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SOVEREIGN IMMUNITY AND THE JOE‟S STONE CRAB SHOOTING BY DAVID ARTHUR WALTERS
Miami Beach City Attorney Jose Smith has stated that he is using the notorious 1985 Florida Supreme Court landmark 4-3 decision in Trianon Park Condominium v. City of Hialeah, that a municipality never has liability for negligent building inspections, to defend the City of Miami against police shooting cases. “The City‟s sovereign immunity in the Building Department context is so well established,” he claimed, “that nobody has ever had the audacity to challenge it.” In other words, relying on the analogy between police officers and building inspectors in their exercise of the government‟s police power to ensure the safety o f the public, he believes the city, as a so-called sovereign government, should be immune from liability for the negligence of its police officers. We beg to differ not only from his opinion in respect to negligent police officers but from the court‟s opinion in negligent building inspection cases. Key here is negligence: where there is negligence, there must be liability. All officials should exercise reasonable care in the undertaking of their duties. The failure to hold officials responsible for negligence, which is
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Even worse that judicial or common law legislation might cloak a municipality with immunity for its negligence in shooting and other cases. amounting to $60. and inspectors are well aware of the court‟s holding in Trianon. after he hijacked a Miami Dade school bus at Blue Lakes Elementary school with 15 people aboard.000 according to information presented at an inquest. “The lack of a common law duty for exercising a discretionary police power function must. for example. granting sovereign immunity to the county for a nationally televised shooting incident outside Joe‟s Stone Crab Restaurant in South Miami Beach. in Robles v. and he went to church every day. Catalino (Nick) Sang was shot to death by police officers on Nov. building department directors. Nevertheless. so that police officials. Metropolitan Dade County. 2. the father of two teenage daughters. however. Joe‟s manager at the time. where he had worked as a waiter for seven years until he resigned the previous day. He had apparently become upset over tax liens. Sang. stating that he could no longer take the pressure. told the Los Angeles Times that he had no idea what Sang. in 1984. He was married. owned and ran two Chinese takeout restaurants with his brothers. A restaurant co-worker said Sang had "started freaking out" recently. upheld in 2001 on appeal to the district court of appeal. and drove it on a harrowing. both honor students. who had emigrated from the Dominican Republic to the U. will not worry about legal liability for the training and supervision of police officers. in determining negligence. was up to. can only cultivate carelessness and tyranny. who kept to himself. There is a big difference between the duties of a building inspector with pen drawn to fill out an inspection report and a police officer looking down the barrel of a gun.” Robert Moorehead.MIAMI MIRROR – TRUE REFLECTIONS some cases is so gross that we wonder why it is not construed as intentional harm.” Smith‟s reliance on police power analogies is hardly novel. although the Trianon court bestowed sovereign impunity for neglect on building inspectors after it arrived at the absurd conclusion that the duty the public is not a duty to anyone in particular. In these latter circumstances there always has been a common law duty of care and the waiver of sovereign immunity now allows actions against all governmental entities for violations of those duties of care. A fellow waiter said Sang was passing around a Page 2 of 7 . and those officers will not worry about legal liability for collateral damage due to their negligence in using deadly force. Indeed. a careful distinction should be made between the performance of activities essential to the performance of duties by police officers and building officials. the it stated that. 90minute ride to Joe‟s Stone Crab Restaurant on South Beach. and was moonlighting at Joes. 1995. take the summary judgment of a Florida circuit court. For example. and that "he threatened us.S. Indeed. be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law. operations managers. including 13 developmentally impaired children aged from 5 to 12 years old.
