‐Dade County

Ordinance Sec. 2-‐11.14 (2) (iii), which states the following:

“[n]othing in this section shall require any permit from: (i) Individuals filming or video taping only for their own personal or family use; (ii) Employees of print or electronic news media when filming on-‐going news events. This exception shall not apply to simulations or re-‐enactments orchestrated by print or electronic news media; or (iii) Students and faculty filming exclusively for educational purposes. “ 23. The Defendant’s security guard, apparently having never been trained or

instructed what the law was with respect to the use of photography in public places, such


6

as Metrorail, then proceeding to call the police. Then, this guard, along with two other

female security guards forbade the Plaintiff and Mr. Ledford from entering the Metrorail

station, even though they both had tickets and had a legal right to do so. Evidently, the two

female security guards were likewise abysmally ignorant of the law and of the First

Amendment right the Plaintiff had as a private citizen and a journalist to take photographs

and video at the Metrorail station.

24. A security captain (supervisor) shortly arrived and was provided a copy of

the email with the language of the pertinent Miami Dade County Code. The security captain

also appeared clueless of the law, or he intentionally chose to disregard it.

25. Miami-‐Dade Police then arrived at the scene and ran background checks on

MILLER and Ledford that determined that these journalists were not on any terrorist watch

list or members of some subversive organization.

26. Despite this, the Captain for Defendant, 50 State, informed Plaintiff, MILLER,

and Mr. Ledford that they were “permanently banned” from ever riding the Metrorail again

notwithstanding the fact that the Plaintiff, MILLER, had not violated any law, rule, or

regulation.

27. Defendant had no legal authority to “permanently ban” Plaintiff or anyone

from riding a public transit train simply because they were taking pictures and video on

public property for non-‐commercial purposes protected by the First Amendment to the

United States Constitution.


7

The July 28, 2010 Incident – Douglas Road Station

28. On July 28, 2010, Plaintiff, MILLER, returned to the Douglas Road Metrorail

station with a news crew from HD Net who were working on a story about photography in

public places and who were chronicling the June 30, 2010 incident.

29. While in the parking lot, none of the security guards said anything to Plaintiff,

MILLER. Plaintiff purchased a ticket and entered the station and began shooting video. At

all times material hereto, Plaintiff, MILLER, was once again a business invitee at the

Douglas Road Metrorail Station.

30. However, within a minute of Plaintiff entering the station, one of Defendant’s

security agents started approaching Plaintiff in an aggressive manner and raised fist telling

him that he was not allowed to videotape at the station. Plaintiff continued filming while

clearly walking backwards away from the threatening guard. Then within a matter of

seconds, a second security guard wearing a black beret and single glove stealthily came up

alongside Plaintiff, MILLER, striking him and causing Plaintiff’s camera to fall to the floor.

The security guard then picked up the video camera belonging to Plaintiff, MILLER, and put

it in his pocket and unlawfully refused to return it to Plaintiff, MILLER.

31. Plaintiff, MILLER, then took out his Apple iPhone to continue videotaping the

incident and asking for the return of his camera. The Defendant’s armed security guard

then repeatedly pushed and battered the Plaintiff in an aggressive manner in an attempt to

remove the iPhone from Plaintiff’s hand. Plaintiff, MILLER, then attempted to defend

himself from the battery, wherein the Defendant’s security guard then charged Plaintiff,

MILLER, with an ASP Tactical Carbon Steel Baton in an attempt to once again strike


8

Plaintiff’s person. Plaintiff, fearing additional injuries, retreated to the area next to the

television crew.

32. At all times material hereto, Plaintiff was lawfully on the premises of the

Douglas Road Metrorail station. At all times material hereto, Plaintiff was within his First

Amendment rights of free expression as a private citizen and a member of the press to take

still photographs and video on all publically accessible common areas of the Metrorail

Station including the parking area, the turnstiles, the lobby and train platform areas.

Further, at all times material hereto, Plaintiff has a Fourth Amendment right to be free of

excessive force and unreasonable seizures of his person and property

33. Mr. MILLER did not engage in any unlawful conduct that would have justified

him being assaulted and battered by Defendant’s security personnel.

34. What happened to Plaintiff, MILLER, was not an isolated incident of the

Defendant’s use of unreasonable and excessive force and harassment of patrons taking

photographs or video on Metrorail property.

