SHERIFF SHOAR CAUGHT WIRETAPPING PRIVILEGED CONVERSATIONS

Under FBI investigation, St. Johns County Sheriff DAVID BERNARD SHOAR reminds me of "The Little Boy Who Cried Wolf."

SUED FOR ILLEGAL SURVEILLANCE, SHERIFF SHOAR ONCE accused plaintiff attorney Anna Marie Gennusa of filing the "most frivolous" lawsuit ever. He caused a Bar complaint to be filed against her. His pal, ex-Judge ROBERT KEITH MATHIS, used the same words, as a then-anonymous hate poster on the St. Augustine Record website.
Four federal judges proved them wrong -- the District Court Judge and a three-judge panel of the Eleventh Circuit.

First, what I blogged on April 8, 2014, then the trial and appeals decisions:

Tuesday, April 08, 2014

Sheriff's Office Loses Appeal -- Called Civil Rights Case By Attorney Gennusa "Most Frivolous" He'd Ever Seen

The St. Johns County Sheriff's office violated Fourth Amendment rights of an attorney and her client by listening in to their private conversations in an interview room and stealing a document from the attorney's hands.
So ruled the United States Court of Appeals for the Eleventh Circuit, in a decision posted earlier today.
At issue were our Federal Wiretap Act and our Fourth Amendment.
The case was brught by attorney Anne Marie Gennusa and her client, Joel Sutrdivant, who were both represented by Jacksonville attorney William Sheppard, Brian DeMaggio, Matthew Kachergus and Elizabeth Louis White.
When an attorney and a client are speaking in an interview room and the client is not charged with the crime, they have a reasonable expectation of privacy: listening in is a violation of the Fourth Amendment, a civil rights violation. When an attorney is holding a statement and a deputy grabs it out of her hand, that's a civil rights violation, too.
So ruled United States District Court Judge Timothy Corrigan in 2012.
So ruled the United States Court of Appeals today in Atlanta.
The only surprising thing about today's ruling is that our St. Johns County Sheriff, DAVID BERNARD SHOAR and lawyers JOHN JOLLY and MATTHEW CLINE bothered to appeal on behalf of THOMAS MARMO and BRIAN CANOVA.
The trial court awarded no money damages, only injunctive relief and attorney fees.
This appeal was a waste of the public fisc.
Sheriff SHOAR is ethically impaired.
Sheriff SHOAR had termed this the "most frivolous lawsuit" he'd "ever seen."
Sheriff SHOAR had stated, "It is cases like these that cause members of the public to be very critica of the effetivness of our civil justice system in America."
No Sheriff SHOAR, it is crooked cranky Sheriffs like you.
And all your works and pomps.
And all your camp followers.
And all your scared deputies, who do evil to keep their jobs.
It is also the current and former members of your Department, who long posted hate speech on the St. Augustine Record, its Talk of the Town website, and on MICHAEL GOLD's www.plazabum.com and www.shamefulpeople.com.
What a lugubrious goober. SHOAR knows not that he knows not that he knows not, and he's been elected thrice, twice without opposition, because our somnolent, somnambulistic St. Johns County Democratic Party, not unlike our St. Johns County Sheriff's Office, is reminiscent of Jimmy Breslin's "The Gang That Couldn't Shoot Straight."
This same Sheriff refused to recuse himself on November 2-3, 2010, when Deputy Jeremy Banks' girlfriend, Michelle O'Connell, was found shot to death with his service pistol. Supervising an investigation that was a stench in the nostrils of the Nation, Sheriff DAVID BERNARD SHOAR pronounced it a "suicide."
SHOAR is a criminal, and his credibility is in shreds.
The trial court decision was written by U.S. District Judge Timothy Corrigan, appointed by Presideent G.W. Bush in 2002.
The appeals decision was written by (CORRECTED) Judge Adalberto Jordan, a former federal prosecutor, former U.S. District Judge in Miami and was appointed by President Obama in 2012; he was born in Cuba and clerked for Justice Sandra Day O'Connor.
The decision was joined in by Senior Judge Joel F. Dubina of Alabama, who was appointed a District Judge by President Reagan and an Appeals Judge by President G.H.W.Bush and by Senior Judge Emmett Ripley Cox, appointed by President Reagan and a native of Cottonwood, Alabama.
A federal grand jury needs to investigate Shoar's civil rights violations.
Now.
The whole world is watching.
CNN and NBC News Dateline are next.

UNITED STATES DISTRICT JUDGE TIMOTHY CORGIGAN:
2012 TRIAL COURT DECISION:
GENNUSA v. SHOAR

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Case No. 3:09-cv-1208-J-32MCR.
879 F.Supp.2d 1337 (2012)

Anne Marie GENNUSA, et al., Plaintiffs, v. David SHOAR, et al., Defendants.

United States District Court, M.D. Florida, Jacksonville Division.

July 17, 2012.

Attorney(s) appearing for the Case

Bryan E. DeMaggio, Elizabeth Louise White, Matthew R. Kachergus, William J. Sheppard, Sheppard, White, Thomas & Kachergus, PA, Jacksonville, FL, for Plaintiffs.

John W. Jolly, Jr., Jolly & Peterson, PA, Tallahassee, FL, for Defendants.

ORDER

TIMOTHY J. CORRIGAN, District Judge.

Anne Marie Gennusa, a lawyer, and Joel Studivant, her client, allege that members of the St. Johns County Sheriff's Office
[879 F.Supp.2d 1342]
violated their Fourth Amendment rights and the Federal Wiretapping Act by recording their attorney-client conversations in an interview room at the Sheriff's Office and by forcefully seizing Studivant's written statement. The parties filed cross motions for summary judgment (Docs. 27, 33), and the Court held hearings on these motions on April 1, 2011 and July 29, 2011, the transcripts of which are incorporated by reference (Docs. 35, 39). At the July 29, 2011 hearing, the Court identified several issues with the manner in which the case had been pled. In particular, the Court highlighted that, although no material facts were in dispute, the parties had failed to meet on a number of critical issues, thus leaving the Court unable to grant summary judgment for either party. In light of the Court's comments, the parties agreed that plaintiffs should file a second amended complaint and that the parties should then file new cross-motions. (Docs. 38, 39.)

This case is now before the Court on the parties' cross-motions for summary judgment relating to the Second Amended Complaint. (Docs. 44, 52.) Although the Court allowed the parties to replead so that they could better meet on the substantive issues, many of the parties' arguments have again gone unanswered. Defendants have been particularly unhelpful since, rather than responding to plaintiffs' arguments directly, "Defendants stand on [their] original Memorandum of Law [in support of their motion for summary judgment] as their argument in opposition to Plaintiff's pursuit of summary judgment." (Doc. 54 at 1.) Given the continued lack of engagement between the parties, the Court has deemed many of the parties' arguments to be conceded.

I. BACKGROUND

This case arises from an interview of Studivant relating to his alleged violation of a domestic violence injunction. The interview was conducted by defendant Thomas Marmo, a St. Johns County detective, in an interview room located in the St. Johns County Sheriff's Office. Gennusa attended as Studivant's attorney. Although the interview was recorded and actively monitored by employees of the Sheriff's Office, plaintiffs were given no indication of this fact.1

Due to the recording, the events that transpired during the interview are undisputed.2 When the interview began, Studivant initially agreed to prepare an affidavit relating to the investigation. While Studivant was writing his statement, Marmo left the interview room and closed the door. At this time, when no officers were present, Studivant and Gennusa discussed matters related to the investigation. Gennusa then left the interview room and met with Marmo in his office. When Gennusa returned to the interview room, she informed Studivant that Marmo intended to arrest him. After a discussion with Gennusa, Studivant decided that he no longer wished to give Marmo his written statement.

[879 F.Supp.2d 1343]
Marmo returned to the interview room, and, after a heated discussion, Studivant and Gennusa refused to tender the statement. Marmo then exited the interview room and discussed the matter with his supervisor, defendant Brian Canova, a sergeant in the St. Johns County Sheriffs Office. During their discussion, the officers actively monitored plaintiffs in the interview room and watched Gennusa place the statement on a table. Canova instructed Marmo to return to the interview room and take the statement. (Doc. 28-1 at 6-8.) As Marmo entered the room, he forcibly grabbed the statement from underneath Gennusa's hand. (Doc. 1-1.)

Marmo proceeded to arrest Studivant for violation of the domestic violence injunction and attached Studivant's statement to his arrest report. (Doc. 28-1 at 37-38.) A criminal prosecution was ultimately brought against Studivant, but the charges were dismissed after he entered into a deferred prosecution agreement. (Doc. 26-5 at 8-9.)

Plaintiffs filed this action against Marmo and Canova in their individual capacities and against David Shoar in his official capacity as Sheriff of St. Johns County. Plaintiffs allege defendants violated their Fourth Amendment rights and the Federal Wiretapping Act by seizing Studivant's statement and recording their attorney-client conversations. Plaintiffs seek money damages and an order enjoining the St. Johns County Sheriff's Office from secretly recording attorney-client conversations in the Sheriff's Office. (Doc. 41.)

II. STANDARD OF REVIEW

Summary judgment is proper where "there is no genuine issue as to any material fact" and "the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). "The burden of demonstrating the satisfaction of this standard lies with the movant, who must present `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' that establish the absence of any genuine material, factual dispute." Branche v. Airtran Airways, 342 F.3d 1248, 1252-53 (11th Cir.2003) (quoting Fed.R.Civ.P. 56(c)). An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining whether summary judgment is appropriate, a court must draw inferences from the evidence in the light most favorable to the nonmovant and resolve all reasonable doubts in that party's favor. Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir.2005).

III. DISCUSSION

A. Plaintiffs' Claims Against Marmo and Canova (Counts I, II, III, V)

Counts I, II, III, and V of the Second Amended Complaint assert claims against Marmo and Canova in their individual capacities. Defendants contend that they are entitled to qualified immunity on each count. (Doc. 44.)

"Qualified immunity offers complete protection for government officials sued in their individual capacities." Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002) (quotation omitted). "To receive qualified immunity, the government official must first prove that he was acting within his discretionary authority." Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.2003).
[879 F.Supp.2d 1344]
Here, the parties do not dispute that Marmo and Canova were acting within their discretionary authority.

"Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiffs to show that qualified immunity is not appropriate." Id. "Courts utilize a two-part framework to evaluate qualified immunity defenses." Grider v. City of Auburn, Ala., 618 F.3d 1240, 1254 (11th Cir.2010). The court first examines "whether the plaintiff's allegations, if true, establish a constitutional violation. If the facts, construed in the light most favorable to the plaintiff, show that a constitutional right has been violated, another inquiry is whether the right violated was `clearly established.'" Id. (internal citations omitted). "In determining whether a constitutional right was clearly established at the time of violation, the relevant, dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 1266 (quotation omitted); see also Long v. Slaton, 508 F.3d 576, 584 (11th Cir.2007) ("Qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.") (quotation omitted).

Whether qualified immunity applies "is a legal issue to be decided by the court." Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir.1996). While "the jury itself decides issues of historical fact that are determinative of the qualified immunity defense, ... the jury does not apply the law relating to qualified immunity to those historical facts it finds; that is the court's duty." Johnson v. Breeden, 280 F.3d 1308, 1318 (11th Cir.2002). Here, because there are no material disputes regarding "the who-what-when-where-why type of historical fact issues" that require a determination by the jury, the Court may rule as a matter of law on the qualified immunity issues. See Cottrell, 85 F.3d at 1488.

1. Seizure of Studivant's Statement (Counts II, III)

In Counts II and III of the Second Amended Complaint, plaintiffs allege that Marmo violated their Fourth Amendment rights by "ripping and snatching Mr. Studivant's statement from Ms. Gennusa's hands with such force as to break Ms. Gennusa's finger nail." (Doc. 41 at 8-10.) Plaintiffs further allege that Canova violated their Fourth Amendment rights by ordering Marmo to retrieve the statement and failing to halt or remedy the constitutional violation. (Id.)

In their cross-motions for summary judgment, the parties raise distinct and essentially uncontested arguments. Defendants contend that Marmo did not use excessive force in taking the statement from Gennusa. According to defendants, Marmo merely applied a "de minimis" level of force that was reasonable in nature and thus did not rise to the level of a constitutional violation. (Doc. 44 at 11-14.)3

Plaintiffs, however, do not respond to defendants' excessive force argument. Instead, plaintiffs contend that, regardless of whether Marmo employed excessive force, the seizure of Studivant's statement was per se unreasonable because it was taken without a warrant. (Doc. 52 at 10-13.) Defendants do not argue that any exceptions
[879 F.Supp.2d 1345]
to the warrant requirement apply or otherwise respond to plaintiffs' argument.

At the July 29, 2011 hearing, the Court stated that the parties were "passing each other in the night" because defendants had not responded to plaintiffs' claim of per se unreasonableness and plaintiffs had not responded to defendants' arguments regarding excessive force. (Doc. 39 at 8-9.) After giving the parties an opportunity to reargue their claims, however, they again chose not to address each other's arguments. The Court thus finds that plaintiffs have correctly conceded that Marmo did not use excessive force and defendants have correctly conceded that Marmo seized Studivant's property without any exception to the warrant requirement.

"The Fourth Amendment proscribes all unreasonable searches and seizures." Horton v. California, 496 U.S. 128, 133 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (quotation omitted). "A `seizure' of property ... occurs when there is some meaningful interference with an individual's possessory interests in that property." Soldal v. Cook Cnty., Ill., 506 U.S. 56, 61, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992) (quotation omitted). "[I]t is a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions." Horton, 496 U.S. at 133 n. 4, 110 S.Ct. 2301 (quotation omitted). "The burden of proving an exception to the warrant requirement rests with the government." United States v. McGough, 412 F.3d 1232, 1237 n. 4 (11th Cir.2005).

Defendants have conceded that the statement, which had been written voluntarily, was Studivant's property.4 Because Marmo's actions interfered with plaintiffs' "possessory interests" in the statement, his actions constituted a "seizure" of property under the Fourth Amendment. Marmo's seizure was unreasonable because he did not obtain a warrant and has not argued that any exception to the warrant requirement applied.5 Moreover, defendants are not entitled to qualified immunity since it would be clear to any reasonable officer that seizing Studivant's personal papers without a warrant or exception to the warrant requirement was unlawful. See e.g., O'Rourke v. Hayes, 378 F.3d 1201, 1208-09 (11th Cir. 2004) (holding that a search conducted
[879 F.Supp.2d 1346]
without a warrant or exigency justifying the search "violated rights that are clearly established under ... general statements of [Fourth Amendment] principle").

Because there are no material disputes of fact, plaintiffs are entitled to summary judgment on their unreasonable seizure claims in Counts II and III.6 Defendants' motion for summary judgment is thus due to be denied as to Counts II and III.

2. Recording of Plaintiffs' Communications (Counts I, V)

Plaintiffs next contend that Marmo and Canova's actions in recording their attorney-client conversations violated the Fourth Amendment and the Federal Wiretapping Act, 18 U.S.C. § 2510, et seq. (Doc. 15 at 12.) "[T]he Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements." Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). "The constitutional question is whether the person invoking its Fourth Amendment protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action." United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir.1993). To prove a violation, a plaintiff therefore must show both that he had a subjective expectation of privacy and that his "subjective expectation of privacy is one that society is willing to recognize as reasonable." Id.

The Federal Wiretapping Act provides a civil cause of action against any person or entity that intercepts, or procures any other person to intercept, any wire, oral, or electronic communication. §§ 2511(1)(a), 2520(a). An "oral communication" is defined under the Act as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." § 2510(2). The Eleventh Circuit has held that courts should apply the Fourth Amendment's reasonable expectation of privacy test to determine whether the "oral communication" requirement under the Act has been met. See McKinnon, 985 F.2d at 527-28 ("Hence, the statutory and constitutional test is whether a reasonable or justifiable expectation of privacy exists").

