IN THE SUPREME COURT OF FLORIDA . P
CASE NO. SC12-2445 .
MATTIE LOMAX,
Petitioner,
-vs-
THE CITY OF MIAMI POLICE DEPARTMENT
ET AL.
Respondent.
BRIEF OF PETITIONER ON THE MARITS
ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
MATTIE LOMAX In Properper P.O. BOX 310464 MIAMI, FLORIDA 33231 0464 Telephone: (305) 573-0702 TABLE OF CONTENTS
PAGE TABLE OF CONTENTS...... i TABLE OF CITATIONS...... ii INTRODUCTION...... iii
STATEMENT OF THE CASE AND OF THE FACTS...... 1 SUMMARY OF THE ARGUMENT...... 3 ARGUMENT...... 6
AT COMMON LAW, MALICIOUS PROSEUTION CLAIM DOES NOT ACCRUE UNTIL UNDERLING PROCEEDING TERMINATES IN PLAINTFF'S FAVOR IN BOTH CASE'S CONCLUSION...... 14 CERTIFICATE OF SERVICE...... 15 CERTIFICATE OF COMPLIANCE...... 16
11 Continues PAGES
Section 12, Declaration ofRights, Constitution ofFlorida, F.S.A...... 8 States Constitution, Article VI, clause 2.24...... 11
Rule ofFlorida Bar, 103 So.2d 873, 875 (Fla. 1956)...... 12 Rule 1.420 (b) ofthe Florida Rules ofCivil Procedure...... 9
Florida Statute
Florida Statute 87.02...... 14
IV TABLE OF CITATIONS
CASES PAGE'S May v. Holley, 59 So.2d 636 (Fla. 1952...... 5 Sapp v. Redding, 178 So.2d 204 (1st DCA 1965)...... 8
Willingham v. City ofOrlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006)...... 9 Mailly v. Jenne, 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004...... 9
Jackson v. Navarro, 665 So. 2d 340, 342 (Fla. 4th DCA 1995)...... 9
Fla. Game & Freshwater Fish Comm'n v. Dockery, 676 So. 2d 471, 474 (Fla. 1st DCA 1996)...... 10
State v. Palm Beach County, 89 So.2d 607, 612 (Fla. 1956)...... 10
Fundingfor Criminal Justice, 639 So.2d 972, 973 (Fla. 1994)...... 10 Ray v. Mortham, 42 So.2d 1276, 1290 (Fla. 1999)...... 11 State ofFlorida v. Stepansky, 761 So.2d 1027, 1031 (Fla. 2000)...... 11 State v. Dixon, 283 So.2d 1, 23 (Fla. 1973)...... 11 Irvin v. Dowd, 359 U.S. 394, 404 (1959)...... 11
Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)...... 13 Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000)...... 17 Florida Bar Rule 3-7.7 (c)(5)...... 3 Florida Rule 3-7-7 (F) Violates Florida and Federal law...... 6
111 IN THE SUPREME COURT OF FLORIDA
CASE NO. SC02-1136
MATTIE LOMAX,
Petitioner,
-vs-
THE CITY OF MIAMI POLICE DEPARTMENT, ET AL.
Respondent.
ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
BRIEF OF PETITIONER ON THE MERITS
INTRODUCTION
This cause is before the Court on a petition for discretionary review.
References to the Record transmitted by Mattie Lomax in regards to the
Third District Court ofAppeal Record are indicated parenthetically by the letter "A" followed by the page number. All emphasis is supplied unless the contrary is indicated.
v STATEMENT OF THE CASE AND OF THE FACTS
L INTRODUCTION On August 16, 2008, Lomax was stopped by Officer Jorge Loo and the City ofMiami Police Department, Officers Upon the violation Lomax for crossing a non operating rail road tracks in which the are no vehicles running there. She was crossing the rail road track in which other persons were crossing the tracks. Officer Jorge Loo drove his City ofMiami Police car around on the other side ofthe tracks. Officer Loo, jumped out ofthe
Police vehicle and clip the hands cuffs on Lomax, stating that she was broking the law. Lomax stated to Officer Loo that other person was cross too. He stated, don't worrier about them, you just worrier about your self.