35. The force used by the Defendant’s agents against Plaintiff, MILLER, was

excessive and without lawful justification.

36. Plaintiff, MILLER’s presence and act of taking photographs and video at the

Metrorail station did not pose any risk to the Defendant’s agents or members of the public

located at the Metrorail station. No reasonable security personnel could have concluded

that MILLER posed any risk of harm to the security officers or to other persons or property

in the area. Rather, MILLER was an independent photojournalist filming the events at the

station while moving away from the advancing security personnel. MILLER’s actions were

specifically permitted under the Miami Dade County Code.


9

37. Plaintiff, MILLER, was targeted, assaulted and battered, and was deprived of

his personal property solely because he was visually recording what many people would

later complain to be excessive use of force and harassment by Defendant’s security

personnel against photographers.

38. Defendant knew or should have known Plaintiff, MILLER, posed no threat to

its employees, or to other persons or property in the area, and therefore their excessive

use of physical force against him was unreasonable and violated, inter alia, his First

Amendment rights.

39. Defendant failed to properly train its personnel on the appropriate use of

force and failed to train and instruct its security officers, and restrict the use of such force

and weapons, such as the ASP, against non-‐threatening individuals such as Plaintiff,

MILLER, was a reckless disregard of his civil rights as a non-‐violent, non-‐threatening

individual. Furthermore, Defendant failed to properly train and instruct its personnel as to

the type of lawful conduct, such as non-‐commercial still and video photography, that was

permitted on the Metrorail grounds without a permit. In fact, the Defendants also failed to

properly train their employees as evidenced by the fact that the employees instructed

Plaintiff and others that their sole act of photographing and videotaping the premises was

in violation of federal law, and their subsequent detention of Plaintiff (who was forced to

undergo the humiliation of a background check against terrorist watch lists) when he had

the right to enter the station and ride the train, as well as their advising Plaintiff that he

was banned from ever riding the Metrorail and entering any Metrorail station. No

reasonable security officer could have believed that Plaintiff, MILLER, posed any risk of

harm to the security officers or other persons or property in the area. Moreover, at no time


10

did Plaintiff, MILLER, photograph or videotape any area of the Metrorail station where an

expectation of privacy existed.

October 28, 2010 Incident – University of Miami Station

40. On October 28, 2010, months after the above incidents, Plaintiff visited the

United of Miami Metrorail Station. While in the public area outside the station, Plaintiff

began to videotape with his iPhone and was advised by security guard Y. Guevara that

Plaintiff was not allowed to videotape. He was then approached by another security guard,

Carlos Rodriguez, who came without legal justification and assaulted Plaintiff and

Plaintiff’s companion in an attempt to take away their personal property for videotaping in

a public area. Rodriguez indicated that they were not allowed to videotape in the public

area. As before, no reasonable security officer could have believed that Plaintiff, MILLER,

posed any risk of harm to the security officers or other persons or property in the area.

Moreover, at no time did Plaintiff, MILLER, photograph or videotape any area of the

Metrorail station where an expectation of privacy existed.

The January 20, 2013 Incident – Government Center Station

41. On March 28, 2011, Plaintiff filed a lawsuit against Defendant, 50 State, for

the June 30, 2010 and July 28, 2010 incidents. Defendant was on notice of the nature of the

claims brought by Plaintiff and were on notice that any member of the public has a

constitutional right to take non-‐commercial photos and videos on all publicly accessible

areas of the Metrorail and Metrorail Stations.

42. On January 20, 2013, Plaintiff, Miller, and a friend from California in

Downtown Miami to visit friends and enjoy dinner at a Downtown Miami pizza restaurant.

After finishing their meal, around 11:40 pm, Plaintiff and his friend decided to try and


11

catch the Metrorail home instead of spending money on a cab. Because of the hour,

Plaintiff and his friend had to hurry to catch the last train from Downtown Miami to the

Coconut Grove station which is near Plaintiff’s home.

43. Plaintiff and his companion made their way to the Omni Station Metromover,

then stepped off at Government Center where they paid for their tickets, then made their

way up to the platform where they had planned to take the southbound train to the

Coconut Grove station.