There is no material dispute of fact regarding plaintiffs' subjective expectations that their conversations were private.
[879 F.Supp.2d 1347]
(Docs. 26-1 at 67-72; 26-5 at 58.).7 However, defendants contend that plaintiffs' claims fail because their expectations of privacy were not reasonable. (Doc. 44 at 7-11.) Defendants further assert that, even if the recording violated plaintiffs' rights, qualified immunity applies because those rights were not clearly established. Plaintiffs assert that, while ordinarily a suspect may not have a reasonable expectation of privacy in a police interrogation room, attorney-client conversations are treated differently. (Doc. 52 at 15-20.)

Confidential attorney-client communications are the foundation of the attorney-client privilege, "the oldest of the privileges for confidential communications known to the common law." Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1414 (11th Cir.1994). "The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client." Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). It "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure." Id. (quoting Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 32 L.Ed. 488 (1888)). Courts have thus held that an expectation of privacy in attorney-client communications is one that society is willing to recognize as reasonable. See, e.g., DeMassa v. Nunez, 770 F.2d 1505, 1506-07 (9th Cir.1985) ("It is axiomatic that the attorney-client privilege confers upon the client an expectation of privacy in his or her confidential communications with the attorney."); In re State Police Litigation, 888 F.Supp. 1235, 1256 (D.Conn.1995) ("[W]here no consent exists, and where conversations consist of privileged communications between clients and their attorneys, an expectation of privacy is reasonable.")

Starting from the premise that an expectation of privacy is reasonable when a lawyer and her client speak alone about privileged matters, the particular facts of this case only reinforce the objective reasonableness of plaintiffs' expectation.8 Because "the Fourth Amendment protects people, not places," Katz, 389 U.S. at 352,
[879 F.Supp.2d 1348]
88 S.Ct. 507, it is not dispositive that plaintiffs' conversation took place in a police interview room. "[I]n the prison setting, attorney-client communications generally are distinguished from other kinds of communications and exempted from routine monitoring." Lonegan v. Hasty, 436 F.Supp.2d 419, 432 (E.D.N.Y.2006); see also, e.g., Evans v. Inmate Calling Solutions, No. 3:08-cv-00353-GMN-VPC, 2011 WL 7470336, at *15 (D.Nev. July 29, 2011) ("[I]t is objectively reasonable for confidential communication between an inmate and his attorney to remain private."); Sowards v. City of Milpitas, No. C-03-3036-JF, 2005 WL 1566540, at *3 (N.D.Cal. July 5, 2005) (holding that the police violated the Fourth Amendment by recording an attorney-client conversation in an interrogation room).9 But see Deegan v. Rudman, No. 3:10-cv-00016, 2011 WL 251226, at *4-5 (W.D.Va. Jan. 26, 2011) (holding that a plaintiff did not have a reasonable expectation of privacy in a telephone conversation with his attorney which took place in a police interrogation room).10 This is because the need for confidential attorney-client communications and the informed legal assistance they facilitate is no less pressing in a police station or jailhouse setting than in other circumstances. See Lanza v. State of New York, 370 U.S. 139, 143-44, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962) ("[I]t may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection.").11

Moreover, when the police take actions during an interview or interrogation
[879 F.Supp.2d 1349]
which suggest that a suspect's conversations will be private, an expectation of privacy is more reasonable. See Cox v. State, 26 So.3d 666, 676 (Fla. 4th DCA 2010); State v. Munn, 56 S.W.3d 486, 496 (Tenn.2001); State v. Calhoun, 479 So.2d 241 (Fla. 4th DCA 1985); see also Larzelere v. State, 676 So.2d 394, 405 (Fla. 1996) (in finding that no Fourth Amendment violation occurred, noting that the police did nothing to foster an expectation of privacy). Here, Marmo's actions in closing the door to the interview room when exiting and allowing plaintiffs to speak alone fostered an expectation of privacy. Cf. North v. Superior Court, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 1311 (1972). This is especially true given that people generally believe conversations with their attorneys will be kept privileged and confidential. It is also objectively reasonable for a suspect to rely on his attorney's opinions regarding confidentiality and the attorney-client privilege. Gennusa clearly conveyed to Studivant that she believed their conversations were private by providing legal advice, discussing legal strategy (such as whether to provide the written statement to the police), and asking questions regarding the subject of her representation.

As a local criminal defense attorney, Gennusa also had additional reasons to conclude that her conversations with Studivant were private. She testified that, in the past, when police interviews with her clients had been recorded, she had been informed of this fact so that she could arrange for private communications. (Doc. 26-1 at 67-72.) Gennusa further testified that, as a member of the local defense bar, she had been told that the Sheriff's Office recorded only confessions and statements from suspects rather than the full contents of all interviews. (Id.) No reasonable attorney in Gennusa's position would have expected that her conversations with her client were being actively monitored and recorded when no officers were present in the room.

Considering these facts, the Court holds that plaintiffs had a reasonable expectation of privacy in the attorney-client conversations held in the police interview room. The surreptitious recording of these conversations thus violated the Fourth Amendment and constituted an actionable interception of an "oral communication" under the Wiretapping Act.

Moreover, defendants are not entitled to qualified immunity because their actions violated plaintiffs' clearly established rights. Although there appears to be no case precisely on point, the Supreme Court has held that "a constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); see also Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1277 (11th Cir.2004) ("While officials must have fair warning that their acts are unconstitutional, there need not be a case `on all fours,' with materially identical facts, before we will allow suits against them. A principle of constitutional law can be `clearly established' even if there are notable factual distinctions between the precedents relied on and the case then before the Court, so long as the prior decisions gave reasonable warning that the conduct at issue violated constitutional rights.") (quotations omitted). Since at least the Supreme Court's decision in Katz, it has been clearly established that the Fourth Amendment prohibits the police from electronically
[879 F.Supp.2d 1350]
intercepting communications without a warrant when the speakers have a reasonable expectation of privacy. This is especially clear when the intercepted communications involve privileged attorney-client communications. See Lonegan, 436 F.Supp.2d at 436-39 (holding that, under precedent such as Katz, prison officials were not entitled to qualified immunity with respect to their actions in recording attorney-client conversations). Under the facts of this case, this rule applies "with obvious clarity" to defendants' actions in secretly recording and actively monitoring plaintiffs' private attorney-client conversations. Hope, 536 U.S. at 741, 122 S.Ct. 2508.12

This might be a different case if the recording of attorney-client discussions had been mistaken, inadvertent, or fleeting. But this was none of that: it was a purposeful and advised recording and monitoring of privileged communications by law enforcement officers who then used the information learned to try to advance their case against Studivant.

Because no material facts are in dispute with respect to Counts I and V, plaintiffs' cross-motion for summary judgment is due to be granted, and defendants' motion is due to be denied.

B. Plaintiffs' Claims Against Sheriff Shoar (Counts IV, VI, VII, VIII)

Plaintiffs assert claims against Sheriff Shoar in his official capacity as Sheriff of St. Johns County. "It is well established that a suit against a defendant governmental officer in his official capacity is the same as a suit against the entity of which the officer is an agent." Manders v. Lee, 285 F.3d 983, 990 (11th Cir.2002). Because Sheriff Shoar is an agent of St. Johns County, "in all respects other than name," plaintiffs' claims are against the County. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1115 (11th Cir.2005).

1. Counts IV and VI

In Counts IV and VI, plaintiffs allege that Sheriff Shoar instituted a policy or custom of taping attorney-client conversations without the knowledge or consent of the attorney or client. Plaintiffs claim this policy violated their rights under the Fourth Amendment and the Federal Wiretapping Act, thus giving rise to municipal liability under section 1983. (Doc. 41 at 10-13.)

"[A] plaintiff seeking to impose liability on a municipality under § 1983 [must] identify a municipal `policy' or `custom' that caused the plaintiff's injury." Board of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A plaintiff may establish liability pursuant to a municipal policy when "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).13 "To prove
[879 F.Supp.2d 1351]
§ 1983 liability against a municipality based on custom, a plaintiff must establish a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a `custom or usage' with the force of law." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th Cir. 2001) (quotation omitted).

To demonstrate municipal liability, a plaintiff must also establish a "direct causal link between a municipal policy and the alleged constitutional injury." Amer. Fed'n of Labor and Congress of Indus. Orgs. v. City of Miami, Fla., 637 F.3d 1178, 1187 (11th Cir.2011). "When a municipal policy itself violates federal law, or directs a municipality to do so, resolving issues of fault and causation is straightforward." Id. (citation omitted). However, "[i]f a facially-lawful municipal action is alleged to have caused a municipal employee to violate a plaintiff's constitutional rights, the plaintiff must establish that the municipal action was taken with `deliberate indifference' as to its known or obvious consequences." Id. (citation omitted).

Plaintiffs argue that St. Johns County is liable under section 1983 because "the Sheriff's office standard procedure is to record all interviews without regard to the attorney-client privilege." (Doc. 52 at 14.) The written policy of the Sheriff's Office gives detectives discretion regarding when to record interviews and statements. (Doc. 50-1 at 4.)14 Nothing in the written policy, however, encourages detectives to surreptitiously record attorney-client communications. (See id.)15 Because the County's written policy does not itself violate federal law or direct an officer to do so, plaintiffs must show that the policy was adopted with "deliberate indifference" to their constitutional rights. Plaintiffs, however, have not attempted to make such a showing, and also have failed to establish that the alleged violation of their rights was caused by a custom of St. Johns County. The Court therefore cannot grant summary judgment in plaintiffs' favor.

Sheriff Shoar, however, has not moved for summary judgment on the grounds that the policy or custom requirement has not been met. Instead, Sheriff Shoar simply argues that the County cannot be liable because plaintiffs' rights were not violated. (Doc. 44 at 11.)

The Court alerted the parties to these inadequacies at the July 29, 2011 hearing. Specifically, the Court stated that plaintiffs' evidence was likely insufficient to establish municipal liability, but that Sheriff Shoar had not moved for summary judgment on that ground. (Doc. 39 at 10.)
[879 F.Supp.2d 1352]
While plaintiffs seem to have been unable to discover the required evidence,16 Sheriff Shoar's continued failure to raise such an obvious issue, after the Court's comments, is inexplicable.

Ordinarily, under these circumstances the Court would deny Sheriff Shoar's motion for summary judgment and proceed to trial. However, because the facts of this case are undisputed, the Sheriff's motion is due to be granted on each of plaintiffs' municipal liability claims; it would thus be a waste of resources to go to trial on this issue. Under Rule 56(f), "[a]fter giving notice and a reasonable time to respond, the court may: ... grant the motion on grounds not raised by a party; or, consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute." Fed.R.Civ.P. 56(f)(2); see also Gentry v. Harborage Cottages-Stuart, LLLP, 654 F.3d 1247, 1261 (11th Cir.2011) ("A court may grant a motion for summary judgment on grounds not raised by a party only `after giving notice and a reasonable time to respond.'") (quoting Fed.R.Civ.P. 56(f)). The Court gave plaintiffs sufficient notice at the July 29, 2011 hearing, and, despite undertaking additional discovery, plaintiffs have been unable to develop this issue. (Doc. 39 at 10.) Because, as a matter of law, plaintiffs have not created an issue of fact regarding municipal liability, summary judgment is due to be granted for Sheriff Shoar on Counts IV and VI, and plaintiffs' cross-motion for summary judgment is due to be denied.

2. Counts VII and VIII

In Counts VII and VIII, Gennusa alleges that Sheriff Shoar illegally intercepted her oral communications with different, unnamed clients in attorney-client meeting rooms at the St. Johns County Correctional Facility. (Doc. 41 at 14-16.) These meeting rooms are in a different facility from the interview room at the Sheriff's Office which gives rise to the other counts. Gennusa now concedes that, because the cameras in these meeting rooms have no audio or video recording capability, Sheriff Shoar is entitled to summary judgment on Counts VII and VIII. (Doc. 52 at 15.)

C. Damages

Because summary judgment is due to be granted for defendants on Counts IV, VI, VII, and VIII, plaintiffs no longer have a claim for injunctive relief. While plaintiffs are entitled to summary judgment on Counts I, II, III, and V, it appears that plaintiffs may be entitled only to statutory damages under the Federal Wiretapping Act,17 and attorneys' fees, costs and perhaps relatively minimal compensatory or nominal damages on the other counts.18
[879 F.Supp.2d 1353]
To avoid additional time and expenses, the parties therefore should try to resolve the issues of damages and fees in a settlement conference with Magistrate Judge Richardson.

Accordingly, it is hereby

ORDERED:

1. Plaintiffs' Motion for Summary Judgment (Doc. 52) is GRANTED IN PART AND DENIED IN PART. Summary judgment is GRANTED with respect to Counts I, II, III, and V, but is otherwise DENIED.

2. Defendants' Renewed Motion for Final Judgment (Doc. 44) is GRANTED IN PART AND DENIED IN PART. Summary judgment is GRANTED with respect to Counts IV, VI, VII, and VIII and is otherwise DENIED.

3. This case is referred to the Honorable Monte C. Richardson, United States Magistrate Judge, to conduct a settlement conference. The parties should contact Judge Richardson's chambers at 904-301-6740 to coordinate the settlement conference.

4. If the case is not settled, the Court will set a status conference to determine how to resolve the damages and fees issues.

FootNotes


1. The camera was not obviously recognizable, no signs warned of the possibility of surveillance, and plaintiffs were not told that they were being recorded or monitored. (Docs. 26-1 at 67-72; 26-2 at 30-31.)
Soon after the incidents giving rise to this case, however, the Sheriff's Office posted signs outside its interview rooms which clearly indicate that anyone entering the rooms is subject to recording. (Doc. 50-2 at 53-56.) According to Sheriff Shoar, an attorney who wishes to speak privately with her client must request access to a different room. (Id.)