Lomax was taking to Miami Dade County Jail where she steady and the night in jail and was released the next day in favor ofLomax. Malicious prosecution claim does not accrue until underlying proceeding terminates in
Plaintiffs favor/ See Appendix A - 3.
The Street is a dead end street in which the people in this community use to cross over on the other side for going to the metro mover or just shopping in the area.
On April 17, 2008 Officer Loo approach Lomax and cause a complaint arrest affidavit and hand cuff at the same location as she was going to catch
1 the bus. Officer Loo droved around on the other side ofthe rail roads tracks
and begin to harass Lomax, asking her personnel questions. Lomax ask
Officer Loo to call for his sergeant? Officer Loo, got out ofhis police car in
. a hissing motion and stated that, yes you are being a wises, guy, get up, as he
put the hands cuffs on Lomax in which his police car face east bound on a
one way street, as his car face's East bound on NW 17* Street and Miami
Ave. Officer Loo put Lomax in the back set ofhis police car. Officer Loo
put on a pair ofblack groves while Lomax was in the back sit ofthe police
car hand cuff. Lomax personel property was still on the side walk ofthe
Street, Offer Loo was back and froth from his police car talking to Officer
Eric Saavedra on his cell phone as Lomax looked on with out another
Officers at the location.
Offer Loo threaten to go by Lomax house to drop her personal
Property at her house, she stated that it was all right to bring the items to the
police station. Officer Loo stated that ifhe bring the items to the station that
they would keep the items. Lomax stated that that would be ok. Officer Loo
demand that he was going by Lomax house. Lomax stated, Sir don't go by
my house because ifthe people see me like this that they would brake into
my house. Officer Loo, repeatedly, singing to Lomax, your going to jail,
Your going to jail, waiting in the back set ofthe City of Miami Police car.
2 Lomax was taking to the City ofMiami Police station and search on the out side on the parking lot ofthe police station, by a black female officer and drove around in the front ofthe police station and release on the side walk in public view. See Appendix A - 28.
SUMMARY OF ARGUMENT Elements of a False Imprisonment Claim
All states have false imprisonment laws to protect against unlawful confmement. To prove a false imprisonment claim in a civil lawsuit, the following elements must be present:
• There must have been a willful detention; • The detention must have been without consent; and . The detention was unlawful.
The errors in procedure in this matter, singularly and collectively, are of such magnitude that given the age ofthis matter, In particular, (i) this matter is a "quasi-criminal/ civil" matter and thus to be accorded the substantial procedural rights attendant thereto, (ii) the failure to permit petitioner to call witness and obtain documents violated the Fifth and Sixth Amendments, (iii) the refusal to continue the Final Hearing was an egregious abuse of discretion by the Courts, (iv) the Third District orders was plain error and (v) the behavior shown here are label of" unfair and impartial" for her and thus denied petitioner such a tribunal.
The substantive errors are just as plain. Simply put, petitioner did
3 support the allegations was clearly establishes by the record and such order
(i) was issued as frivolous filing (ii). Likewise, petitioner did not violate
Rule 4-3.1 as none ofher filings were "frivolous" to the cited court order to that end fails.
Accordingly, this Court must now (i) recognize that petitioner is blameless and has been harmed long enough by the Florida Courts' vindictive and false accusations against petitioner and (ii) thus dismiss her
Complaint with prejudice.
Why Lomax should not be sanctioned for frivolous filing, according an intentional tort is one in which the actor was judged to have possessed intent or purpose to cause injury whether expressed or implied. This means that an intentional tort has numerous components, all ofwhich must be proven by a Plaintiff/ Defendant ifthe suit is to prevail. The Components of intentional torts that must be proven are as follows:
• The act was committed by the Defendant/ Respondents.
• The act was deliberate and can be shown to be such due to the fact that the
Respondents had to have known ofthe potential consequences ofthe act.
• The resulting harm was actually caused by the act.
• Clear damages can be shown to have resulted from the act.
Under this standard, Lomax is entitled to a hearing on her motions.
4 No Evidentiary Hearing.
The order ofthe courts dismissing Lomax complaint with prejudice was
improper in that there was evidentiary facts before the Courts reference to
. Lomax complaint in which terminates in Lomax favor.