44. While waiting for the southbound train, Plaintiff’s companion decided to take

photos of the Dade County Courthouse, which was beautifully illuminated at night and

which is visible from the Government Center platform.

45. As Plaintiff’s companion was taking handheld snapshots of the Courthouse,

Plaintiff, Miller, took out his Apple iPhone and started taking a photo of his companion so

he could upload it to Facebook and tag his friend as having a good time in Miami;

something millions of people do each day.

46. Suddenly, a loud voice came over the loudspeaker mentioning something

about the “two guys taking photos” and , “get down from there.”

47. At all times material hereto, Plaintiff and his companion were in the

publically accessible area of the Metrorail Station.

48. Given Plaintiff’s prior experience with Defendant’s Metrorail security, and

because Plaintiff and his friend knew they were not breaking any law, rule, or regulation, so

Plaintiff began video recording with his cell phone because he anticipated Defendant’s

security guards confronting them as they had done in the past for taking photos.


12

49. Plaintiff spotted the guards as they were approaching and greeted them with

and walked up towards them with, “how are you doing, sir?”

50. The armed guard, whose named turned out to be R. Perez, responded by

telling Plaintiff that they were not allowed to take pictures of the rail because it was

“against the law” which is clearly untrue.

51. Plaintiff then advised Mr. Perez that they had not been photographing the

rail, but asked him to elaborate since there was no such law, rule, or regulation. Perez then

ordered Plaintiff to turn off his iPhone camera or Plaintiff would get kicked out of the

station.

52. Plaintiff them read Mr. Perez’s nametag and asked him to confirm his name.

Perez, clearly became more agitated and moved into Plaintiff’s personal space, close to his

face, and accused Plaintiff of being drunk, which Plaintiff was not.

53. A second security guard whose name was Gutierrez, then began moving in

closer. At that point, Perez assaulted and battered Plaintiff by grabbing his arm as Plaintiff

kept telling him not to touch him because he knew that he had not broken any laws nor was

he being physically confrontational. Plaintiff kept insisting that he was there lawfully, had

not broken any laws, and fully intended on getting on the next train so he could go home.

The guards then advised that Plaintiff was not going to be allowed to board the train and

had to leave the premises.

54. Moments later, one of the guards advised that the police had been called. At

this point, a third armed security guard named R. Myer walked up, forcibly grabbed

Plaintiff and began to push him towards the escalator.


13

55. While Plaintiff attempted to walk down the escalator, one of the guards

attempted to push him down the stairs. When Plaintiff resisted the unlawful use of force

being used on him, two of the guards then pounced on Plaintiff. One of the guards, who

upon information and belief was Gutierrez, then reached out and slapped the camera out

of Plaintiff’s companion’s hands to prevent him from video recording the altercation. The

guard kept telling Plaintiff’s companion to shut off his camera.

56. The Defendant’s guards ended up going down the elevator with Guard Myer

placing Plaintiff in a suffocating chokehold that left him unable to breathe.

57. At one point at the bottom of the escalator, Gutierrez placed his arm on top of

Plaintiff’s head and forcibly pushed it down, causing Plaintiff to further suffocate and suffer

physical distress.

58. At this point, Plaintiff began breathing heavy because he felt as I was going

to suffocate. Plaintiff then began pleading for help and for someone to call police because

he saw several people watching from above.

59. Defendant’s agents then forcibly and unlawfully restrained Plaintiff against

his will and placed Plaintiff and his companion in handcuffs.

60. Minutes later, the guards walked Plaintiff and his companion downstairs

near the turnstiles to wait for police.

61. Once downstairs, Plaintiff and his companion, both handcuffed and

physically restrained against their will, were unlawfully ordered to sit down to wait for

police. Police then arrived, including at least one more from the Miami Police Department

and several others from the Miami-‐Dade Police Department. Paramedics arrived as well.


14

62. After over 30 minutes of being physically and unlawfully restrained against

their will, Defendant’s guards removed their handcuffs only to place new handcuffs on

them because they were transferring Plaintiff and his companion from the custody of the

50 State security guards to the Miami-‐Dade Police Department.

63. Plaintiff and his companion were lead outside and ordered to sit in the back

of a couple of patrol cars. Plaintiff kept asking them to release them without taking them to

jail because they had not committed a crime.

64. A conversation ensued between the security guards and the police about

what to charge Plaintiff and his friend with.