2. The Court has viewed the recording of the interview, which is attached as an exhibit to the Complaint. (Doc. 1-1.)
3. Defendants also assert that Studivant lacks standing to assert an excessive force claim because the force was directed at Gennusa. (Doc. 44 at 12.)
4. Moreover, the text of the Fourth Amendment specifically identifies a person's "papers" as being entitled to protection. See U.S. Const. amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....") (emphasis added). As Chief Judge Kozinski has explained, "[p]apers are personal property.... What makes papers special — and the reason they are listed alongside houses, persons and effects — is the ideas they embody, ideas that can only be seized by reading the words on the page." United States v. Seljan, 547 F.3d 993, 1017 (9th Cir.2008) (Kozinski, J., dissenting).
5. Both Marmo and Canova are liable for the seizure of Studivant's statement. A supervisory official may be liable under § 1983 "either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990). Although Marmo physically seized the statement, Canova instructed Marmo to enter the room and take the statement. (Doc. 28-1 at 6-8.) Additionally, Canova watched the events transpire and took no action to return the statement or otherwise remedy the situation.
6. Defendants do not challenge either plaintiffs' standing to assert a claim of unreasonable seizure. Even if such a challenge had been raised, however, the Supreme Court has "discarded reliance on concepts of `standing' in determining whether" a Fourth Amendment violation has occurred; instead, the inquiry "is simply whether the defendant's rights were violated by the allegedly illegal search or seizure." United States v. Salvucci, 448 U.S. 83, 87 n. 4, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); see also United States v. Thompson, 928 F.2d 1060, 1064 (11th Cir. 1991) ("[T]o determine whether a defendant may challenge a search and seizure as a violation of his Fourth Amendment rights the correct inquiry is no longer whether an individual has standing to challenge a search separate and apart from the merits of his challenge.") (quotation omitted). Because Studivant created the statement and placed it in the care of his attorney, the Court finds that both plaintiffs had a possessory interest in the statement which was entitled to the protections of the Fourth Amendment. See, e.g., DeMassa v. Nunez, 770 F.2d 1505, 1506-07 (9th Cir.1985) (holding that a client had a legitimate expectation of privacy in papers held by his attorney).
7. Defendants have suggested that Gennusa doubted that her conversation was private because, at one point in the video, she cautions Studivant not to discuss something. (Doc. 44 at 9.) After having viewed the video, the Court finds that there is no factual basis to doubt plaintiffs' uncontroverted testimony that they were subjectively unaware of the recording. See Brooks v. Cnty. Comm'n of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir.2006) ("A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.") (quotation omitted).
8. Plaintiffs' subjective expectation of privacy and that their conversations occurred within the attorney-client relationship readily distinguish this case from many others in which a party has unsuccessfully asserted a Fourth Amendment claim arising from the recording of a conversation with a co-defendant or family member in a police interview room. See, e.g., United States v. Swift, 623 F.3d 618, 622 (8th Cir.2010) (no reasonable expectation of privacy in a conversation with a co-defendant where the suspect "recognized the likelihood that officers were watching him"); United States v. Delibro, 347 Fed.Appx. 474, 475 (11th Cir.2009) (no reasonable expectation of privacy when the suspect "was well aware that law enforcement could be monitoring his conversations" with his mother); State v. Wilkins, 125 Idaho 215, 868 P.2d 1231, 1238 (1994) ("Absent some special circumstance, the overhearing and transcription of a conversation between a person detained and the person's visitors in a jailhouse visiting room does not violate the detained person's Fourth Amendment rights.") Unlike attorney-client communications, society does not have an interest in preserving the confidentiality of such conversations that would override the value of disclosure.
The cases relied on by defendants, Johnson v. State, 730 So.2d 368 (Fla. 5th DCA 1999), and Boyd v. State, 17 So.3d 812 (Fla. 4 DCA 2009) are similarly distinguishable. In Johnson, the court affirmed the trial court's decision not to exclude a recording of a conversation between the defendant and his wife that took place in a police interview room. The court found that the defendant did not have a reasonable expectation of privacy where the police had not fostered any such expectation and there was strong evidence that the defendant and his wife did not subjectively believe their conversation was private. Johnson, 730 So.2d at 369-70. Moreover, in Boyd, the court affirmed the trial court's decision to admit a recording of a conversation between two suspects who were husband and wife. 17 So.3d at 814-17. Because the husband and wife were both suspects (and were aware of this fact), Boyd is analogous to cases in which courts have found that co-defendants did not have reasonable expectations of privacy in similar situations. While there is language in the court's opinion in Boyd that could be construed to suggest that a party can never have a reasonable expectation of privacy in a conversation that is recorded by a third party, 17 So.3d at 818, such an interpretation would put the court's opinion squarely at odds with the Supreme Court's opinion in Katz.
9. The court in Sowards ultimately held that the plaintiff's rights were not clearly established based, in part, on the fact that the attorney was a fact witness to the crime under investigation. Id. at *4.
10. The court's decision in Deegan can be distinguished on two grounds: 1) the plaintiff had already been arrested; and 2) the plaintiff spoke with his attorney over the phone, and only the plaintiff's side of the conversation was recorded. Id.
11. In federal prisons, "[t]he recording of inmate and attorney conversations is generally not permitted except under narrow circumstances." United States v. Ramos-Gonzalez, No. 07-0318(PG), 2010 WL 4181674, at *7 (D.P.R. Oct. 25, 2010) (citing 28 C.F.R. § 543.13(e)). Although the law governing federal prisons is not applicable here, it further demonstrates that society has recognized the need for confidential attorney-client communications in the prison and police station context.
12. While the Court does not pass on its constitutional bona fides, the Sheriff's post-hoc decision to post a sign warning those who enter the interview room they may be recorded arguably might put an attorney on notice to request a different, private location to speak to her client.
13. However, "the mere delegation of authority to a subordinate to exercise discretion is not sufficient." Mandel v. Doe, 888 F.2d 783, 792 (11th Cir.1989). The Eleventh Circuit has "strictly interpreted Monell's policy or custom requirement to preclude § 1983 liability for a subordinate official's decisions when the final policymaker delegates decisionmaking discretion to the subordinate, but retains the power to review the exercise of that discretion. In other words, final policymaking authority over a particular subject matter does not vest in an official whose decisions are subject to meaningful administrative review." Doe v. School Board of Broward Cnty., Fla., 604 F.3d 1248, 1264 (11th Cir.2010) (quotation omitted). However, an official with final policymaking authority may ratify the actions of a subordinate by "actively endorsing or approving" their conduct. Garvie v. City of Fort Walton Beach, Fla., 366 F.3d 1186, 1189 (11th Cir.2004).
14. This discretion is subject to "the approval of his/her supervisor." (Id.)
15. Moreover, plaintiffs have not argued in their motion for summary judgment that any official with final policymaking authority violated their rights or ratified any such violation.
16. In his deposition, Sheriff Shoar made several statements that would refute any claim that the County's policy was adopted with "deliberate indifference." For example, he stated that when the policy was discussed internally at the Sheriff's Office, he believed that people ordinarily assumed they were being recorded and that "99 percent of the time attorneys aren't in those rooms." (Doc. 50-2 at 54-55.) Sheriff Shoar also stated that, prior to the incident at issue in this case, he had not been made aware of a previous instance of an attorney and her client being recorded in an interview room without the presence of an officer. (Id. at 74.)
17. Pursuant to 18 U.S.C. § 2520(c)(2), the Court "may" impose the greater of actual damages suffered by plaintiffs, $100 a day for each day of violation, or $10,000 in statutory damages.
18. Studivant ultimately entered into a deferred prosecution agreement; therefore it does not appear that either the written statement or recording were ultimately used against him.

http://www.leagle.com/decision/In%20FDCO%2020120717C93.xml/GENNUSA%20v.%20SHOAR


HONORABLE ADELBERTO JORDAN OF FLORIDA, UNITED STATES COURT OF APPEALS JUDGE WHO WROTE APPELLATE DECISION AFFIRMING JUDGE CORRIGAN'S GENNUSA v. SHOAR DECISION


HONORABLE JOEL F. DUBINA OF ALABAMA, UNITED STATES COURT OF APPEALS JUDGE WHO CONCURRED IN APPELLATE DECISION AFFIRMING JUDGE CORRIGAN'S DECISION IN GENNUSA V. SHOAR


HONORABLE EMMETT RIPLEY COX OF ALABAMA, UNITED STATES COURT OF APPEALS JUDGE WHO CONCURRED IN GENNUSA DECISION


2014 11TH CIRCUIT COURT OF APPEALS DECISION:

United States Court of Appeals,Eleventh Circuit.
Anne Marie GENNUSA, Joel Studivant, Plaintiffs–Appellees Cross Appellants, v. Brian CANOVA, individually, Thomas Marmo, individually, Defendants–Appellants Cross Appellees.


No. 12–13871.
Decided: April 8, 2014
Before JORDAN, COX, and DUBINA, Circuit Judges. Bryan E. Demaggio, Matthew R. Kachergus, William J. Sheppard, Elizabeth Louise White, Sheppard White & Kachergus, PA, Jacksonville, FL, D. Gray Thomas, Law Office of D. Gray Thomas, P.A., Jacksonville, FL, for Plaintiffs–Appellees. John W. Jolly, Jr., Jolly & Peterson, PA, Tallahassee, FL, for Defendants–Appellants.

While investigating an alleged misdemeanor violation of a domestic violence injunction, Detective Thomas Marmo and Sergeant Brian Canova monitored, intercepted, and listened to privileged conversations between their suspect, Joel Studivant, and his attorney, Anne Marie Gennusa, who were in an interview room at the St. Johns County Sheriff's Office. They did so without any notice to Mr. Studivant and Ms. Gennusa, and without a warrant. Det. Marmo also seized from Ms. Gennusa, on Sgt. Canova's order, a statement written by Mr. Studivant. This too was done without a warrant.

In a thorough and well-reasoned summary judgment order, see Gennusa v. Shoar, 879 F.Supp.2d 1337 (M.D.Fla.2012), the district court ruled that the surreptitious electronic eavesdropping violated the Fourth Amendment and the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., and that the seizure of Mr. Studivant's written statement contravened the Fourth Amendment. The district court further concluded that Det. Marmo and Sgt. Canova were not protected by qualified immunity. Det. Marmo and Sgt. Canova appeal, asserting that they are entitled to qualified immunity on the Fourth Amendment claims.1

After review of the record, and with the benefit of oral argument, we affirm. First, it has long been clearly established that the warrantless interception of private conversations—like the privileged ones here—offends the Fourth Amendment. Second, Det. Marmo and Sgt. Canova did not properly assert in the district court that the seizure of Mr. Studivant's statement was permitted by the exigent circumstances exception to the Fourth Amendment's general warrant requirement.

I

We conduct plenary review of the district court's grant of summary judgment, viewing the facts in the light most favorable to the non-moving parties. Summary judgment is appropriate if there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Bradley v. Franklin Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir.2014). As the district court noted, see Gennusa, 879 F.Supp.2d at 1342–43, the relevant facts, which we set out below, are undisputed.

In the summer of 2009, Det. Marmo was investigating Mr. Studivant's possible misdemeanor violation of a domestic violence injunction. On June 8, 2009, in the course of that investigation, Det. Marmo conducted a non-custodial interview of Mr. Studivant at the St. Johns County Sheriff's Office. Ms. Gennusa was present during the interview as Mr. Studivant's attorney. The interview was conducted in an interview room at the Sheriff's Office that was 10 feet by 10 feet, contained a table, and had a small window on the door.

Unbeknownst to Mr. Studivant or Ms. Gennusa, all that took place in the interview room—including their privileged attorney-client conversations—was being recorded and actively monitored by members of the Sheriff's Office (including Det. Marmo and Sgt. Canova) through a concealed camera in the room. The camera was not obviously recognizable, no signs warned visitors of the possibility of electronic surveillance, and Mr. Studivant and Ms. Gennusa were not told that they were being recorded or monitored. See id. at 1342 n. 1.

When the interview began, Mr. Studivant agreed to prepare a sworn written statement. As Mr. Studivant began writing his statement, Det. Marmo left the interview room and closed the door. While they were alone in the room, Mr. Studivant and Ms. Gennusa discussed matters related to the investigation.

Ms. Gennusa then left the interview room and met with Det. Marmo in his office. When she returned to the interview room, Ms. Gennusa closed the door and informed Mr. Studivant that Det. Marmo was going to arrest him. Following a discussion with Ms. Gennusa, Mr. Studivant decided he no longer wanted to give Det. Marmo a written statement.

Det. Marmo came back to the interview room and demanded Mr. Studivant's written statement. After a somewhat heated discussion, Mr. Studivant and Ms. Gennusa refused to turn over the statement. Det. Marmo left the room again and went to see his supervisor, Sgt. Canova. During their conversation, Det. Marmo and Sgt. Canova actively monitored Mr. Studivant and Ms. Gennusa in the interview room, and saw Ms. Gennusa place the written statement on the table. Sgt. Canova instructed Det. Marmo to return to the interview room and retrieve the statement.

As he came back into the room, Det. Marmo forcibly grabbed the statement from underneath Ms. Gennusa's hand. He then arrested Mr. Studivant for violation of the domestic violence injunction, and later attached the written statement to his arrest report. Mr. Studivant ultimately entered into a deferred prosecution agreement, and the criminal charge against him was dismissed.

Mr. Studivant and Ms. Gennusa filed suit in federal district court against Det. Marmo and Sgt. Canova in their individual capacities. They asserted claims under 42 U.S.C. § 1983 for violations of the Fourth Amendment (based on the warrantless recording of their privileged conversations and the seizure of the written statement), and under 18 U.S.C. § 2520(a) for violations of the Federal Wiretap Act (based on the warrantless recording).2

II

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, 134 S.Ct. 3, 4–5 (2013) (internal citations and quotation marks omitted).

Because it is undisputed that Det. Marmo and Sgt. Canova were acting within the scope of their discretionary authority, Mr. Studivant and Ms. Gennusa bear the burden of establishing that qualified immunity is not appropriate. See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002). To satisfy this burden, they must show two things—first, that Det. Marmo and Sgt. Canova violated the Fourth Amendment, and second, that at the time of the incidents in question it was clearly established that the challenged conduct was unconstitutional. See, e.g., McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.2009).

III

We begin with the warrantless monitoring and recording of the attorney-client conversations of Mr. Studivant and Ms. Gennusa. The district court held that Det. Marmo and Sgt. Canova violated the Fourth Amendment because Mr. Studivant and Ms. Gennusa had a “subjective expectation[ ] that their conversations were private” and because this expectation, given the confidential attorney-client nature of the conversations, was “objectively reasonable.” See Gennusa, 879 F.Supp.2d at 1346–49. The district court also denied qualified immunity to Det. Marmo and Sgt. Canova. Acknowledging that there was “no case precisely on point,” the district court explained that since the late 1960s “it has been clearly established that the Fourth Amendment prohibits the police from electronically intercepting communications without a warrant when the speakers have a reasonable expectation of privacy.” See id. at 1349–50.

On appeal, Det. Marmo and Sgt. Canova challenge the district court's qualified immunity ruling on two grounds. They argue that neither Mr. Studivant nor Ms. Gennusa had a reasonable expectation that their attorney-client conversations in the interview room would be private, and that, as a result, there was no constitutional violation. See Br. for Appellants at 15–16. They also contend that it was not obvious to a reasonable officer in June of 2009 that monitoring and recording those conversations without a warrant violated the Fourth Amendment. See id. at 16–18. As we explain, neither argument carries the day.

A

The Fourth Amendment, as applied to the states by way of the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 646–47 (1961), protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. For our purposes, a Fourth Amendment search occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001).

Almost 50 years ago, the Supreme Court held that a “ ‘conversation [is] within the Fourth Amendment's protections,” and that “the use of electronic devices to capture it [is] a ‘search’ within the meaning of the Amendment.” See Berger v. New York, 388 U.S. 41, 51 (1967) (invalidating a New York statute that authorized the electronic interception of private conversations by the police (through recording devices installed in various offices) pursuant to a court order, on the ground that the procedures for obtaining the order were insufficient to comply with the Warrants Clause of the Fourth Amendment). In a number of cases following Berger, the Supreme Court similarly ruled that the warrantless electronic interception of private conversations by the government violates the Fourth Amendment. See Katz v. United States, 389 U .S. 347, 353–59 (1967) (warrantless interception of conversation conducted from public phone booth in case involving use of wires to make bets or wagers); United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 318–21 (1972) (warrantless interception of calls in case involving domestic threat to national security—a plot to bomb the office of the Central Intelligence Agency); Mitchell v. Forsyth, 472 U.S. 511, 531–34 (1985) (warrantless wiretap of anti-war group which had made plans to blow up heating tunnels connecting office buildings in Washington, D.C.). Mitchell, while granting qualified immunity to the Attorney General because the warrantless wiretapping at issue there had been authorized prior to Katz, explained that Katz “held that no recognized exception to [the Fourth Amendment's] warrant requirement could justify warrantless wiretapping in an ordinary criminal case.” Mitchell, 472 U.S. at 531. These cases stand for the now-unremarkable proposition that, because society recognizes as reasonable an expectation of privacy for confidential conversations between individuals, the government needs a warrant to intercept or record such conversations.3

The only question, then, is whether the subjective expectation of privacy held by Mr. Studivant and Ms. Gennusa about their privileged attorney-client conversations is one that society recognizes as reasonable, and we easily conclude that it is. An expectation of privacy is deemed reasonable, the Supreme Court has said, if it “has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978). See also Minnesota v. Carter, 525 U.S. 83, 88 (1998) (same). Mr. Studivant and Ms. Gennusa have pointed to such a source: the attorney-client privilege, which is the “oldest of the privileges for confidential communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (citation omitted). See Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (explaining that the attorney-client privilege “is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure”). Given that the intercepted conversations had to do with the ongoing criminal investigation of Mr. Studivant by Det. Marmo, they fell squarely within the attorney-client privilege. See Upjohn Co., 449 U.S. at 389. Cf. United States v. Ofhse, 817 F.2d 1508, 1511, 1516 n. 6 (11th Cir.1987) (characterizing as “reprehensible” the government's use of a defense attorney as an informant against his indicted client, and the placement of a body bug on the attorney “to conduct ․ electronic surveillance of the conversations” between he and his client).