The sufficiency ofthe complaint was a issue and there was present a
genuine issue ofmaterial fact which would provide for the matter to be
disposed of on an argument for summary judgment.
The allegations set forth in the complaint against Respondents can stand
merely on the presence ofcertain documentations and photographs that only
hearing evidentiary testimony could a valid determination be made as to
whether or not the Petitioner had met is standard ofproof.
The photographs in question were aspect ofthe charges brought
against Lomax. The actions ofRespondents reliance upon the
photographs are all crucial aspects relating to the alleged charges of
misconduct, will be crucial arguments centered around the existence ofthe
photographs in question ofthe officers engaging in misconduct and failure to
train personnel in proper law enforcement techniques.
Discriminatory harassment; improper stops, searches, arrests, or failures
to provide service based on impermissible criteria such as race, national
origin, or gender; coercive sexual conduct; and retaliation against citizens
5 alleging misconduct.
In such cases an order of dismissal with prejudice should indicate the
reasons which motivated the actions ofthe court. May v. Holley, 59 So.2d
. 636 (Fla. 1952). In the instant case the Courts order of dismissal is void of
the reasoning upon which the complaint herein was dismissed with
prejudice. ARGUMENT
I. STANDARD OF REVIEW
Pursuant to Florida Bar Rule 3-7.7 (c) (5) Burden "Upon review, the
burden shall be upon the party seeking review to demonstrate erroneous,
Unlawful, or unjustified.
II. PROCEDURAL ERRORS
A. RULE 3-7.7(F) VIOLATES FLORIDA AND FEDERAL LAW
The procedural rights attendant upon this proceeding are determined by
the nature ofthis proceeding. This Court has re-def'med the nature ofthese
proceedings as "a quasi-judicial administrative proceeding." Rule 3-
7.7(f) (1). This Court by so doing has violated both Florida and Federal law
thereby denying to Petitioner her fundamental procedural rights.
Malicious prosecution is the malicious institution ofunsuccessful
Criminal/ Civil proceedings against another without reasonable or probable
cause. This tort balances competing principles, namely freedom that every
6 person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse ofthe process ofthe court by wrongfully setting the law in motion on a criminal charge ofcivil issues. The foundation lies in the triangular abuse ofthe court process ofthe court by wrongfully setting the law in motion and it is designed to encourage the perversion ofthe machinery ofjustice for a proper cause the tort ofmalicious position provides redress for those who are prosecuted without cause and with malice. In order to succeed the plaintiffmust prove that there was a prosecution without reasonable and just cause, initiated by malice and the case was resolved in the plaintiff's favor. It is necessary to prove that damage was suffered as a result ofthe prosecution. In an action ofmalicious prosecution the plaintiffmust prove:
1) That she was prosecuted by the Respondent/Defendant.
2) That the proceeding complained was terminated in favor ofthe present
Petitioner/Plaintiff.
3) That the prosecution was instituted against without any just or reasonable cause.
4) That the prosecution was instituted with a malicious intention, that is, not with the mere intention ofgetting the law into effect, but with an intention,
7 which was wrongful in fact?
5) That she suffered damage to her reputation or to the safety ofperson, or to security ofher property.
Florida Statute 87.02. False imprisonment; aggravating circumstances,
(1)(a) The term "false imprisonment" means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.
IH. THE FLORIDA LAW
In the seminal case on this question ofwhat procedural rights are to be accorded in a criminal/ civil proceedings, this Court when faced with an invoked her Fifth Amendment right to refuse to answer questions regarding false arrest and imprisonment set and recognized nature ofA hearings and the procedural due process necessarily attendant upon them.
The "Adoption ofthe rule as proposed would, in the opinion, jeopardize rights secured by Section 12, Declaration ofRights, Constitution ofFlorida,
F.S.A., as well as the guaranties embraced in the Fifth Amendment to the
Federal Constitution.