Omit the negative propositions. infamy. is to have a positive attitude: “One more trait of true success. and manufacture of public opinion. therefore can succeed in that good provided it is worked for: “Men are made each with some triumphant superiority. By all means. Don't waste yourself in rejection.‟ „I thought it was strange. these are steps to suicide. “but they have got something else. and waits willingly when the occasion of making it appreciated shall arrive.MIAMI MIRROR – TRUE REFLECTIONS quote from Ralph Waldo Emerson‟s essay. then.” Further.” People think they have got success. The good mind chooses what is positive.” but as the LA Times reported. The AP report claims that someone said „Success‟ was his “favorite poem. embraces the affirmative. and excellence is lost sight of in the hunger for sudden performance and praise.‟ Tony said. and will wait months and years for a case to occur that can be tortured into a precedent. “Each man has an aptitude born with him to do easily some feat impossible to any other. a crime which calls for another crime. Emerson quotes the sovereign immunity maxim of lawyers that “a crown once worn cleareth all wearers of defects thereof.” Therefore “Don't bewail and bemoan. Works in this world are bound to fall short of salvation. and the harming of mankind.” We cannot be certain that Sang ever laid eyes on Emerson‟s transcendental effusions on success. ” He believed that Americans were tainted by insanity. knowing well that it will not loiter.” Interestingly. he would have learned that the sine qua non of obtaining genuine success. „Success.” If Sang had read the Emerson essay. grasping and egotism. which for idealists with finer sensibilities like Emerson is found in wisdom rather than in manifest objects.‟” Page 3 of 7 . Nerve us with incessant affirmatives. but chant the beauty of the good. and another devil behind that. „He seemed a little stressed the last couple of days.‟ but that he did not think much of it. We countenance each other in this life of show. Do your work. wherefore it is said that faith and not works save. be patient: “I pronounce that young man happy who is content with having acquired the skill which he had aimed at. puffing.” Perhaps one reason for us to be patient with our high court in Florida is that courts and lawyers tend to follow suit instead of taking the initiative: “The gravest and learnedest courts in this country shudder to face a new question. not a poem. but I did not think anything of it. advertisement. Emerson‟s influential essay under that title declares that everyone is good for something.” Work for transcendentalists such as Emerson is metaphysical. „Success‟ is an essay. what is advancing. but maybe it was a “foreshadowing” of what was to come. “as our bankruptcies and our reckless politics may show. nor bark against the bad. We are great by exclusion. until it is discovered by an equal mind or heart. Yet a nother AP report states that the subject matter was a poem: “A Joe‟s waiter who identified himself as Tony said Sang had been edgy lately and had given him and others a copy of the Emerson poem: „The profoundest thought or passion sleeps as in a mine. and thus throw on a bolder party the onus of an initiative.
but another report has him changing his mind about the destination. the deed that sealed his fate was published far and wide. to be taken to an IRS office. as a passage from one of the poets. Osgood and Company. The profoundest thought or passion sleeps as in a mine. first of all. He walked off job around 9:30 that Wednesday night. I'll kill someone if I can't talk to the IRS. but a transcript of contemporary manners and customs and the sign of a particular state of intellect. where he apparently found cause to rant hysterically. Press accounts as to the length of the ordeal varied. a good head cannot read amiss: in every book he finds passages which seem confidences or asides hidden from all else and unmistakably meant for his ear. Emerson was right when he said. remembers his friends by their favorite poetry or other reading. was greatly disappointed after fourteen years the U.MIAMI MIRROR – TRUE REFLECTIONS That prosaic line is not poetic. Sang made several threats in transit. finally losing patience the day he quit his taxing job as waiter. As the journals say. He asked his daughter to pray for him the next day. We read the quotation with his eyes. too. saying he wanted to have lunch.‟ The profit of books is according to the sensibility of the reader. Boston. he pushed his way onto a school bus.” The reader may read whatever he likes into Sang‟s curious fascination with America‟s quintessent ial idealist preacher.” We conjecture that Sang. However that may be. „the italics are ours. ultimately to Joe‟s Stone Crab. in the chapter „Quotation and Originality.S. and find a new and fervent sense. "So help me. possibly strapped to his body or in a bag. referred to a bomb and demanded. The bus came to a stop four times at Sang‟s request as Page 4 of 7 . where to this very day a porter named Curtis claims that the Director of the Internal Revenue Service is the most powerful person in the world.. “We respect ourselves more if we have succeeded. according to one report. and Burke. He missed the exit to the IRS building.' even. have their best fame within it. including. is not found in Emerson‟s essay on success but appears on page 172 of Letters and Social Aims published by James R.‟ as follows: “We are as much informed of a writer's genius by what he selects as by what he originates. As Emerson said in that chapter. Now distraught over the tax liens. from 60 to 95 minutes. perhaps keeping a journal. borrows new interest from the rendering. had great expectations for his role in the American Way. for he had his hand under his coat when he pushed his way onto the bus. He then went to church. and Milton's prose. The passages of Shakespeare that we most prize were never quoted until within this century. the isolated caprice of an excited brain. until an equal mind and heart finds and publishes it . the destination changed several times. Police did not doubt that Sang was armed. in History of English Literature." A caravan of 50 police cars accompanied the bus over the causeway to Miami Beach as the dramatic episode unfolded on television via news helicopters. at 42 years of age. ordering the driver to go to Joe‟s. Every one. but did not seem disturbed. At least they thought he had some kind of explosive device.” The reader should keep in mind Hippolyte Taine‟s observation. and said he had a bomb. but we have no response from his family to confirm that at this writing. “Tis the good reader that makes the good book. well recited. in 1876. ” We suspect that Sang had literary aspirations himself. that “a literary work is not a mere play of the imagination. In any event.