The Supreme Court has also held that whether an expectation of privacy is “ ‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests.” See Hudson v. Palmer, 468 U.S. 517, 527 (1984) (holding that an inmate has no reasonable expectation of privacy in his prison cell). Under this formulation, we come to the same conclusion. Here the competing interests are the interest of society in monitoring attorney-client conversations in a non-custodial setting at a sheriff's office and the interest of the attorney and client in keeping their privileged conversations in such a setting private. Given these interests, we readily strike the balance in favor of privacy. The government has no weighty law-enforcement, security, or penological interest in recording, without a warrant, the attorney-client conversations of a person who has not been arrested, even if those conversations take place in an interview room at a sheriff's office. On the other hand, the need for privacy is very strong when a person who is not under arrest or otherwise in custody is speaking to his attorney on privileged matters, even within the confines of an interview room at a sheriff's office. “One threat to effective assistance of counsel posed by government interception of attorney-client communications lies in the inhibition of free exchanges between defendant and counsel because of the fear of being overheard.” Weatherford v. Bursey, 429 U.S. 545, 554 n. 4 (1977). So, even if the Hudson balancing test applies, Mr. Studivant and Ms. Gennusa had an objectively reasonable expectation of privacy when they discussed privileged matters in the interview room.

In an effort to demonstrate that Mr. Studivant and Ms. Gennusa did not have an objectively reasonable expectation of privacy, Det. Marmo and Sgt. Canova point to a number of cases involving the recording of certain conversations at police stations. These cases, however, are distinguishable because they involved individuals who had been arrested, were in police custody, and/or had some indication that they were being monitored. See United States v. Delibro, No. 09–11995, 2009 WL 3059064, 347 Fed. App'x 474, 475 (11th Cir. Sept. 25, 2009) (arrestee and his mother did not have a reasonable expectation of privacy in an actively-monitored police interview room, as arrestee was “well aware” that police could be monitoring his conversations, and as a result there was no basis to suppress conversations between them that the police had recorded without a warrant); Johnson v. State, 730 So.2d 368, 370 (Fla.Dist.Ct.App.1999) (police did not violate the Fourth Amendment by recording, without a warrant, conversations between a husband, who had been arrested, and his wife in an interview room at a police station because no reasonable expectation of privacy existed and wife admitted that she did not know if they were being surveilled or recorded); Deegan v. Rudman, Civil Action No. 3:10–cv–00016, 2011 WL 251226, at *3–*4 (W.D.Va. Jan. 26, 2011) (arrestee did not have a reasonable expectation of privacy in an interrogation room at a police station, where video and audio monitoring was “routine,” and therefore police did not violate the Fourth Amendment by recording his side of a conversation with his attorney on an officer's cell phone).

The status of the persons being recorded matters because, as the Supreme Court has said on various occasions, “the expectations of privacy of an individual taken into police custody ‘necessarily [are] of a diminished scope.’ “ Maryland v. King, 133 S.Ct. 1958, 1978 (2013) (citation omitted). Unlike the individuals in Delibro, Johnson, and Deegan, Mr. Studivant was not under arrest at the time of his privileged conversations with Ms. Gennusa, and his interview with Det. Marmo was non-custodial. And, unlike certain of the individuals in those cases, who had some indication that they were being surveilled and monitored, Mr. Studivant and Ms. Gennusa had no idea that Det. Marmo, Sgt. Canova, and other members of the St. Johns Sheriff's Office were eavesdropping on them. Indeed, as the district court put it, they were “given no indication of this fact.” See Gennusa, 879 F.Supp.2d at 1341 & n. 1. Cf. United States v. Duncan, 598 F.2d 839, 852 (4th Cir.1979) (holding, in criminal prosecution under the Federal Wiretap Act, that IRS agents conducting an audit at a bank had a reasonable expectation of privacy in an office assigned to them by the bank, and distinguishing cases holding that “statements made by a prisoner in police custody may not be considered justifiably private”: “The significant fact in the cases involving statements uttered while in police custody is not the hostility between officer and suspect; it is the fact that the speaker was in police custody. Those cases simply announce a societal decision that one may not reasonably expect his utterances to be private while he is held in police custody for violation of the law.”).4

In sum, Mr. Studivant and Ms. Gennusa had a reasonable expectation of privacy for their privileged attorney-client conversations in the interview room of the St. Johns County Sheriff's Office. The surreptitious recording and monitoring of those attorney-client conversations, without notice to Mr. Studivant or Ms. Gennusa, and without a warrant, violated the Fourth Amendment .5

B

We next address whether, in June of 2009, it was clearly established that the Fourth Amendment prohibited the warrantless recording of attorney-client conversations between a non-incarcerated suspect and his attorney under the circumstances presented here. Like the district court, see Gennusa, 879 F.Supp.2d at 1349–50, we answer that question in the affirmative.

We do not always “require a case directly on point before concluding that the law is clearly established, but existing precedent must have placed the statutory or constitutional question beyond debate.” Stanton, 134 S.Ct. at 5. In other words, a “constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). See also Coffin v. Brandau, 642 F.3d 999, 1014–15 (11th Cir.2011) (en banc) (“To find that a broad principle of law clearly establishes the law as to a specific set of facts, it must do so with obvious clarity to the point that every objectively reasonable government official facing the circumstances would know that the official's conduct did violate federal law when the official acted.”) (internal quotation marks and citation omitted). In the end, the “touchstone is whether the right would be apparent to a reasonable officer.” Gilmore v. Hodges, 738 F.3d 266, 277 (11th Cir.2013).

It has long been clear that the electronic interception of oral conversations constitutes a search under the Fourth Amendment. See Berger, 388 U.S. at 51. It has also long been clear that in ordinary criminal cases the warrantless interception of private phone calls violates the Fourth Amendment because it infringes the reasonable expectation of privacy of the conversants. See Katz, 389 U.S. at 353–59. And, finally, it has long been clear that even in sensitive cases involving domestic threats to national security law enforcement officials need a warrant before electronically intercepting private communications. See U.S. Dist. Court, 407 U.S. at 318–21; Mitchell, 472 U.S. at 531–34. The cases establishing these principles—Berger, Katz, U.S. District Court, and Mitchell—and their reasoning, see Hope, 536 U.S. at 743, made it obvious and apparent to any reasonable law enforcement official in June of 2009 that the Fourth Amendment requires that a warrant be secured before non-custodial privileged communications between attorneys and their clients—communications which are normally entitled to be kept confidential as a matter of law—can be electronically monitored, intercepted, or recorded.

That the attorney-client conversations here took place inside an interview room at a sheriff's office does not mean that Det. Marmo and Sgt. Canova lacked clear notice that their warrantless electronic surveillance was illegal. As the Supreme Court has explained, “[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances,” as long as the “state of the law [at the relevant time] gave [them] fair notice that their [actions] w[ere] unconstitutional,” Hope, 536 U.S. at 741, and that is the case here. Although locale can matter, see, e.g., McKinnon, 985 F.2d at 527–28 (holding that a suspect does not have a reasonable expectation of privacy in the back seat of a police car), it is not dispositive. We held more than 20 years ago that the “location of the conversations that [are] intercepted is not determinative; the proper inquiry is whether the government's activities in electronically listening to and recording the conversations violated privacy upon which [the participants] justifiably relied.” United States v. Shields, 675 F.2d 1152, 1158 (11th Cir.1982). Here Mr. Studivant had not been arrested, and his liberty had not been curtailed in any way. His status therefore did not result in a diminished expectation of privacy.

Stated differently, the “fact that the [monitoring and recording] took place in the context of [an interview room at a sheriff's office] does not materially distinguish this case from [Supreme Court] precedent [on electronic surveillance of private conversations].” Skrtich v. Thornton, 280 F.3d 1295, 1304 (11th Cir.2002) (excessive force claim in prison setting). See also O'Rourke v. Hayes, 378 F.3d 1201, 1208 (11th Cir.2004) (warrantless search of home: “[E]ven if a factually similar case did not exist, [the warrantless search] would still have violated rights that are clearly established under ․ general statements of principle.”). The district court therefore correctly held that Det. Marmo and Sgt. Canova were not entitled to qualified immunity for their warrantless monitoring and recording of the privileged attorney-client conversations between Mr. Studivant and Ms. Gennusa.

IV

We now turn to the Fourth Amendment seizure claim. Det. Marmo and Sgt. Canova argue that the warrantless seizure of Mr. Studivant's written statement was constitutional because there were exigent circumstances, i.e., the threat of destruction of evidence. See Br. for Appellants at 20–22. They also maintain that Ms. Gennusa was not seized (because Detecive Marmo never touched her), and that, in any event, they are protected by qualified immunity. See id. at 22–24.

In relevant part, the Fourth Amendment protects the “right of the people to be secure in their “papers[ ] and effects[ ] against unreasonable searches and seizures.” U.S. Const. amend. IV. After Ms. Gennusa refused to give Mr. Studivant's written statement to him, Det. Marmo returned to the interview room and forcibly took the statement from underneath Ms. Gennusa's hand. This constituted a seizure of the statement for purposes of the Fourth Amendment, as Det. Marmo “meaningful[ly] interfere[d] with [the] possessory interests [of Mr. Studivant and Ms. Gennusa] in [an item] of property.” Sodal v. Cook Cnty., Ill., 506 U.S. 56, 61 (1992) (citation and internal quotation marks omitted). It matters not, therefore, that Ms. Gennusa herself was not physically touched or restrained.

“[I]n ‘the ordinary case,’ seizures of personal property are ‘unreasonable within the meaning of the Fourth Amendment,’ without more, ‘unless ․ accomplished pursuant to a judicial warrant,’ issued by a neutral magistrate after finding probable cause.” Illinois v. McArthur, 531 U.S. 326, 330 (2001) (quoting United States v. Place, 462 U.S. 696, 701 (1983)). There are, of course, certain limited exceptions to the Fourth Amendment's warrant requirement. One of those is exigent circumstances, which can exist when there is a “need to prevent the imminent destruction of evidence.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). To determine whether a police officer “faced an emergency that justified acting without a warrant,” a court “looks to the totality of circumstances.” Missouri v. McNeely, 133 S.Ct. 1552, 1559 (2013).

Det. Marmo and Sgt. Canova, as the government actors responsible for the warrantless seizure, “ha[d] the burden of proof of showing exigent circumstances.” United States v. Tovar–Rico, 61 F.3d 1529, 1535 (11th Cir.1995). According to the district court, however, Det. Marmo and Sgt. Canova “d[id] not argue that any exceptions to the warrant requirement appl [ied],” and it therefore found that they had “conceded that [Det.] Marmo seized [Mr.] Studivant's property without any exception to the warrant requirement.” Gennusa, 879 F.Supp.2d at 1344–45. Det. Marmo and Sgt. Studivant contest this determination, asserting that they raised exigent circumstances as a justification for the seizure of the statement, see Br. for Appellants at 20–22, but our review of the record indicates that the district court was correct. To explain why the district court got it right, we detail the relevant filings in the case.

In their second amended complaint, Mr. Studivant and Ms. Gennusa alleged in Counts II and III that the warrantless seizure of the statement violated their Fourth Amendment rights. See D.E. 41 at ¶¶ 40–41, 64–66, 70–73. They also alleged that, in grabbing the statement, Det. Marmo used excessive force in violation of the Fourth Amendment and broke Ms. Gennusa's fingernail. See id. at ¶ 67. So, as pled, Counts II and III contained an unreasonable seizure claim (based on the seizure of the statement) and an excessive force claim (based on the broken fingernail).

In their renewed motion for summary judgment, Det. Marmo and Sgt. Canova explicitly recognized that the second amended complaint pled a distinct Fourth Amendment unreasonable seizure claim based upon the taking of the statement without a warrant. See D.E. 44 at 6, 11.6 When they addressed that claim on the merits, they argued that the “single instantaneous grab of a piece of paper [wa]s of no constitutional dimension” because no force (or justified minimal force) had been used and because any physical contact with Ms. Gennusa was incidental and accidental. See id. at 12–13. They also argued, in a single sentence, that Det. Marmo “sought to prevent the arguable destruction of or tampering with evidence” in violation of Florida law. See id. at 13 (citing Florida cases). Finally, they argued that they were entitled to qualified immunity because there was no binding precedent (from the Supreme Court, the Eleventh Circuit, or the Florida Supreme Court) prohibiting a police officer from “grab[bing] evidence plainly visible but which is covered in part by the hand of a criminal defense lawyer who seems determined to decide unilaterally through self-help what information law enforcement officers can and cannot obtain.” See id. at 14.

When they responded to this summary judgment motion, and themselves moved for summary judgment, Mr. Studivant and Ms. Gennusa argued that the seizure of the statement without a warrant constituted a seizure that was per se unreasonable under the Fourth Amendment. They also asserted that “none of the exceptions to the warrant requirement [were] present.” See D.E. 52 at 10. Det. Marmo and Sgt. Canova did not file a response/reply memorandum or otherwise respond to the per se violation argument.

“[I]f ․ part[ies] hope[ ] to preserve a claim, argument, theory, or defense on appeal, [they] must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.” In re Pan Am. World Airways, Inc., 905 F.2d 1457, 1462 (11th Cir.1990). See also Bogle v. McClure, 332 F.3d 1347, 1355 n. 5 (11th Cir.2003) (concluding that officials waived a certain qualified immunity argument as a result of a stipulation they entered into). The single, passing reference to the prevention of the “arguable destruction of or tampering with evidence” by Det. Marmo and Sgt. Canova in their renewed summary judgment motion—unaccompanied by any discussion or elaboration—was insufficient to preserve an exigent circumstances argument. First, the reference was devoid of any factual support. Nowhere in their statement of facts or memorandum of law did Det. Marmo and Sgt. Canova present any evidentiary support for the purported reason Det. Marmo seized the statement. Nor did they cite to any evidence suggesting that they reasonably believed that there was an emergency because Ms. Gennusa—an officer of the court—was going to destroy the statement or tamper with it before they could secure a warrant. Second, there was no mention, and certainly no discussion, of the exigent circumstances standard under the Fourth Amendment. Third, there was no citation to any federal authorities. Fourth, the two Florida cases cited in the motion did not deal with exigent circumstances. See McNeil v. State, 438 So.2d 960, 961–63 (Fla.Dist.Ct.App.1983) (sufficiency of the evidence challenge to conviction for tampering with evidence); Smigiel v. State, 439 So.2d 239, 242–43 (Fla.Dist.Ct.App.1983) (challenge, in case involving tampering with evidence, to affidavit submitted in support of application for search warrant).