The provision ofRule 1.420 (b) ofthe Florida Rules of Civil Procedure permitting involuntary dismissal only after the party seeking affirmative reliefhas completed the presentation ofher evidence has been said to be too
8 clear and unambiguous to need judicial construction. Sapp v. Redding, 178
So.2d 204 (1st DCA 1965). In Sapp the court held that the involuntary dismissal ofa plaintiffs cause at a trial because ofinsufficiency of evidence, before she had completed the presentation ofher evidence, would constitute reversible error as being contrary to due process oflaw and to fundamental principles ofthe administration ofjustice. The court further held that the plaintiff is entitled to present admissible evidence in an attempt to prove the cause ofaction she has alleged, even though the testimony ofher first witness may indicate that she has a weak case or none at all.
THE FALSE ARREST CLAIMS
Although the Petitioner/ Plaintiff is entitled to a new trial as to the
Respondent/ Defendants false arrest claims, the court should instruct the trial court to reconsider the viability ofthe false arrest claims based on the exclusion ofthe inadmissible evidence and the un-rebutted admissible evidence.
False arrest is "the unlawful restraint ofa person against that person's will." Willingham v. City ofOrlando, 929 So. 2d 43, 48 (Fla. 5th DCA
2006). Probable cause is an affirmative defense to a false arrest claim.
Mailly v. Jenne, 867 So. 2d 1250, 1251 (Fla. 4th DCA 2004); Jackson v.
Navarro, 665 So. 2d 340, 342 (Fla. 4th DCA 1995). Probable cause exists
9 when the circumstances are sufficient to cause a reasonably cautious person to believe that the person accused is guilty of the offense charged. Mailly,
867 So. 2d at 1251; Fla. Game & Freshwater Fish Comm'n v. Dockery, 676
So. 2d 471, 474 (Fla. 1st DCA 1996). Probable cause must be judged by the facts that existed at the time ofthe arrest, not evidence subsequently learned or provided to the prosecution. Mailly, 867 So. 2d at 1251 ("Probable cause is judged by the facts and legal state ofaffairs that existed
In sum, a section 1983 plaintiff must always base his claim on the violation ofa specific federal right. Where the right said to be violated is the
Fourth Amendment, the plaintiffmust establish a concrete violation ofthat right. When the seizure is part ofthe institution of a prosecution (that is, when the Fourth Amendment violation is ofthe kind making a section 1983 claim based on the violation analogous to the tort of malicious prosecution), the plaintiffmay properly wait to sue until the prosecution terminates in his favor. And, also under analogous malicious prosecution principles, injuries caused by the unlawful seizure may include those associated with the prosecution. Applying these considerations to the allegations in Lomax's complaint, THE FEDERAL LAW
Regardless ofwhat this inferior Court may deem the law to be under
10 Florida jurisprudence, this Court is prisoner to the Supreme law ofthis
land. United has invaded the province ofthe "organic law" ofthis State -
something it is powerless to do and is a bold usurpation ofpower never
. delegated to this branch by the People. Accord: State v. Palm Beach
County, 89 So.2d 607, 612 (Fla. 1956) ("that the people in their wisdom
wrote the 1930 restriction into the organic law. It is not for us to question
their wisdom.); Advisory Opinion to Atty. Gen. Fundingfor Criminal
Justice, 639 So.2d 972, 973 (Fla. 1994) ("The single- subject requirement is
a rule ofrestraint. It is designed to insulate Florida's organic law from
precipitous and cataclysmic change."); Ray v. Mortham, 42 So.2d 1276,
1290 (Fla. 1999)"It is the will ofthe people to make a change in their
organic law, as expressed through their vote on the initiative ballot, and the
importance ofgiving effect to the change in law which was actually voted on
by the people, rather than some judicially crafted change.") Yet here, by
"judicially crafted change" coupled with the usurped benefit ofignoring
stare desists, this Court has changed the organic law removing the
"safeguard[s] wrapped in these provisions oforganic law."Nonetheless, if
federal law has preempted state law, either expressly or impliedly, the
Supremacy Clause requires state law to yield." State ofFlorida v.