65. Plaintiff and his friend were eventually released and were given a bogus

citation for making excessive noise, which was fabricated as evidenced by the video footage

of the incident. After being given the citation and allowing themselves to be fingerprinted,

the Plaintiff and his companion were told they were free to go, but were told they were

being banned from using the Metrorail for 30 days. After receiving the citation, the Plaintiff

and his companion then took a taxi cab to go home.

As to the Complaint in its Entirety

66. At all times material hereto, providing security to public transportation

facilities, such as Miami-‐Dade County Metrorail Stations, is an exclusive public and/or

governmental function.

67. Plaintiff, MILLER, has fulfilled all conditions precedent to the institution of

this action and/or such conditions have been waived.


15

68. Plaintiff, MILLER, has retained the Law Offices of Michael A Pancier, P.A. to

represent him in this litigation and has agreed to pay the firm a reasonable fee for its

services.

COUNT I

NEGLIGENCE AGAINST DEFENDANT, 50 STATE

69. Plaintiff, CARLOS MILLER, reaffirms and realleges each and every allegation

as contained in numbered Paragraphs 1 through 68 as though fully set forth herein.

70. At all times material hereto, Plaintiff, MILLER, was a legal business invitee at

the Douglas Road and Government Center Metrorail Station.

71. At all times material hereto, 50 STATE owed Plaintiff a duty to:

a. Exercise reasonable care for the safety and protection of persons and more particularly herein the Plaintiff, MILLER, at said time.

b. Maintain its premises in a reasonably safe condition;

c. Protect patrons, like Plaintiff, from foreseeable harm;

d. Protect patrons, like Plaintiff, from reasonably foreseeable risks;

72. Defendant, 50 STATE, breached the duties to the Plaintiff in one or more of

the following ways:

a. Allowed dangerous and/or violent individuals to attack Plaintiff on

the premises of the Defendant; and/or

b. Allowed the dangerous and/or violent individual(s) that attacked

Plaintiff to remain on the premises of the Defendant; and/or

c. Failed to take appropriate action to remove the dangerous and/or

violent individual(s) that attacked Plaintiff from the premises of

the Defendant, despite that Defendant knew or should have known


16

that this/these individual(s) posed a substantial risk of danger to

Plaintiff; and/or

d. Failed to exercise reasonable care for the safety of Plaintiff while

on the premises of the Defendant; and/or

e. Failed to maintain the premises of the Defendant in a reasonably

safe condition; and/or

f. Negligently acted or failed to act in other presently undetermined

ways.

73. As a direct and proximate result of the negligence of Defendant, 50 STATE,

Plaintiff, MILLER, has suffered injuries and other damages.

WHEREFORE, the Plaintiff, CARLOS MILLER, demands judgment for damages

against the Defendant, 50 STATE, together with costs and further demands trial by jury on

all issues so triable as of right.

COUNT II

NEGLIGENT HIRING, RETENTION, SUPERVISION AND/OR TRAINING AGAINST DEFENDANT, 50 STATE

Plaintiff, CARLOS MILLER, repeats the allegations contained in Paragraphs 1

through 68 as though fully set forth herein.

74. At all times material hereto, Plaintiff, MILLER, was a legal business invitee at

the Douglas Road and Government Center Metrorail Station.

75. At all times material hereto, 50 STATE owed Plaintiff a duty to properly train

supervise, oversee and/or manage its security officers to ensure that they:

a. adequately, reasonably and responsibly performed their duties so as to

not harm or abuse the public, including the commissions of assault,


17

battery, conversion, and the application of excessive force and resulting

damage flowing from excessive force;

b. adequately, reasonably and responsibly performed their duties so as to

not deprive patrons on public property, such as Plaintiff, MILLER, of their

state and/or federal protected rights such as those protected under the

First Amendment of the federal Constitution; and

c. properly train, instruct, oversee and/or manage its security officers to

ensure that they adequately, reasonably and responsibly performed their

duties not to expose public to harm or abuse when confronting people,

such as photographers and photojournalists, who were lawfully

exercising their constitutionally protected rights on public property.