Simply put, the district court was not required to address an exigent circumstances argument that Det. Marmo and Sgt. Canova failed to properly articulate. It was not obliged “to distill [a] potential argument that could [have] be[en] made based upon the materials before it on summary judgment.” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995). We note, as well, that the answer of Det. Marmo and Sgt. Canova to the second amended complaint did not put the district court on notice that they were relying on exigent circumstances, for that pleading did not mention exigent circumstances when it listed qualified immunity as an affirmative defense. See D.E. 43 at 7.

In any event, assuming that the single, passing reference to Det. Marmo seeking to “prevent the arguable destruction of or tampering with evidence” was sufficient to present and preserve an exigent circumstances argument, the qualified immunity argument defense fails on the merits. As noted, Det. Marmo and Sgt. Canova did not point to or present any evidence to justify an objectively reasonable belief that they were facing an emergency justifying a warrantless seizure, and “[m]ere speculation [about exigent circumstances], without factual support, is not enough to overcome the warrant requirement.” United States v. Santa, 236 F.3d 662, 671 (11th Cir.2000). There was no explanation, for example, about why Det. Marmo could not have told Ms. Gennusa to preserve the statement because he was going to seek a warrant for it. And, because the warrantless seizure of personal property is unreasonable under the Fourth Amendment unless one of the exceptions to the warrant requirement applies, see McArthur, 531 U.S. at 330, qualified immunity does not apply. “[Det. Marmo and Sgt. Canova] did not have a search warrant, and can point to no exigency justifying [the seizure]. Consequently, even if a factually similar case did not exist, [their] actions would still have violated rights that are clearly established under these general statements of principle.” O'Rourke, 378 F.3d at 1208.

V

“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting). The monitoring and recording of the privileged attorney-client conversations between Mr. Studivant and Ms. Gennusa, without notice and without a warrant, violated their clearly established Fourth Amendment rights. So too, on this record, did the warrantless seizure of Mr. Studivant's written statement from Ms. Gennusa. The district court's grant of summary judgment in favor of Mr. Studivant and Ms. Gennusa is affirmed, and the case is remanded for further proceedings.

Affirmed.

FOOTNOTES

1. Det. Marmo and Sgt. Canova do not address the Federal Wiretap Act in their brief, even though a claim for intentional interception of an oral communication under the Act, 18 U.S.C. §§ 2510(2) & 2511(a)(1), requires a showing that the plaintiff had a subjective expectation of privacy “that society is willing to recognize as reasonable.” United States v. McKinnon, 985 F.2d 525, 527–28 (11th Cir.1983). We therefore do not address the claims under the Act.

2. Mr. Studivant and Ms. Gennusa also sued St. Johns County Sheriff David Shoar, but the district court's rulings on the official capacity claims against Sheriff Shoar are not before us in this appeal.

3. A warrant is not needed if one of the parties to the conversation consents to the interception or recording. See, e.g., United States v. Caceres, 440 U.S. 741, 744 (1979). Here, however, there was no consent.

4. A number of published cases rejecting the Fourth Amendment claims of inmates or detainees whose prison/jail calls were recorded are based on the rationale that the institution in question provided sufficient notice or warning that all calls would be recorded and that, as a result, the inmates or detainees were deemed to have consented to the recordings. See, e.g., United States v. Novak, 531 F.3d 99, 101–03 (1st Cir.2008); United States v. Lucas, 499 F.3d 769, 780 (8th Cir.2007) (en banc); United States v. Friedman, 300 F.3d 111, 123 (2d Cir.2002); Jackson v. State, 18 So.3d 1016, 1030 (Fla.2009). This rationale does not apply here, as Mr. Studivant and Ms. Gennusa were not given any notice or indication that their privileged conversations would be monitored and recorded. Cf. United States v. Noriega, 917 F.2d 1543, 1551 (11th Cir.1990) (“[If] Noriega did sign a valid release evidencing his understanding that all of his telephone conversations, including those with members of his defense team, would be recorded[,] ․ it is conceivable that the District Court could find that Noriega's attorney-client privilege would not prohibit the government's recording of Noriega's telephone conversations with his defense attorneys because he had no reasonable expectation of privacy.”).

5. Cf. Lanza v. New York, 370 U.S. 139, 143–44 (1962) (plurality opinion) (noting in dicta that “it may be assumed that even in a jail, or perhaps especially there, the relationships which the law has endowed with particularized confidentiality must continue to receive unceasing protection”); United States v. Harrelson, 754 F.2d 1153, 1169–70 (5th Cir.1985) (holding that arrestee and his wife did not have a reasonable expectation of privacy as to their conversations at a county jail, but nonetheless noting in dicta: “Nor would our observations here translate directly to attorney-client visitations, where the parties have a right to assured confidentiality and are, in the normal case, entitled to assume—and if necessary to demand—it.”).

6. Their understanding was not surprising, for at a hearing before the filing of the second amended complaint, the district court told the parties that, as it interpreted the first amended complaint, Mr. Studivant and Ms. Gennusa were alleging that the taking of the statement without a warrant was per se unreasonable under the Fourth Amendment. See D.E. 39 at 8–9.

JORDAN, Circuit Judge


https://www.gpo.gov/fdsys/pkg/USCOURTS-ca11-12-13871/pdf/USCOURTS-ca11-12-13871-0.pdf
http://caselaw.findlaw.com/us-11th-circuit/1662877.html

16% of State Criminal Justice Commission From St. Johns County

Controversial three-term incumbent St. Johns County Sheriff DAVID SHOAR, under FBI investigation, touches St. Augustine Beach Police Chief ROBERT HARDWICK as SAPD Chief Loran Lueders looks on -- SHOAR and HARDWICK both now serve on the Florida Criminal Justiee Standards and Training Commission, along with SHOAR henchman WILLIAM HARRISS, ex-City Manager of the City of St. Augustine.
(Photo credit: St. Augustine Record)


Three of nineteen members -- 15.7% -- of the Florida Criminal Justice Standards and Training Commission are from St. Johns County.

That's far more influence over criminal justice standards and training than any other county in Florida.

Wonder why?

The three local appointees are Sheriff DAVID BERNARD SHOAR f/k/a "HOAR," his Sheriff's Department henchman, former St. Augustine City Manager WILLIAM BARRY HARRIS a/k/a "WILL HARASS," and St. Augustine Beach Police Chief ROBERT HARDWICK, who once e-mailed SHOAR in 2013, "that's why I love you" (over SHOAR's speaking to a gathering of FBI Academy graduates).

All three are appointees of Governor RICHARD LYNN SCOTT.

As I previously reported, HARRISS is serving illegally, as a supposed "citizen" representative, when he works for the Sheriff.

Read the list of appointees here.



Photo credits: J.D. Pleasant; Thomas Nast/Daniel Somerson; J.D. Pleasant/photoshop; J.D. Pleasant/Daniel Somerson/The New York Times/photoshop

Gov. SCOTT Once Targeted Mosquito Control Boards: TAMPA BAY TIMES

Gov. Scott once took aim at mosquito control boards as needless 'tax burden'
Steve BousquetSteve Bousquet, Times/Herald Tallahassee Bureau
Monday, August 8, 2016 10:55am

Florida Gov. Rick Scott talks to reporters during a news conference at the Wynwood Community Service Center on Aug. 4 in Miami. On Sunday, he told NBC's Meet the Press that Florida had "very good" mosquito boards. In 2012, however, his administration considered them a tax burden and sought to eliminate them. That effort vanished after a review of the boards was conducted by budget officials. [AP Photo | Alan Diaz]

TALLAHASSEE — In his fight against the Zika virus, Gov. Rick Scott's strongest allies are county mosquito control boards, the "boots on the ground" stretching from Key West to Pasco County to Panama City.

But Scott once targeted them for possible extinction, calling the local mosquito fighters a major "tax burden" of dubious benefit to taxpayers.

The shift in philosophy shows the evolution of a leader who rode to power on a wave of tea party revulsion of government and then learned the details of governing on the fly.

At Zika roundtable forums around the state, Scott makes sure local mosquito officials have seats at the table -- as they did in Panama City last week where he described them as "really quality people, all over the state."

"A lot of it is boots on the ground," Scott said.

Four years ago, after Scott wiped out thousands of regulations that he said stifled job creation, he demanded a review of 1,600 special districts to ensure that they "operate in a transparent manner and be fiscally accountable in order to safeguard the public interest."

"Though many may not realize it," Scott said at the time, "some of Florida's greatest tax burden on families and businesses can be found among the $15.4 billion in revenue taken in by the state's special taxing districts."

Scott's executive order of Jan. 11, 2012 directed his budget experts to conduct a "deliberate and thorough review" of the single-purpose districts that levy property taxes to pay for specific services such as fire protection, flood control, health care, street lights and sidewalks.

In much of Florida, mosquito control is a function of county government, including Miami-Dade, Broward, Pinellas and Hillsborough. A property tax to pay for it appears separately on taxpayers' bills.

But 18 cities and counties, including Pasco, the Florida Keys, Brevard, Citrus and Sarasota have special mosquito control programs. Most are independent taxing districts, mini-governments run by elected commissioners who levy property taxes to control mosquito breeding.

Statewide, the 18 districts collected $58 million in taxes in the 2011 fiscal year.

Scott's order sent shock waves through an obscure layer of local government that had grown accustomed to being roundly ignored.

"You couldn't call it friendly to special districts," said Terry Lewis, a lobbyist for the districts. "The governor was asking, 'Do we need them?'"

The answer turned out to be yes — and Scott's executive order quietly disappeared.

Reflecting on that decision Monday, Scott's office said of his 2012 order: "He wanted to review all special districts to ensure taxpayer dollars were being put to the best use. The mosquito special districts provide many important functions in local communities and protect Floridians against mosquito-borne diseases. We will continue to work with them to ensure they have all they need to combat Zika."

The budget expert assigned to carry out Scott's 2012 order, Jeff Woodburn, began by reviewing 18 mosquito control boards. He visited the boards to see them at work, including Pasco County, where mosquito control director Dennis Moore said Scott had the right to question his agency's mission.

"There was some concern, quite frankly, as in 'What's the agenda?'" Moore said. "But over the long run, it actually came out favorably for a lot of mosquito control programs."

Moore praised Woodburn's attention to detail: "He was very respectful," Moore said.

Six months later, Woodburn produced a 31-page report on the mosquito control boards.

It noted that the annual pay of Keys mosquito commissioners was more than $21,000 at the time, four times higher than any other district. The report also said the Keys district lowered its overall tax rate by 43 percent over a three-year period, more than any other district.

Woodburn's report concluded that mosquito control districts did not need to be evaluated again because their elected commissioners are accountable to voters.

"The district may have some inherent inefficiencies, but may also provide a more consistent mosquito control service," he wrote.

After Woodburn's report, Scott's order faded into oblivion in Tallahassee, never to be heard from again.

Now, as Zika hovers over the state, Scott is one of the mosquito districts' biggest supporters.

"We have very good mosquito boards," Scott told NBC's Meet the Press Sunday.

SHERIFF DAVID SHOAR's "ICK" FACTOR

Under FBI investigation, three-term Sheriff DAVID SHOAR f/k/a HOAR faces re-election in an illegally closed primary on August 30, 2016.

Even among Republicans, Sheriff DAVID SHOAR has worn out his welcome.

People respond:  Eww, he's a politician.

A crooked one, fully capable of lying, cheating and covering up crimes.

Embattled St. Johns County Sheriff DAVID SHOAR f/k/a "HOAR" has no principles -- he even used the National Cemetery and Memorial Day for illegal campaign activities, violating federal rules.


ILLEGAL WIRETAPPING: Controversial St. Johns County Sheriff DAVID SHOAR et pals. called it a frivolous lawsuit, but two federal courts and four federal judges ruled the Sheriff's electronic surveillance of attorneys and clients at the Sheriff's Department illegal and unconstitutional. Sheriff SHOAR is a lawbreaker, one under investigation by FBI.

HIDE AND GO SHERIFF SHOAR DOES IT AGAIN

Under FBI investigation, upon learning that Jeffrey Marcus Gray was at his "Coffee with a Cop" event at the McDonald's at World Golf Village, Sheriff DAVID SHOAR bailed out, and did not come.

What a coward.

This is not the first time that SHOAR refused to answer questions. It's time for him to go.

Do readers really want more puppy stories?: Falls Church (Va.) News-Press Editorial

Editorial: On Newspapers: ‘Content is King’
FALLS CHURCH NEWS-PRESS
AUGUST 10, 2016 6:22 PM1 COMMENT
Social commentator and humorist John Oliver struck a nerve on his HBO weekly show, Last Week Tonight, on Sunday night, devoting a full 19-minute segment to a starkly precise commentary on the demise of the U.S. newspaper industry, spiced as the best conveyances of such harsh realities often are, with funny stuff.

While the segment went “viral,” especially among journalists, newspapermen and their admirers, the fallout drew Falls Church’s own David Chavern into the fray, and not, as we see it, in a good way. Chavern served a commendable term on the Falls Church City Council from 2004-2008 as an insightful advocate of quality education and commercial development. But the same cannot be said about his “day job” efforts as the COO of the U.S. Chamber of Commerce (and its redoubled but failed, thankfully, effort to target now vice-presidential candidate Tim Kaine for defeat in his U.S. Senate election in 2012) and now as CEO of the Arlington-based Newspaper Association of America.

Chavern crafted a grumpy denunciation of Oliver’s effort, as the Washington Post’s Margaret Sullivan noted, accusing Oliver of “petty insults and stating the obvious,” probably at the behest of some of his organization’s more powerful members, the likes of Sam Zell, owner of the Tribune company, one of those non-newspaper-based corporate owners skewered by Oliver.

The Post’s Kathleen Parker, keeping this important topic alive with a column yesterday entitled, “John Oliver’s Paean to Newspapers,” noted that Oliver included a video of Zell speaking to the staff of his newly-acquired Orlando Sentinel in 2008. Zell told the newspaper staff he wanted to increase revenues by “giving readers what they want,” and when someone objected saying, “What readers want are puppy dogs,” Zell is shown blowing up, calling the comment “journalistic arrogance,” ranting, “Hopefully we get to the point where our revenue is so significant that we can do puppies and Iraq. F**k you!”

But Sullivan wrote, “What Oliver did was precisely nail everything that’s been happening in the industry that Chavern represents: the shrinking staffs, the abandonment of important beats, the love of “click bait” over substance, the deadly loss of ad revenue, the truly bad ideas that have come to the surface out of desperation, the persistent failures to serve the reading public.”

Oliver “took some well-deserved shots at media’s addiction to content that generates digital traffic, particularly ever-weirder stories about cats,” Sullivan wrote, concluding that his segment was “pretty much a love letter to newspapers.”

Largely missing in the struggle to reverse the demise of newspapers as we’ve known them has been the mantra, “Content is King,” oft repeated by our owner’s late brother, Dr. Steven Benton, a founder of the Media Lab at the Massachusetts Institute of Technology.

Content – that is, real news – must not be subordinated to revenue. It has to be the other way around.

Sheriff Shoar OPPOSES BODY CAMERAS: COPS DON'T NEED TO BE WATCHED!?

Under FBI investigation, Sheriff DAVID SHOAR is diabolically opposed to body cameras for Sheriff's deputies. Wonder why?

LAWYER, DOCTORS SUED FOR POT LICENSE SCHEME -- RICO, FRAUD, MALPRACTICE

Civil RICO Defendant IAN JAMES CHRISTIANSEN, Esq.
Read Florida Bar charges here and read more here.