Stepansky, 761 So.2d 1027, 1031 (Fla. 2000). "Upon the State courts,
11 equally with the courts ofthe Federal system, rests the obligation to guard,
enforce, and protect every right granted or secured by the Constitution ofthe
United States, whenever those rights are involved in any suit or proceedings
. before them. Consequently, it is the duty of State Supreme Courts to follow
the guidelines announced by the Supreme Court ofthe United States in
construing Federal Constitutional rights." State v. Dixon, 283 So.2d 1, 23
(Fla. 1973). States Constitution, Article VI, clause 2.24. Accord: Irvin v.
Dowd, 359 U.S. 394, 404 (1959)("the obligation which rests upon 'the state
courts, equally with the courts ofthe Union, to guard, enforce, and protect
every right granted or secured by the constitution ofthe United States").
"This Constitution, and the laws ofthe United States which shall be
made in pursuance thereof; and all treaties made, or which shall be made,
under the authority ofthe United States, shall be the supreme law ofthe
land; and the judges in every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwithstanding" upon
those rights guaranteed to Petitioner under the U.S. Constitution.
Accordingly, Respondent is entitled to those procedural rights secured by
the federal Constitution notwithstanding this inferior Court's
pronouncements to the contrary and upon these rights this Court must public
12 ally resolve Petitioner claims to procedural violations which require to quash
orders ofthis matter.
PETITIONER WAS ENTITLED TO A JURY TRIAL
In her Answer, Petitioner demanded "a trial byjury ofthe issues raised by the pleadings and so triable", or, alternatively, an advisoryjury.
Clearly, criminal/ civil defendants have a fundamental right to jury trial and infringement ofright is fundamental error. See: (Fla.1985). Given that this is a "quasi-criminal/ civil" proceeding, the novel question arises as to whether Respondent was similarly entitled to ajury trial as her requested.
This Court should reverse the decision entered by the Third District Court of appeals because the delayed discovery doctrine does apply to delay the accrual ofthe causes ofaction in this case. Additionally or alternatively,
Lomax facts and the accrual ofthe causes of action in this case should be determined by the applicable Florida court and the subsequent interpretation ofthe delayed discovery doctrine are questions oflaw to be reviewed de novo. Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla.
2001)("The standard ofreview governing a trial court's ruling on a motion for summaryjudgment posing a pure question oflaw is de novo.");
Armstrong v. Harris, 773 So. 2d 7, 11 (Fla. 2000) ("The standard ofreview for a pure question oflaw is de novo."), cert. denied, 121 S. Ct. 1487 (2001).
13 Florida Statute 87.02. False imprisonment; false imprisonment, aggravating circumstances also would state as follows: (1)(a) The term "false imprisonment" means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.
In the instant case the complaint was dismissed without Lomax having been able to call a witness. Even with photographs, Lomax should have been afforded the opportunity to present testimony as to the events that transpired in regards to the alleged misconduct in an attempt to establish the alleged violations. Such an opportunity would allow the courts to judge the full facts and the credibility ofthe witnesses. A dismissal in this circumstance only presupposes that the Complainant was unable to meet its burden ofproof.
Pro se legal representation means advocating on one's own behalfbefore a court, rather than being represented by a lawyer. This may occur in any court proceeding, whether one is the defendant or plaintiffin civil cases, and when one is a defendant in criminal ofcivil cases. The Third District Court error on it's order. CONCLUSION
Based on the foregoing, Petitioner, Mattie Lomax, respectfully requests this Court to quash the District Court's decision and the Circuit Court ofthe
14 11°' Judicial Circuit in and for Miami-Dade County, Florida in this case, and granting to Lomax such other and further relief as this Court deems just and
Proper, Lomax request this court to vacate the orders from the lower court and remand for further proceedings.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy ofthe foregoing has been furnished by U.S. mail to John A. Greco, Asst. City Atty, 444 S.W. 2°d
Avenue, Suite 945, Miami, Florida 33130, this th day ofJanuary,
2013.
MATTIE LOMAX, PRd 5E In Properper P.O. Box 310464 Miami, Florida 33236 Telephone No: (305) 573-0702
15 CERTIFICATE OF COMPLIANCE REGARDING TYPE SIZE AND STYLE
I HEREBY FURTHER CERTIFY, this day ofJanuary, 2013, that the type size and style used throughout Petitioner's Initial Brief is
Courier New 14-Point Font.
By: . Petitioner, pro se
16