76. The Defendant, 50 STATE, breached the duties to the Plaintiff in one or more

of the following ways:

a. Hired agents, apparent agents, servants, employees, security

personnel without conducting a proper and appropriate background

search/investigation that, if conducted, would have placed Defendant

on notice that these agents, apparent agents, servants, employees,

security personnel were ill-‐qualified for employment as security

personnel at the Metrorail station(s);

b. Retained agents, apparent agents, servants, employees, security

personnel that were ill-‐qualified for said employment and duties;

c. Failed to adequately supervise its agents, apparent agents, servants,

employees, security personnel to ensure that the individuals were


18

acting professionally, responsibly, and otherwise appropriately in

performing security duties including, without limitation, dispute

resolution; and

d. Failed to exercise reasonable care in the evaluation, employment,

training, supervision and retention of its security guards, who

committed acts of assault, battery, conversion, and the application of

excessive force toward Plaintiff, MILLER, and resulting damage

flowing from excessive force.

77. As a direct and proximate result of the negligent hiring and/or retention,

and/or supervision and/or training, by the Defendant, 50 STATE, Defendant’s security

guards improperly, negligently, wrongfully, recklessly and intentionally used excessive

force and/or incorrectly applied force against Plaintiff, MILLER, and his property resulting

in a deprivation of his civil rights, injuries and other damages to Plaintiff, MILLER.




COUNT III

FALSE IMPRISONMENT AGAINST DEFENDANT, 50 STATE



78. At all times relevant herein the actions of Defendant on January 20, 2013

were done with the intention of confining Miller against his will within the fixed boundary

of the Government Center Metrorail Station.


19

79. At all times material hereto, the actions of Defendant directly resulted in the

confinement of Plaintiff, Miller.

80. Defendant’s agents imposed by force and threats an unlawful restraint upon

Plaintiff’s freedom of movement, to wit by pouncing on him, choking him, handcuffing his

hands behind his back, and detaining him for an extended period of time without lawful

justification.

81. As a direct and proximate result of the conduct of the Defendant, Plaintiff,

Miller, has suffered harm and damages.




COUNT IV

ASSAULT AND BATTERY AGAINST DEFENDANT -‐ 50 STATE



82. At all times material hereto, the intentional actions of the Defendant’s

security guards at the Douglas Road and Government Center facilities created an

apprehension of immediate physical harm.

83. Plaintiff Miller and any reasonable person would also become apprehensive

in the face of Defendant’s threatening conduct.

84. Additionally, without the consent of Miller, Defendant’s agents, who were

acting in the interests of the Defendant, under color of state law, while armed with deadly


20

force and other tools normally reserved for law enforcement, intentionally, harmfully, and

offensively touched Plaintiff by hitting him, grabbing him, tackling him, choking him, and

handcuffing him.

85. Said battery was intentionally committed by said defendant, and was willful,

wanton, malicious, oppressive and shocking to the conscience thereby justifying the

awarding of exemplary and punitive damages against Defendant.

86. As a direct and proximate result of the conduct of the Defendant, Plaintiff,

Miller, has suffered harm and damages.




COUNT V

VIOLATION OF 42 U.S.C. § 1983 VIOLATION OF 1ST, 4TH, AND 14TH AMENDMENT RIGHTS

AGAINST DEFENDANT, 50 STATE

87. Plaintiff, CARLOS MILLER, repeats the allegations contained in Paragraphs 1


88. At all times material hereto, the Defendant through its Rule 1.310(b)(6)

Representative has acknowledged that Plaintiff Miller had the right to be on Metrorail

Public Property, that he and other members of the public have a Constitutional Right to

videotape and photograph within the public areas of the Metrorail Stations for non

commercial purposes, that the guards have no right to deny entry to a Metrorail Station to a

paid ticket holder; that the guards do not have the right to confiscate the personal property


21

of patrons; and that the guards are not allowed to place their hands on patrons unless to

prevent a crime or to defend themselves.

89. Despite being aware of federally protected rights afforded members of the

public like Plaintiff, Miller, Defendant has repeatedly engaged in a willful and deliberate

disregard and indifference to the federally protected rights of the public, including Plaintiff,

MILLER.