Civil RICO Defendant Dr. GENESTER WILSON-KING, M.D., "Medical Director"


Civil RICO Defendant Dr. DAN T. TUDOR, M.D., "Medical Director"





On August 11, 2016, Mr. and Mrs. Scott and Marsha Yandell sued twelve alleged tortfeasing wrongdoers -- five people and seven corporations -- in federal court, starting with Jacksonville, Florida lawyer IAN JAMES CHRISTIANSEN who led the scheme to sell bogus licenses conveying rights to medical marijuana.
Also sued were CHRISTIANSEN's alleged co-conspirators, including non-lawyer CHRISTOPHER RALPH, who portrayed himself as a "member of the American Bar Association," calling himself a legal administrator.
Two allegedly malfeasant physicians and one phony physician were also sued: Dr. GENESTER WILSON-KING, M.D., Dr. DAN T. TUDOR, M.D., unlicensed doctor CHAKSAU C. SHARMA, and seven corporations, IJC LAW GROUP d/b/a "HEALTH LAW SERVICES," Florida non-profit corporation CTIC, INC., CTI OF FLORIDA, INC. d/b/a CANNABANOID THERAPY INSTITUTE OF FLORIDA, PATIENT SOLUTIIONS, LLC and FLORIDA CENTER FOR INTEGRATIVE HEALTH, INC.
The lawsuit is filed under federal racketeer-influenced and corruption law (RICO) and state fraud and legal malpractice law.
For $799, the alleged racketeering schemers gave the Yandells and hundreds of Florida residents a fraudulent purported legal document invoking the "medical necessity" doctrine, as if a lawyers' and doctors formulaic language on a laminated card could somehow overcome Florida criminal law.
The Yandells were singled out for prosecution by Sheriff DAVID SHOAR f/k/a "HOAR" and State's Attorney Ralph Joseph Larizza.
Their reliance on the defendants left the Yandells "homeless, broke convicted felons," forced to move to Oregon by the devastating effect of arrests, SWAT invasions of their home, destruction of their property, cutoff of power by JEA.
The Yandells agreed to probation before Circuit Court Judge J. Michael Traynor, after the SHOAR/LARIZZA case against them fizzled.
The initial lawsuit is pending before U.S. District Court Magistrate Judge Monte C. Richardson, but no Article III judges was listed on the lawsuit, filed by Jacksonville attorney Andrew Bondarud.
No word on whether or when Sheriff DAVID SHOAR will be sued for civil rights violations perpetrated against the Yandells.

Discriminatory SAB political sign ordinance GONE

Gone with the wind is the oligarchy's anti-political sign ordinance in St. Augustine Beach, Florida.

No mention of it in the City Manager's August 1, 2016 letter to candidates on the Supervisor of Elections website.

Ten years ago, I first raised the concern that the SAB sign ordinance was unconstitutional, violating the First Amendment, treating incumbents to a tiny time period when yard signs were legal. Thanks to City Attorney James Patrick Wilson and Commissioners for righting this wrong and re-writing this dumb 'ole ordinance. Another victory.

County dropping beach parking meter scheme?

County never answered my question about whether it could legally discriminate against non-residents in parking charges, without violating the Constitution's privileges and immunities clause and dormant commerce clause.  Now, we know:  without answering the question, controversial County Administrator MICHAEL DAVID WANCHICK is dropping the oyster and leaving the wharf.

St. Johns County Administrator: Beach parking plan comes up short
Posted: August 10, 2016 - 10:39pm | Updated: August 11, 2016 - 6:39am

By JAKE MARTIN
jake.martin@staugustine.com
St. Johns County commissioners on Tuesday will hear a follow-up report on proposed changes to beach parking fees that County Administrator Michael Wanchick says come up short of addressing the problems they were meant to fix.

The commission at its July 26 meeting voted 4-1 to move forward with a plan to start charging for off-beach parking and to increase on-beach parking fees — with caveats that county residents wouldn’t pay more and that people who are more than 70 years old and/or veterans would get a discount regardless of where they live. Commissioner Bill McClure voted against the motion.

Wanchick told The Record on Wednesday the initial purpose of implementing a parking plan was to generate funding for an ongoing shortfall in the beach services budget.

“We walked in with a recommendation from the consultant that would have solved the current and, really, ongoing deficit in beach services,” he said. “The program that the board asked us to evaluate at that meeting doesn’t deliver anywhere near that much revenue. It doesn’t solve the deficit. It’s considerably short.”

According to county documents, the county’s General Fund has subsidized its Beach Services Fund by nearly $4 million, cumulatively, since 2007. Beach expenditures since 2009 have increased at a rate in excess of 10 percent annually. Meanwhile, revenues — principally from on-beach parking fees — have declined.

County consultant Public Financial Management had unveiled a plan to increase rates for both off-beach and on-beach parking at St. Johns County lots — for all beachgoers — that would have brought in an estimated $1.6 million. According to Wanchick, the plan supported by the commission would only generate a little over $200,000.

He said the deficit in beach services is projected to be $866,000 for the upcoming fiscal year alone and that what was originally proposed by the consultant would not only have solved the deficit but provided additional revenue for improvements along the beaches.

Tuesday, commissioners can make a determination whether they want to modify how they would like to move forward or whether they want to pursue changes at all.

“The challenge there is you’re putting together a program to implement a solution, but it doesn’t solve the problem,” Wanchick said. “You’re putting a potentially unpopular program in place and not generating the revenues that you had hoped to generate. That’s really going to be the discussion they’ve got to have.”

In St. Johns County, residents and non-residents currently pay a fee for on-beach parking at nine access points. Off-beach parking at the 13 county-operated lots, which provide a total of 1,056 spaces, along with surrounding roadsides, is provided free.

Richard Goldman, president and CEO of the St. Augustine, Ponte Vedra & the Beaches Visitors and Convention Bureau, said he wouldn’t expect too big an impact on tourism if the proposed changes to off-beach parking were implemented. He said visitors, particularly those coming from outside the county, generally expect to pay for beach parking.

But there are more issues than just the numbers.

At the county’s July 26 meeting, St. Augustine Beach Commissioner Andrea Samuels voiced concern about the plan causing more cars to park in neighborhoods and the need for more parking enforcement as a result.

At the Beach Commission’s Aug. 1 meeting, several ideas circulated relating to the county’s plans to charge for parking, including at the county pier in St. Augustine Beach.

During a discussion on D Street parking east of A1A Beach Boulevard, commissioners supported having City Attorney Jim Wilson and staff gather information and bring back a proposal on residential parking permits. The city had already prohibited parking on that section of D Street after people complained about issues with visitors parking on the right of way.

Commissioners talked about parking needs in general and more about the county’s parking study, at which point Samuels brought up that the county’s consultant for the parking plan did not reach out to St. Augustine Beach in the process.

St. Augustine Beach Mayor Rich O’Brien said he sat down with county administration Wednesday morning to discuss the beach parking situation and improving communications between the two governments.

O’Brien said his understanding from the meeting was the county’s study was a preliminary one, exploring economic feasibility only, and that St. Augustine Beach would have more input as the process plays out.

“I did discuss with them that, as the discussions go on, we would like to be a part of that,” he said. “They probably should have let us know, but they said they did plan to include us in the next phases.”

O’Brien said his concerns included being fair to city and county residents in terms of charging for parking and the effect any changes might have on parking in surrounding residential areas.

“One hundred percent of the visitors I’ve talked to expect to pay for parking at the pier, and they’re shocked there’s not a charge for parking,” he said. “To the extent that people will seek out other spaces that are free, I think that’s human nature sometimes.”

He said the permitting system the city attorney is looking into could move forward with or without changes to the beach parking fee schedule.

“It’s more of a system where the property owners themselves could park in the right of way, and, this is important, in an approved and improved parking spot,” O’Brien said.

He said, for example, someone could apply to the city to improve a spot in front of their home where they could park an extra car or use it to their discretion for guests.

“I think that’s something that could possibly move along, but we would have to have a comprehensive plan to do that,” he said. “It’s still in its infancy.”

Wanchick said many of the issues that have been raised, such as how charging for beach parking might affect farmers markets, concerts and other business considerations, will have to be worked out in the coming months.

“This has always been a phased process,” he said.

Implementation of a new beach parking fee schedule could start in early 2017.

COMMENTS
Thomas Francis Reynolds 08/11/16 - 11:28 am 64 No such thing as a free parking
There is no such thing as a free ride or a free lunch or free parking. Somebody is paying ! In this case of Beach Parking, it is the St John County Residents who are PAYING. When everybody splits the cost it makes it fairer for all who use the service(user fees). As it stands now just the St Johns County Residents are paying, even the ones who don't use the Beach. I am tired of paying for the Tourist and I'll bet my fellow residents are to. Of course, I am a Conservative and the Elected people running the County and Cities in St Johns County are not. I don't know what they are, my guess, Give Away Artists.

The County Commissioners, Jeb Smith, James Johns, Rachel Bennett, John Jay Morris and Bill McClure just recently refused to raise the Hotel Bed Tax one point. Giving those well to do Tourist a break. But those Sweethearts/Commissioners just raised the bus Fare on the Disabled and the Retirees who are NOT getting an increase (COLA) on their Social Security checks. Plus the working poor folks get to pay more to take the bus to work. Great work County Commissioners ! Some more of that "Living up to the DUH" right here in St Johns County Floor a DUH !

Now getting back to Beach Parking. It is rather simple. Just not here ST Johns County Government, County Administrator Michael "Wanchuckles" Wanchick is in charge. Discounted Passes for the Residents who live here and use the Beach. FULL PRICE FOR THE PEOPLE WHO DO NOT LIVE HERE and want to use OUR BEAUTIFUL BEACHES !

...........St Johns County Off Beach Parking Rates......................

County Seniors and Veterans .............. $30.00 a year
County Students....................................$50.00 a year
County Residents..................................$75.00 a year

Non-County Residents..........................$ 250.00 a year
Daily Visitors between 8 am and 8 pm.. $ 1.00 an hour

................On Beach Rates MUCH HIGHER ..........................

Now County Commissioners Morris and Bennett want FREE parking just raise the County Sales tax 1%. Morris and Bennett s answer to everything is raise the Sales Tax. But not the Impact/Developers Fees, H E double hockey sticks NOoooooo !

Now St Augustine Beach Parking lots should use the same off Beach Parking Rates as the County. When it comes to the residents neighborhoods put Parking Meters in everywhere. Then issue an affixed sticker with proof of Residency for $5.00 a year. Keep it SIMPLE BABY ! PAY YOUR WAY !

Now King Rich e Rich O'Brien and Queen Andrea Angry Samuels, two City Beach Commissioners, are doing "THE BIG SHOW" because it is an Election year. They are pretending that the Beach Parking problems have just started. HELLO YOUR MAJESTIES..........it has been going on for the many years you two have been in office(way to long). Yes King Rich e Rich O'Brien and Queen Andrea Angry Samuels we know you have been busy taking care of yourselves and are doing a GREAT JOB at that. But as CRAZY as this will seem YOUR MAJESTIES, you two should have been working on this BEACH PARKING YEARS AGO FOR THE BEACH CITY RESIDENTS !

So King Rich e Rich O'Brien and Queen Andrea Angry Samuels.... YOU OWN IT !

Dr. David Kimball Wiles, Ed.D., R.I.P.

David Wiles was the conscience of our community on planning and zoning, developer corruption of our government, and the need to preserve and protect what we love in St. Augustine. His cogent analysis and passion for detail and nuance helped raise the quality of knowledge and debate in St. Johns County. We shall all miss him greatly.



Dr. David Kimball Wiles, 74, Crescent Beach, passed away too soon, Aug. 7, 2016. Born in Tuscaloosa, Alabama, to Hilda Long Wiles and Dr. Kimball Wiles, siblings included Jon Wiles, Wendy Velez and Kim Wiles Bond.
His wife of 52 years, Marilyn McCall Wiles, sons, Corey (Jodi) and Matthew (Jenny), grandchildren, Seth, Zachary, Owen, Maya and Zane, and family Aimee, Michael, Robin, William, Bryan, Kay, Dale and Beth miss his contagious laughter and joy of life.
David grew up in Gainesville, Florida, graduating from PK Yonge. He received his undergraduate degree from Florida State University and Doctorate of Education from the University of Florida. During his career, David was Professor of Educational Administration and Public Policy at Ontario Institute for Studies in Education, Virginia Tech, Miami University, University of North Florida, Professor Emeritus State at University of New York Albany and visiting professor at Valdosta State University.
United States Army First Lieutenant David Wiles served our country honorably while stationed in Korea. As a patriot, educational champion, outspoken environmental advocate serving as Commissioner, Soil and Water Conservation Board; former member Planning Zoning Agency; Charter Member and President, South Anastasia Communities Association; and Friends of Matanzas, he worked tirelessly to help enhance our quality of life.
He lived life to the fullest watching sunrises and sunsets. He deeply loved his family and friends. He won the 2016 Wiles Bocce Ball Invitational trophy!
David was the love of Marilyn's life and is truly missed by many.
A celebration of David will be held Sunday, Sept. 4, 2016.
Family requests donations in Honor of David Wiles sent to Matanzas Riverkeeper, 291 Cubbedge Road, St. Augustine, FL 32080.

- See more at: http://www.legacy.com/obituaries/staugustine/obituary.aspx?n=david-kimball-wiles&pid=181049566#sthash.FMsOTIpu.dpuf">http://www.legacy.com/obituaries/staugustine/obituary.aspx?n=david-kimball-wiles&pid=181049566#sthash.FMsOTIpu.dpuf

CORRUPT SHERIFF SHOAR ON THE ROPES: RECORD

Sheriff's race: Shoar's experience vs. Maynard's call for change
Posted: August 11, 2016 - 11:19pm

By JARED KEEVER
jared.keever@staugustine.com
When Republican voters go to the polls for the Aug. 30 primary, they will likely be choosing the next Sheriff for St. Johns County, and the two candidates they have to choose from could hardly be more different.

While two write-in candidates have qualified for the upcoming general election — thus closing the primary to Republican voters — their voices have not been heard, and they haven’t raised any money. That leaves voters with a choice between three-term incumbent David Shoar and his challenger Debra Maynard, a former deputy who hasn’t worked in law enforcement since she was fired from the Sheriff’s Office in 2012 after serving less than five years.

Shoar boasts 35 years of experience in law enforcement, which he began as a patrolman in the St. Augustine Police Department where he eventually served as chief before he was elected sheriff in 2004. Maynard, on the other hand, has a more varied background and spent a number of her earlier years working in education.

Shoar, who has raised $245,000, is running primarily on his record. Maynard, with less than $10,000, is running a grassroots campaign — conducted largely through social media and community get-togethers — that involves thinly veiled attacks on Shoar. That includes allegations of corruption and charges that the agency does a poor job of going after deputies involved in domestic violence as well as oblique references to the Michelle O’Connell death investigation that has plagued the Sheriff’s Office for years.

In interviews with The Record since she announced her candidacy, Maynard has discussed a number of those topics as well as reasons why she thinks she was fired. She has said on the campaign trail and first told The Record she was fired because Shoar asked her to say she did not remember something and that she refused the request because doing so would have been tantamount to lying. The event, she said, had to do with a complaint she lodged about the questioning of a suspect who she felt had his rights violated.

But records from the Sheriff’s Office indicate the individual was someone whom Maynard considers family, and she was terminated after an internal affairs investigation found that she involved herself in a criminal investigation concerning the young man.

Maynard told The Record last month that she didn’t feel the internal affairs investigation was “complete” — that certain witnesses and her supervisor were not interviewed — and suggested she was targeted for termination.