collapsed in a heap after recounting the terror she felt. It was bloodied. just a dead man afterwards. called the police action "brutal and excessive. His body was dragged into an alley and left there. Video or the shooting show Sang's bloody body was dragged from the bus and dropped on the sidewalk. took a single shot through the window of the bus with an AR15 rifle. apparently dropping him on the spot.'' he said. Sang. readied himself for Sang‟s arrival. some breaking out windows to distract Sang and get a clear view of him while Caroddo and four others rushed the bus. we have to make what is called a hasty assault. Peter Caroddo of Metro-Dade Police Department's Special Response Team said that said the first objective in all hostage situations is to get the hostages out of danger safely. Yet another officer reportedly said that Sang was shot to death at the door of the bus because he was reaching for the bag he claimed contained a bomb. Sang's threats were real or perceived. but he got up again. The bus driver. His head looked up and to the side and then dropped to the ground. Derringer fired and Sang went down." and made some sort of motion that made Derringer." "What a bad thing they've done to this man. He said Sang was "acting quite erratic inside the bus. After police searched him for the bomb he said he had. They shot him and then they dragged him off the bus. hitting him in the shoulder. The police were cleared after an eight-hour inquest. Sang was left alone but still alive. There was no bomb there. "I could see his arm. Three or four officers stormed the bus. and. Dade County Judge Steven Leifman said Sang offered police no alternative since he led them to believe a worst-case scenario was unfolding." “Purificacion Sang. Sgt. fearing that Sang was going to shoot him because Sang looked him directly in the eye. ``You could have avoided all this bloodshed.'' Page 5 of 7 . "No one In the family knew about It until after it happened. sobbed loudly as her brother -in-law Jose Sang stood in front of police and charged. ``Whether Mr. think he was going to hurt someone.MIAMI MIRROR – TRUE REFLECTIONS it traversed 15 miles. The so-called bomb turned out to be a child‟s portable oxygen tank. He crouched down and used hostages as a shield each time." said Jose T." Another police officer said he saw Sang move a hand inside his jacket so he fired three fatal 9mm bullets into him. children with autism and learning disabilities. Alicia Chapman. one of Catalino Sang's 10 brothers and sisters. “This action was not necessary. "These men were armed and wearing bulletproof vests. a police sharpshooter. by his actions he threatened the lives the most innocent of victims. To keep him now from killing the hostages. Sang's friend for 12 years. Two children. an 11-year veteran of Team." he said. Joseph Derringer. a mother and an adult aide were released at one stop. setting himself up 30 feet away from where the bus would come to a halt. Sgt. the hijacker's widow." Manuel Rivera. Caroddo said. Why didn't they contact us? They had plenty of time.