90. Notwithstanding the “official” line espoused by Defendant, it is no secret

that the Defendant has a history of harassing and suppressing the free speech rights of the

public by the use of force and intimidation and blatant misrepresentations that they are not

allowed to take photographs or video on publically accessible areas of the Metrorail. An

example of some incidents where the free speech rights of patrons were violated are set

forth in the sample of incidents reports attached hereto as Exhibit “A” which were

produced pursuant to a public records request. Moreover, even after Plaintiff, Miller, filed

this action and notwithstanding the attention this matter has brought Defendant via blogs

and social media, Defendant continues to turn a blind eye to the Constitutional Rights of

the public allowing even more egregious conduct to be perpetrated against Plaintiff, Miller.

91. The aforesaid action of the Defendant of assaulting and battering Miller,

taking and destroying his personal property, beating him, choking him, handcuffing him,

and falsely imprisoning him was willful, wanton, malicious, oppressive and shocking to the

conscience. Furthermore, Defendants have retaliated against Plaintiff, Miller, for exercising

his First Amendment rights by threatening him with arrest should he use the Metrorail or

should he enter Metrorail Property.


22

92. At the time of these constitutional violations, Defendant had in place and

had ratified policies, procedures, customs and practices which permitted and encouraged

security officers to unjustifiably, unreasonably and in violation of First, Fourth, and

Fourteenth Amendment rights use excessive force against lawful citizens and members of

the media who had a first amendment right to take personal photographs and video and/or

take photographs or videos on matters of public concern.

93. Because of the establishment of policies and practices described above as

well as their failure to adequately train their subordinates and the deliberate indifference

to the constitutional rights of Metrorail’s patrons, Defendant, 50 State, is liable for the

constitutional violations committed by its security officers and for the injuries sustained by

Plaintiff, Miller, described herein.

94. Additionally, since Plaintiff reported the aforementioned incidents on his

blog and his Facebook page, Plaintiff has been receiving violence threats from individuals

who purport to be employees of the Defendant.

95. At no time was Plaintiff, Miller, violating any law rules or regulation which

justified the beat-‐down he received at the hands of Defendant’s security officers. Moreover,

the Defendant’s officers while acting under color of state law also had no legal cause or

excuse to seize his person.

96. At the aforementioned dates and locations, Defendants had ample and

reasonably sufficient time and opportunity to so intervene and prevent the beatings and

false imprisonment and deprivation of Plaintiff’s rights, and was compelled to do so as

contract security officers for Miami-‐Dade County Transit under the laws of the State of

Florida and under the Constitution of the Untied States of America.


23

97. At the aforementioned dates and location, in deliberate indifference to the

life, health and Constitutional rights of Plaintiff, said defendants intentionally and with

deliberate indifference to the civil rights of Plaintiff, Miller, refrained from so intervening

and permitted said conduct to continue.

98. As a direct and proximate result of Defendant’s actions, Plaintiff has suffered

damages and will continue to suffer damages.

99. The aforementioned acts by said defendants were willful, wanton, malicious,

oppressive, and in deliberate indifference to the rights, health and safety of Plaintiff,

thereby justifying the awarding of exemplary and punitive damages against Defendant.

100. Plaintiff is entitled to reasonable attorneys fees in this matter pursuant to 42

U.S.C. § 1988.

WHEREFORE, the Plaintiff, CARLOS MILLER, demands judgment for compensatory

and punitive damages against the Defendant, 50 STATE, and further requests that the

Court enter a declaration that Defendant, 50 STATE, has violated the First, Fourth, and

Fourteen Amendments to the United States Constitution, and that the Court enter a

permanent injunction prohibiting Defendant from continuing the pattern, practice, custom

and policy of depriving Plaintiff and other members of the public of their Constitutional

Rights when aboard Metrorail or on the public areas of Metrorail property; and award

Plaintiff attorneys fees and costs pursuant to 42 U.S.C. § 1988, and such other relief that the

Court deems just and proper.

Dated February 14, 2013.


24

Respectfully submitted, Law Offices of Michael A. Pancier, P.A., Attorneys for Plaintiff 9000 Sheridan Street, Suite 96 Pembroke Pines, FL 33024 TEL: (954) 862-‐2217 FAX: (954) 862-‐2287

/s/ Michael A. Pancier, Esq. Michael A. Pancier, Esq. Fla. Bar No. 958484


miller v 50 state - federal civil rights complaint

Documents

times material

times material

exercise reasonable

federally

coconut grove

electronic

dade police

legal business