“I think if you want to direct an outcome, you direct it,” she said. “You don’t interview everybody to get the outcome you want.”

Asked why she may have been targeted, Maynard speculated that it could have been because of answers she provided on workplace “climate surveys” while she was a deputy. But those surveys — three of which were provided to The Record after a public records request — show few signs of any problems.

The short surveys consist of a series of questions about harassment and discrimination in the workplace. In her first survey, dated February 2008, Maynard did answer that she had seen behavior inconsistent with policies and she was the victim of discrimination or harassment.

A handwritten note at the bottom reads, “Issues can be discussed in person — However, issues were confronted at the time of occurrences.” Her two subsequent surveys — one dated February 2009 and another dated March 2011 — indicate no problems.

While candidate forums and joint interviews between the candidates have been mostly cordial, there remains in Maynard’s campaign an undercurrent of seeming resentment that continues to churn up memories of the O’Connell case and the topics swirling around it.

O’Connell died of a gunshot wound through her mouth on Sept. 2, 2010, in the home of her boyfriend, Jeremy Banks, a deputy with the Sheriff’s Office. The gun used was Banks’ service weapon.

The Sheriff’s Office led the initial investigation — which Shoar has since admitted could have been handled better — and the death was eventually ruled a suicide. Some of O’Connell’s family members have said she wouldn’t have killed herself, and some have questioned the integrity of the investigation and believe Banks is responsible, though he has denied any wrongdoing. He still works for the Sheriff’s Office.

Maynard, who was among the first deputies on the scene the night O’Connell died, has said she doesn’t believe the death was a suicide and has served as a source for a 2013 New York Times story about the case and a subsequent PBS Frontline documentary, though the Sheriff’s Office has no records that indicate she ever expressed concern about the investigation prior to her being fired.

While Maynard has said that she wouldn’t use O’Connell’s death to bolster her campaign, it seems to be a claim she has had a hard time making good on.

In her most recent campaign video, shared on social media, Maynard, tongue in cheek, lists 10 reasons why people should not vote for her.

“If you think self investigations are OK, don’t vote for me,” she says, following it up with: “If you think guns recoil forward, don’t vote for me.”

The latter is a direct reference to a theory touted in the O’Connell case as to how the young woman may have received a small cut above her eye. And in listing her reasons for running in her candidate survey for The Record’s Primarily Speaking (due out Sunday), Maynard says the Sheriff’s Office is not a place for “cronies or corruption, domestic violence or cover-ups.”

Domestic violence, particularly officer involved domestic violence, has been a central topic to Maynard’s campaign, and it also figured centrally in The Times and Frontline pieces.

Maynard claims such cases are not properly handled and has in her possession paperwork from three cases that she says were not reported to the Florida Department of Law Enforcement’s Criminal Justice Standards and Training Commission as they should have been.

Of those, the Sheriff’s Office says two of them did not meet the criteria requiring them to be reported to FDLE. In both instances — one from 2007 and one from 2013 — the cases were handed over to the 7th Judicial Circuit State Attorney’s Office and prosecutors did not pursue charges.

The third — a 2009 case from the Jacksonville Sheriff’s Office involving two St. Johns deputies who were involved in a relationship — is currently under investigation by the standards and training commission. The Sheriff’s Office said both deputies — only one of whom still works for the department — were disciplined at the time of the incident even though no primary aggressor was identified and a criminal case was not pursued against either deputy in Duval County. That it wasn’t reported to FDLE initially was an oversight discovered during a review of records, officials said.

Shoar maintains that his department is tough on deputies who commit domestic violence. He has cited a handful of cases to support the claim, including a recent one in which a corrections deputy was fired after he was arrested on a single charge of domestic battery in June.

“We’re tuned up on holding our people accountable,” he said in a July interview.

Other issues the two candidates part ways most significantly over are the personal use of patrol cars and the use of body cameras for deputies.

Maynard told The Record’s editorial board (in an interview that can be viewed at staugustine.com) that she believes deputies who live outside of the county should leave vehicles at the county line when they are off duty. Shoar said the percentage of deputies who don’t live in the county — about 12 percent — is so small that it would not make much difference in terms of cost savings and there are a number of benefits to the use of assigned cars.

As for body cameras, Shoar said in an Aug. 8 public forum, hosted by the League of Women Voters, that he remains adamantly opposed to their use, saying he believes the push for such devices is part of a “false narrative that law enforcement is the problem and we need to be watched.”

“I reject that and I find it patently offensive,” he said.

In a position paper on the subject, Shoar cites a number of concerns he has with the use of cameras including that they can only “capture moments in time and rarely capture an entire incident” and that there are significant cost, data storage and public records issues that would need to be addressed.

Maynard had answers for a number of those concerns at the forum and argued that the benefits of cameras outweigh the drawbacks.

She cited a University of South Florida study that found use of force incidents dropped 53 percent and that citizen complaints dropped 65 percent in a study group of 46 officers with the Orlando Police Department who were outfitted with cameras.

U.S. Rep. CORINNE BROWN, Facing 350 Years, Delays Trial

How many years will St. Johns County Sheriff DAVID SHOAR F/K/A "HOAR" face once he's indicted. SHOAR opposes body cameras. As New Orleans DA Jim Garrison said, "What do you expect from a pig but a grunt?"

U.S. Rep. Corrine Brown changing lawyers; preparations for fraud trial pushed back
By Steve Patterson Tue, Aug 9, 2016 @ 6:14 am | updated Tue, Aug 9, 2016 @ 8:02 pm

Preparations for U.S. Rep. Corrine Brown’s fraud trial were pushed back another week Tuesday as she moved toward signing up a new attorney.

U.S. Magistrate James R. Klindt told Brown last month that any counsel changes needed to be made before a hearing he had scheduled for Tuesday afternoon, so her team would be ready for a planned October trial.

But during that hearing, Tampa-based defense attorney Greg Kehoe told Klindt he was still working out details about replacing her previous counsel, Bill Sheppard and his firm. Kehoe didn’t elaborate, saying “there are just certain things that have to be addresed internally.”

Brown’s chief of staff and co-defendant, Ronnie Simmons, is also switching attorneys and expects to have new counsel by Friday, Klindt was told.

Klindt set another hearing for the coming Tuesday afternoon, but said that could be canceled if attorneys have filed papers that lock them into representing Brown and Simmons long-term.

The judge didn’t change the scheduled October start of the trial, but said that could change once the attorneys are settled. The attorney who represented Simmons at the hearing, Daniel Smith, said afterward it would be “unrealistic” to try to keep the current schedule.

Smith said he thought springtime might be a fair time frame for the trial, adding new attorneys would have to study “voluminous” stacks of records to get up to speed.

Prosecutors last month gave the defense more than 77,000 pages of documents, all potential evidence that investigators assembled to make a case against the 12-term Democratic congresswoman, a political powerhouse facing two challengers in the Aug. 30 Democratic primary. As they did at Brown’s first court appearance, a few supporters carried signs outside the federal courthouse denouncing the prosecution as a witch hunt.

Brown and Simmons were charged last month in a 24-count indictment that accuses both of enriching themselves by misusing their government positions.

Most of the case revolves around money collected for a Virginia organization, One Door for Education, that Brown championed as a charity trying to help young people. One Door was never recognized by the IRS as a charity.

The indictment claimed a lot of the roughly $800,000 donated to the organization was used like a slush fund that benefited Brown, Simmons and One Door’s president, Carla Wiley.

Wiley pleaded guilty to conspiracy to commit wire fraud in March and is cooperating with prosecutors.

Brown and Simmons have pleaded not guilty to charges that include mail and wire fraud, conspiracy and scheming to conceal material facts, a lawyerly term for lying on financial disclosure reports they were required to file.

If they’re convicted of all charges, both Brown and Simmons could each face prison sentences exceeding 350 years.

Steve Patterson: (904) 359-4263

GEORGE LAREAU FOR COURT CLERK!

Editorial: Lareau paid his dues for Clerk of Courts
Posted: August 9, 2016 - 9:52pm | Updated: August 10, 2016 - 12:01am

The Clerk of Courts contest has an added element, around which the race seems to be gravitating.

Longtime clerk Cheryl Strickland left office last year without completing her term. She appointed her assistant clerk, George Lareau, to act as interim clerk, ostensibly until the office was up for election.

However, Gov. Rick Scott intervened, appointing local attorney Hunter Conrad to the interim clerk spot. There was nothing illegal about the move. Neither was it all that unexpected, politics being what they are in Tallahassee.

Hold onto that thought for a moment.

During our interview with the candidates (which you can watch in its entirety on staugustine.com) both outlined accomplishments during their short stints at the head of the Clerk’s office, and where they wanted to see it heading.

Conrad had little fodder for criticizing the current clerk’s office. Strickland ran a tight ship. We recall more commendations than complaints over the past several years. So Conrad had little substantive to with which to attack. Conversely Lareau had commensurately little to take credit for. Again, neither had been in office for long. So the issues they had were more nit-picky than game-changing.

For instance, both want to reopen annexes in Julington Creek and Ponte Vedra Beach for traffic fines and passports. These were closed during the recession years. Lareau will use clerk’s staff who are paid by the state, not county taxpayers. Conrad wants to have staff from the Tax Collector’s office work the annexes rather than his own. There is a question as to legality of that relationship under state statute. It may be a gray area. But, either way, Tax Collector Dennis Hollingsworth has a Constitutional directive to collect taxes and the Clerk’s is tasked by law with collecting fines. If mixing the two isn’t illegal, it certainly seems irregular.

Back to Tallahassee politics. Conrad is a bright and articulate young man. But we have to wonder, honestly, who spends four years in grad school and thousand of dollars to carve out a career as an attorney in one of the county’s more successful law firms, then wakes up one morning and thinks “I’d sure like to be a court clerk?” It’s possible but plausible?

While Conrad touts his appointment by Gov. Scott, from where we sit, it taints more than recommends. It is no secret that Scott has used his appointment process almost brutally to advance private and political agendas throughout his years in office.

Scott has single-handedly transformed the Department of Environmental Protection into an oxymoron — and is positioning political allies across the state to help advance his eventual U.S. Senate run in 2018. So it is more the process than the candidate that begs mistrust. But we don’t see how to separate one from the other. If you can’t read between the lines in politics, you’re illiterate.

Lareau has been employed in the Clerk’s office three years longer that Conrad has been alive. He’s held several positions along the way. We find few who doubt his ability or honesty. He’s endorsed by both Strickland and her predecessor, Bud Markel.

The one area of the Clerk’s responsibility we see as lacking is its hands-on aggressiveness in oversight of county finances and compliance.

We recommend George Lareau for Clerk of Courts and challenge him to be both vigilant and transparent in that duty.

It’s a responsibility absolutely necessary as a check and balance on how our tax dollars are spent. We’ll watch this carefully whomever the voters return to office.

CORRUPT SHERIFF SHOAR AGAINST BODY CAMERAS

Yes, this crooked St. Johns County Sheriff, Sheriff DAVID SHOAR f/k/a "HOAR" is against body cameras for police officers. Say, "YOU'RE FIRED." Help elect Debra Maynard St. Johns County Sheriff and vote on or before August 30 2016.

CHECK IT OUT -- 69:00 -- HE IS AGAINST ACCOUNTABILITY FOR POLICE. ENOUGH.

SHOAR says, "I'm opposed to body cameras for cameras (sic) …. I don't like the genesis (sic) on (sic) which (sic) we are even having the discussion …. certain elements in our society who I think are advancing a false narrative that law enforcement is the problem and we need to be watched. I reject that and I find it patently offensive…. Cameras are a brief moments in time in a three dimensional world…. It's bad policy. It's been sold to us that we need to be watched and I reject that patently. Forgot about the cost of it…. all of the untended consequences, like for instance, like for instance…. finally, use of force and violence is a scry thing even when it wears a uniform…. rare event. …. We're going to use everything we can to win that fight….


I'M SUPPORTING DEBRA MAYNARD FOR ST. JOHNS COUNTY SHERIFF.
http://stjohnscountyfl.swagit.com/play/08032016-1208

SHERIFF DUCKS OFFICER-INVOLVED DOMESTIC VIOLENCE QUESTIONS

Check out Debra Maynard at 64:00 and maladroit misogynist Sheriff DAVID SHOAR f/k/a "HOAR."

Here:

http://stjohnscountyfl.swagit.com/play/08032016-1208

SHERIFF SHOAR OMITS PALATKA PD FROM RESUME

WHY?

HE DID IT AGAIN AT LEAGUE OF WOMEN VOTERS' FORUM WEDNESDAY, AUGUST 3, 2016.

SHERIFF DAVID SHOAR VIOLATING FEDERAL LAW BY POSING FOR ELECTION CAMPAIGN PHOTO IN ST. AUGUSTINE NATIONAL CENETERY, MEMORIAL DAY 2016



St. Johns County Sheriff DAVID SHOAR's polished published resume omits his entire time of service at the Palatka Police Department.

In effect, Sheriff SHOAR's polished published resume is his job application for re-election as Sheriff, and it omits his Palatka service.

In fact, it falsely states SHOAR went to work in St. Augustine in 1981.

That's false.

SHOAR He did not go to work for St. Augustine in 1982.

While paperwork does not reflect it, some witnesses heard SHOAR say that he was fired in 1981 after a few months as a dispatcher and a patrolman in Palatka.

Records prove beyond cavil that controversial Sheriff DAVID SHOAR, then known as "DAVID HOAR," worked for four months at Palatka Police Department as a dispatcher and patrolman before he was terminated in December 1981, at age 20.

Employment records in Palatka show that Patrolman DAVID HOAR resigned in November 1981 to accept a job with the St. Augustine Police.

HOAR's St. Augustine application gives a two word answer on why he was terminated from Palatka: "Another job."

Buy HOAR did not supply for the St. Augustine position until January 15, 1982.

So HOAR claimed to have resigned from Palatka P.D. in 1981 to accept a job that he did not even apply for until 1982.

And HOAR claimed on his St. Augustine job application that he had never before applied to "any public safety agency, police or fire department prior to this."

Other than the Palatka P.D. job, the only other jobs HOAR had ever held were work as a waiter at a Friendly Ice Cream Store in Springfild, Massachusetts and work in shipping and receiving for Deltona Corporation here in St. Augustine, Florida, giving "school" as the reason for his termination.

On his St. Augustine Police Department application, Officer HOAR claimed to consume only one six pack of beer per week, and never to have tried any drugs within 12 months of applying.

HOAR spelled his middle name as "BERNERD," when other documents state that it is "BERNARD."

HOAR's St. Augustine Police application was sworn to under oath before a notary.

Any material misrepresentations would have been grounds for termination and could still be grounds for revocation of his certification by the Florida Criminal Justice and Standards Commission, to which Governor RICHARD LYNN SCOTT has appointed by Sheriff DAVID SHOAR and his ex-boss and current henchmen, former St. Augustine City Manager WILLIAM BARRY HARRIS.