french fries.” Page 6 of 7 . and even if Sang had a gun. taking a shot through the window: “T his shooting was reckless and inconsistent with customary police practices. that the wound had impaired his vision in one eye but that he could see with the aid of glasses.MIAMI MIRROR – TRUE REFLECTIONS The driver and kids had scrambled out the back exit of the bus as Sang was dragged away." he said.”I don't want to go on the bus because someone will kill me. and that the court should not second-guess the sharpshooter who was actually there and had to make the call. The Supreme Court granted jurisdiction. an experienced expert in police procedures. citing the Trianon except ion to sovereign immunity. so that was no reason for the sharpshooter to fear for his life and take the shot. The county‟s motion for summary judgment against the plaintiff was granted on the basis that the county enjoyed sovereign immunity against such suits. but he had looked at plenty of officers along the way while accompanied by a 50-car caravan of cops. That child was Marlon Robles. Sure. He was yelling. He said shut up to the driver. allegedly blinding him in one eye. and ice cream in the restaurant. said the police had done everything right except for one thing. SWAT units and crisis negotiation. and they showed little signs of distress thereafter. Some children were autistic while others had speech impediments. There is tort liability for this breach of the duty of due care in the handling of firearms. then abruptly reversed itself in 2003 and dismissed the case.” was not a “discretionary” public policy planning level decision entitled t o sovereign immunity. the risk to the officer would have been acceptable." One child was treated for cuts caused by flying glass shattered by the sniper‟s bullet. a phone had been tossed into the bus at Sang‟s request during the long ordeal. three hostages were released. and that the court should review the case anew as if the question had not been previously decided. that “Officer Derringer‟s decision to shoot at Mr. The children were treated to sodas. did say he was afraid the "bad man" might escape and come back to hurt him on a school bus. serious emergencies thrust upon police officers by lawbreakers or external events requires them to choose between two different evils. During the course of the case there was some d iscussion of whether or not a police officer‟s decision to use deadly force is a matter of discretion therefore essential to his ability to protect the public including himself: Robles‟ counsel argued. and telephone negotiations were in progress. and the choice of risk of doing harm to someone no matter what decision they make involves a discretionary act of decision making entitling them to sovereign immunity.” The defense offered that the expert opinion was subjective. a second-grader on board. Sang might have looked the sharpshooter in the eye at Joe‟s. Counsel for Robles argued that no violence had occurred. The district court of appeal affirmed that decision. holding that even if an allegation of negligence were true. Robles appealed to the Florida Supreme Court. Michael Cosgrove. special response teams. His decision to shoot was an „operational‟ implementation of County policy. a secondary decision recklessly made. stating that the grant of sovereign immunity was erroneous. Brian Morales. whose parents brought suit against the county because the child sustained an injury. Sang as the bus passed by. The defense would claim that Robles was not blinded. "The man was mad. The autistic children‟s lack of understanding of what was going on may have kept them calm on the bus. No gun was found.
In any case. when justice is equitable.MIAMI MIRROR – TRUE REFLECTIONS Almost every task no matter how „operational‟ requires some discretion. We tend to side with retired firefighter Jim Llewellyn. We quickly applied the EKG and looked for other signs of life. negligence should trump sovereign immunity. We listened to the radio on the way in through the scene and it was very chaotic and charged. ” ## Page 7 of 7 . He was dead at that time. They used that argument when I initiated fines against them for non-compliance with code violations. perhaps even the city attorney‟s ritual operations should subject its attorneys and the city to liability for negligence. I do not know a lot about police procedure but anyone who takes the kind of measures that Sang did has to be ready to suffer the consequences. whom we contacted at home for comment: “I agree with the general premise that cities should not have some blanket immunity against negligence. As it so happens I was on the first fire crew to get to Sang. And think about how many massacres of kids have taken place since then. If it did not and something happened where the police didn't take the precaution when they had the chance and kids were then harmed imagine the uproar then. The tyrant should have no excuse that he did not intend any harm. This guy had them. In this particular case we believe a jury would find no negligence. This was a case of damned if you do or don't. building inspectors. After all. Now if the operational implementation of legislative policy is so non-discretional and indiscrete or injudicious that the operators and/or their employers should be liable for suits for negligence. History teaches us that too much discretion in the hands of neglectful authority can turn discretion into unbearable tyranny. There was no real way to determine if he was armed or his intent. the Miami Beach City Attorney should not expect blanket sovereign immunity from negligence liability for police officers. In the long run. The protection of so many kids has to take priority. this was a busload of kids and it was not a mistake. In fact we were advised to stay out of the hot zone because they weren't sure about possible explosives et cetera but we swooped in anyway to help get the kids off and away from the bus. I turned him over to asses for signs of life while trying to use some caution because it appeared that he had some kind of suspicious „device‟ on the front of his clothes. In the Joes case I happen to fall on the side on law enforcement. one of the responders on the scene. including himself. Better to be damned for protecting all of those innocent kids. or any other public official.
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