Personal
Bio - David B. Shoar, Sheriff
 Born October 28, 1961 in Springfield, Massachusetts.
 Married on May 2, 1987 to the former Laura Giannotta.
 Father of Emily Elizabeth and Matthew Lawrence.
 Member of St. Anastasia Catholic Church, St. Augustine, Florida.
Professional
 President and Valedictorian of Police Academy Class, 1981.
 Patrol Officer, St. Augustine Police Department, 1981-1991.
 Sergeant, St. Augustine Police Department, 1991-1997 (road patrol & records/information
management).
 Administrative Services Commander, St. Augustine Police Department, 1997-1998.
 Operations Commander, St. Augustine Police Department, 1998-2000.
 Chief of Police, St. Augustine Police Department, 2000-2004.
 Elected Sheriff of St. Johns County Florida, 2004.
 Re-elected Sheriff in 2008 (unopposed).
 Re-elected Sheriff in 2012 (unopposed).
 Graduate of the 193rd session of the prestigious FBI National Academy at Quantico, Virginia,
1998.
 Graduate of the 46th session of the prestigious FBI Law Enforcement Executive Development
Seminar (LEEDS) at Quantico, Virginia, 2003.
 Graduate of the 35th session of the Chief Executive Seminar (CES) sponsored by the Florida
Criminal Justice Executive Institute, 2004.
 Attended numerous professional/police related schools since 1980/1981.
Civilian Education
 Graduated Cathedral High School, Springfield, Massachusetts, 1979.
 Graduated Cum Laude (with honors), St. Johns River Community College (Associate of Arts
Degree), 1987.
 Graduated Summa Cum Laude (with highest honors), University of North Florida (Bachelor of
Arts Degree, Criminal Justice), 1996.
 Graduated Summa Cum Laude (with highest honors), University of North Florida (Master’s Degree, Public Administration), 2001.
 Scholastic Memberships – Gold Key National Honor Society, Phi Kappa Phi National Honor Society, Student Criminal Justice Association, and the Pre-Law Society.
 Adjunct Professor, St. Johns River Community College and Flagler College, 2002-Present.
 Awarded an Honorary Doctor of Laws Degree from Flagler College, 2005.
Military Education
 Twenty-four (24) year veteran of the Florida Army National Guard.
 Graduate of Basic Recruit Training, 1979.
 Graduate
 Graduate FL, 1988.
 Graduate
 Graduate
 Graduate
 Graduate
of Air Force Security Police Specialist School; Lackland AFB, TX, 1979.
of Florida National Guard Military Academy Officer Candidate School, Camp Blanding,
of Engineer Officer Basic Course, Ft. Leonard Wood, MO, 1990.
of the Engineer Officer Advanced Course, Ft. Leonard Wood, MO, 1999. of the Combined Arms, Services and Staff Course, Jacksonville, FL, 2001. of Warrior 2000 Leadership Seminar.
Military Awards (Not all listed)
 Good Conduct Medal
 Humanitarian Service Medal
 Southwest Asia Service Medal
 Liberation of Kuwait Medal (awarded by the Kingdom of Saudi Arabia)
 Army Commendation Medal (two times)
 Overseas Training Ribbon
 The Florida Commendation Medal
 The Meritorious Service Medal
Military Assignments and Leadership Experience
 Enlisted soldier from 1980 through 1987
 Unit Commander, 221st Explosive Ordinance Disposal Detachment, 1988
 Platoon Leader and Executive Officer, 269th Engineer Company, 1988 – 1992
 Platoon Leader, 269th Engineer Company, in Southwest Asia during Operation Desert
Shield/Storm
 Executive Officer, 269th Engineer Company, during Operation Andrew relief operations
 Staff Officer, Directorate of Engineering and Housing, Camp Blanding, FL, 1992-1995
 Unit Commander, 653rd Engineer Detachment, 1995 – 1997
 Unit Commander, 653rd Engineer Detachment, during Operation Opal relief operations
 Staff Officer, Florida Army National Guard Facility Management Office, 1997 – 1999
 Operations Officer, Florida Army National Guard Office of Plans, Operations and Military Support to Civilian Authorities, 1999 – 2001
 Law Enforcement Liaison for the Assistant Adjutant General for Army (FLANG) Joint Task Force, 1999 - 2005
 Public Information/Affairs Advisor to the Command Section of the Florida National Guard, 2001- 2002
 Provost Marshall, 53rd Infantry Brigade, Tampa, FL 2002-2003
 Public Information/Affairs Advisor to the Command Section of the Florida National Guard, 2003-
2005
 Retired in 2005 from the Florida Army National Guard after 24 years of service
Civilian Awards
 University of North Florida In-Service Academic Excellence Award, 2002
 Juvenile Justice Award, 2002
 Criminal Justice Award from the Florida Council on Crime and Delinquency (FCCD), 2005
 Establishment of the “David B. Shoar Award for Academic Achievement” at Flagler College
 Recipient of the National “America’s Most Wanted First Responder All Star” award, 2006
 Recipient of the “Top Law Enforcement of the year 2007” from the Florida statewide American
Legion
 2008 received the two most prestigious awards in St. Johns County for civic involvment, the
Catholic Charities, "Good Samaritan" Award and the Salvation Army's, "Gus Craig" award
Professional Affiliations
 Florida Sheriff's Association (served as Chairman in 2011 and elected Treasurer for 2011/2012)
 St. Johns County Juvenile Justice Council
 St. Johns County Task Force on Domestic Violence (former co-chairperson)
 University of North Florida's advisory council for the Institute of Local Government
 Northeast Florida Law Enforcement Executive's Association (past vice president and president)
 St. Augustine/St. Johns County Chamber of Commerce
 Member, Police Executive Research Forum (PERF)
 Member, International Association of Chiefs of Police, Florida FBI National Academy Associates
 Member, Florida Police Chief’s Association
 Member, Florida Council on Crime and Delinquency
 Life member, Veterans of Foreign Wars
 Member, Epic Board of Directors
 Member, St. Johns County's Law Enforcement and Private Security Council
 Member, Rotary Club of St. Augustine
 Board of Directors for the North Florida High Intensity Drug Trafficking Area (HIDTA)
 Member, National Guard Officers Association
 Member, Knights of Columbus
 Member, Masonic Lodge
 Board Member, elected to serve on the St. Johns County Chamber of Commerce Board of Directors (2006)
Miscellaneous
 Appointed in 2003 by Commissioner Tom Gallagher (State of Florida Commissioner of Agriculture and Consumer Services) to a 4-year term on the Division of Licensing Advisory Council for Private Security.
 Served on the St. Augustine Beach Police Chief selection committee, 2003
 Appointed by the Governor of Florida to serve as a Commissioner on the Florida Criminal Justice
Standards and Training Commission (2009-2010)

BOB TIS ON CRITIC OF SAB MALFEASANCE

INTERESTING Bob Tis column, ending with fear that St. Augustine Beach officials might violate government watchdog Thomas Reynolds' rights.

Bob Tis: Hot button issues make some people see red
Posted: August 8, 2016 - 7:12am | Updated: August 8, 2016 - 3:47pm

By BOB TIS
Recently I went into a mail center to send some compact discs off to my friend Woody in the Virgin Islands. I put the CDs in a box and went up to the counter. The clerk pulled out a padded envelope and explained that is what he would use for the job. I have had some problems with breakage in the past so I said I would stick with the small box.

“No,” he said. “I want you to use this.”

He was really pushing the envelope ...

That joke comes via my exceptionally goofy friend Shane. When possible, I enjoy a cup of coffee in a quiet spot with Shane. But he worries me. He has hot button issues. It seems that the same thing gets both our proverbial goats: unnecessary noise.

For me, it started years ago when I lived about 40 miles south of a major airport. It seemed like overnight the flight patterns changed and the jets were lining up over my house. I was just a kid but I watched some of the locals mount a small protest to the big airport. They said the noise from the planes was pollution and an invasion of their privacy. They somehow rallied the community to insist the flights to line up over the ocean instead of their backyards. I was impressed with their success and became an advocate for eliminating noise pollution for life.

But it is usually on a small scale. Not too long ago this guy moves in the neighborhood and he was really fastidious about his driveway. If some random debris happened to float down on the asphalt he would charge out there with the leaf blower. These insidious machines are ruining the eardrums of every ill-advised landscaper who uses them all over this country. The noise would grate on me like nails on a chalkboard. It would get all the dogs barking and just shatter any moment of nature I was trying to enjoy in the backyard.

So I did what I thought any rational retired juvenile delinquent raised on sarcasm would do. I put on my flip flops and went outside to say hi to the new guy in the neighborhood. I mentioned to him that a neighborhood ordinance had been passed against leaf blowers and I would hate to see him get on the bad side of the local homeowners group. You know, fines and such.

This was a complete fabrication, of course. There were no rules in the neighborhood. I got about a week’s reprieve from the blower and some funny looks from the neighbor. Eventually, he took it as a good-natured joke and maybe considered using his rake.

Shane, however, dabbles in a much more dangerous behavior. His pet peeve is people who leave their cars running in a parking lot and just walk off to do their business. I have sat at nice outside cafes with Shane and watched his face melt when a big diesel pickup parks nearby and rumbles while the owner walks off. This normally mild-mannered landscaper will jump up, hop in the pick-up and shut it off. I tell him that he will eventually get beat up doing this but all he can talk about is our carbon footprint.

I have seen him go up to women in cars, knock on the window and explain to them that their air conditioner doesn’t work while their car is idling. It scares me.

The best television this summer may not be on cable. They live stream and record the St. Augustine Beach Commission meetings. There is a gentleman who has some very hot button issues with the Commission and he stands up and lets them know exactly how he feels. Passionately. He charges the politicians with some serious malfeasance and demands answers. It is chilling to watch. In many ways he reminds me of Shane. I don’t necessarily disagree with him. But every time I see his buttons are pushed I worry he might wind up in jail. Or worse.

Bob Tis is a former Record reporter.

COSA: LIMITING NEIGHBORHOOD CUT-THROUGHS

St. Augustine commissioners give nod to Nelmar Terrace changes
Posted: August 8, 2016 - 11:06pm | Updated: August 9, 2016 - 10:36am
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IMITING By SHELDON GARDNER
sheldon.gardner@staugustine.com
Nelmar Terrace residents will get some help with cut-through traffic, but it’s not clear how soon that will happen.

City of St. Augustine commissioners supported on Monday a plan to limit access from May Street to two roads and make a number of other changes.

The focus of the plan is helping residents who are concerned about what they described as worsening, and dangerous, cut-through traffic as drivers avoid the May Street and San Marco Avenue intersection.

“The people that live on those streets … they’re fed up,” said Commissioner Nancy Sikes-Kline. “And the residents, they’ve had enough.”

The city’s plan is to close vehicle access from May Street to Douglas Avenue and the north side of Magnolia Avenue. Also, East San Carlos Avenue at San Marco Avenue would be closed and signal timing would be adjusted — there’s a signalized intersection there.

The city would also ask the state to add signs at State Road A1A and County Road 210 so drivers can avoid congestion by using County Road 210 instead of southbound A1A.

Changes aren’t coming immediately. City Manager John Regan plans to work with St. Johns County officials on their concerns and still has to go through state permitting.

Once the project is underway, the project would take about 90 days to go through permitting and other parts of the work, Regan said.

Also officials supported using fixes that aren't permanent, so changes can be made later if necessary.

The May Street and San Marco Avenue intersection will be reconstructed by the Florida Department of Transportation and is expected to help with traffic flow.

People packed City Hall’s commission meeting room on Monday.

Some shared stories of traffic woes — and dangers — in the community. Part of the Nelmar Terrace neighborhood is on May Street and a section north.

Nelmar Terrace resident Melinda Rakoncay showed pictures of a plant in her lawn, both before and after a vehicle mowed it down.

“You can see the double skid marks across the corner,” Rakoncay said.

She and others said traffic calming measures — like speed humps — have failed to make the neighborhood safe. People still speed and cut through.

Some voiced concern about the proposal, including Vilano Beach resident Lisa Lloyd.

She indicated that other stakeholders in the area have not had a chance to be involved, and people on the Vilano Beach side of the Vilano bridge — which leads drivers to the May Street and San Marco Avenue intersection — only recently learned of the proposal and didn’t have time to prepare for the meeting.

“You’ve heard me talk about this. You know that Vilano bridge traffic is heinous,” Lloyd said. “You know it’s a safety issue. Somebody could die on the top of the bridge, sitting and waiting for 45 minutes. ... I think it would be really nice if we could slow this down a little bit.”

Regan used data collected in Nelmar Terrace to back up the recommendation, which showed speeding and high volumes going through the area. Some information had to be re-evaluated because of an issue with an instrument.

Based on a count done by the city on May 28, the city believes that about 790 vehicles an hour go westbound on the Vilano Causeway on busy days.

About 80 to 85 vehicles turn right on Magnolia Avenue, according to a city document. About 90 vehicles per hour cut through westbound on Nelmar Avenue, and about 60 cut through eastbound.

IN OTHER BUSINESS

■ St. Augustine Commissioners discussed the latest revision of the city’s Capital Improvement Plan, which covers fiscal years 2017-21. Some commissioners suggested putting more of priority on upgrading streets.

The plan has more than $15.6 million projects slated for the next fiscal year, including $525,000 for road rehabilitation or about four miles of paving.

Also, the entire five-year plan includes $20 million in 2021 for a parking facility as a potential expense.

But a decision has not been made regarding building another parking facility — the money is in the plan in case it is recommended as part of a city mobility plan but could also be removed, said Tim Burchfield, assistant city manager.

■ Commissioners asked for more information before making a decision about the future of the Anastasia Mosquito Control District’s former headquarters at 500 Old Beach Road.

The district has moved to EOC Drive, which is near State Road 16, and district officials want to make a decision about what to do with the property.

But the city has a reverter clause on the property from St. Augustine’s sale to the mosquito district. The clause says that the property has to be used for a public purpose or the city gets it back.

Commissioners asked staff to do a title search so they have more information before making a decision.

Commissioner Leanna Freeman voiced support for the land staying in public use, and she said she wouldn’t want to simply relinquish all of the city’s interest in the property.


Thomas Francis Reynolds 08/09/16 - 06:23 am 20Did the Old City Commissioners agree ?
WOW............ the City of St Augustine Commissioners agreed on something ! Now don't go getting to excited because Regan said " Changes aren’t coming immediately. City Manager John Regan plans to work with St. Johns County officials on their concerns and still has to go through state permitting". Now Regan and St Johns County Administrator Wanchick working together is like Slow and Slower(the brother version of Dumb and Dumber). Well as far as the Vilanos or at least one Vilano, LL, LADY PLEASE ? Please don't think the word Stakeholders means STOP, it doesn't. I will repeat, the GOOD folks from Vilano knew there is only one way in and out when they moved there. You Vilanos would be better off trying to get another bridge built.

The Mosquito property is not in City of St Augustine city limits. So , it is going to the City of St Augustine Beach and will be annexed in to their City Limits. Of course as everybody knows that already. It is going to be a Park for all Residents everywhere to use. Maybe it will be a County Park, part of Ron Parker Park. Says WHO ? Says you all know WHO ! But we the people will let the Elected Officials have a big PHOTO OP on ribbon cutting day. The big Scissors are at RB s house, bring them back RB, NOW ! Of course will let you Elected Folk do a lot of slapping each other on the back aka PBS (Politician Back Slapping). So lets get moving Elected Officials or no Photo Op or PBS.....................

martystaug 08/09/16 - 07:17 am 11Squeaky wheel
So the plan is to restrict all those Vilano drivers from cutting through the Nelmar neighborhood. What about the impact to those on the other side of May Street? I have no sympathy for Vilano drivers who chose to live on the island with a single bridge within 20 miles. Especially when I see them speeding and blowing through stop signs as they cut down Magnolia Ave multiple times a day. But by restricting traffic via Douglas and Magnolia Ave (north) you only exacerbate the traffic issues on Magnolia Ave and all of the side streets south of May St. The city needs to enforce the traffic laws in these neighborhoods. Period. The police department has said that it isn't "cost efficient" to do that. Perhaps some nice fat traffic fines and tickets will remind those Vilano drivers to respect their neighbors. And the city needs to protect and serve all of us, not just Nelmar residents.