ORDER 4/26/99

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
OCALA WOMEN'S CENTER V CITY OF OCALA
DOCKET / CHRONOLOGICAL FILE
ORDER 4/26/99

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
CASE NO. 98-371-Civ-OC-10C

OCALA WOMEN'S CENTER, INC.,
a Florida corporation, and
JAMES S. PENDERGRAFT, M.D.,
on their own behalves and for the class of
patients, staff and associated physicians,
Plaintiffs,
-vs-
CITY OF OCALA, et al.
Defendants

ORDER AND PRELIMINARY INJUNCTION

This case is before the Court for consideration of the Plaintiffs' application for a preliminary injunction (Doc. 17). The Parties have briefed the relevant issues, and the Court heard oral argument. Upon due consideration, I conclude that the Plaintiff has satisfactorily established the four prerequisites for the issuance of preliminary injunctive relief as to Defendants Morrey Deen and the City of Ocala. The Plaintiffs' request for preliminary injunctive relief is Denied as to all other Defendants.

FACTUAL AND PROCEDURAL BACKGROUND

The record presently before the court discloses the following operative facts.[1] The Plaintiff, Ocala Women's Center ("OWC"), is an outpatient medical facility within the City of Ocala providing reproductive health services, including abortion. The Plaintiff, James Pendergraft, is a board-certified ob/gyn who performs abortions at OWC. The Defendants are the City of Ocala; Morrey Deen, the City's Chief Of Police; Marion County, Florida; Horace "Ed" Dean, the current Sheriff of Marion County; Ken Ergle, the former Sheriff of Marion County; Edward James Martin, Sr.; Meredith Trotter Raney, Jr.; all individuals acting in concert and participating with any named Defendant; and John and Jane Does I-X, individuals and all other forms and entities of defendants not yet known by name, participating with any other named or unnamed defendant.

The Plaintiffs seek relief for two separate courses of conduct on the part of the Defendants. First, Plaintiffs seek damages and injunctive relief against the private, individual Defendants for allegedly tortious activities that have occurred at or near OWC. Second, Plaintiffs seek damages and injunctive relief for decisions on the part of the Ocala Police Department and the Marion County Sheriff's Office, respectively, to deny them the services of "special duty''[2] law enforcement officers.

It appears that both law enforcement agencies have long had policies in place permitting their uniformed officers to "moonlight" by working sporadically (or on an ad hoc basis) for private entities or citizens who desire a police presence during privately sponsored activities. Such assignments are subject to approval by the respective law enforcement agencies, and the assigned officers are paid by the citizen or private entity employing them. This arrangement is expressly authorized by state statute and serves a public purpose by maintaining order during the activity involved and by affording police officers an opportunity to earn extra income.

The Ocala Women's Center is a relatively new medical facility that opened in July of 1998. Beginning on July 8, 1998, Dr. Pendergraft and the OWC submitted a series of requests to the Sheriff and the Chief of Police for the services of uniformed officers to provide security with respect to various protest activities occurring on or around the OWC premises and allegedly organized by Defendant Edward James Martin, a resident of Ocala, Florida. Plaintiffs allege that these protest activities are further aided by Defendant Meredith Raney, "an active confederate" of Martin who resides in Melbourne, Florida. See Complaint (Doc.l, ¶20).

Requests to the Ocala Police Department

On July 8, 1998, Dr. Pendergraft requested "special duty" police protection from the Ocala Police Department. See Exh. 2 to Complaint (Doc. 1). By letter dated July 10, 1998, Ocala Police Chief Morrey Deen refused to permit any "special duty" assignments of police officers at the Ocala Women's Center. See id. Chief Deen stated that the Ocala Police Department had no "legal obligation to have our personnel employed in an off-duty assignment when they may find themselves involved in adversarial circumstances .... " (emphasis added). See id. Chief Deen's letter did not describe the special duty assignment policy of the Ocala Police Department in general, nor did it offer any further explanation for the denial of special duty officers. Subsequently, however, Dr. Pendergraft did receive a copy of Operations Order 235.00 which governs the provision of special duty police officers for security work. See Exh. 1 to Complaint (Doc. 1). By letter dated August 28, 1998, Dr. Pendergraft again requested special duty Ocala police to provide security work at OWC. See Exh. 3 to Complaint (Doc. 1). Dr. Pendergraft stated that to deny special duty police security to the OWC Clinic was equivalent to "zoning us out from equal police treatment." He further argued that the Center came within the terms of Order 235.00, "which is nondiscriminatory on its face." See id.

Requests to the Marion County Sheriff's Department

Plaintiffs also sought special detail law enforcement protection from the Marion County Sheriff's Office. By letter dated July 29, 1998, Patricia L. Fulop, Administrator of the Ocala Women's Center, requested off-duty protection from the Marion County Sheriff's Department. See Exh. 5 to Complaint (Doc. 1). This request was also denied, without explanation, by letter dated August 4, 1998. See Exh. 6 to Complaint (Doc. 1). The letter was signed by then Sheriff of Marion County, Ken Ergle.

On September 1, 1998, Dr. Pendergraft again requested, by letter, special detail law enforcement protection from the Sheriff's office. See Exh. 7 to Complaint (Doc. 1). By a reply dated September 8, 1998, Sheriff Ergle denied Dr. Pendergraft's request stating that "[b]ecause the Ocala Women's Center is located within the city limits of Ocala, any requests for additional security should be made to the .Ocala Police Department." Sheriff Ergle included, in the reply, copies of Operations Procedures 4685.00 and 4685.10 for the Marion County Sheriff's Office. See id. Though these written procedures authorize employees of the sheriff's office to provide privately compensated enforcement services within the scope of their training and duty assignments ("Special details"), they state that the Sheriff's Office is not obligated to provide "special details" whenever requested. The written policy, however, did not contain the specific geographic restrictions alluded to by Sheriff Ergle in his August 8, 1998 letter to Dr. Pendergraft. See id.

According to the Plaintiffs, they then attempted to gain information from both the city police department and the sheriff's office regarding special duty assignments that had been approved in the past. Though the Plaintiffs were successful in obtaining a list of the 100 most recent special detail assignments from the Sheriff's office, See Exh. 15 to Plaintiffs' motion for preliminary injunction (Doc. 17), they were unable to obtain any similar information from the police department.

The complaint (Doc. 1) alleges various claims for damages and injunctive relief against the Defendants. The complaint states causes of action against the city and county under 42 U.S.C. §1983- §1986 for alleged violations of the equal protection and due process clauses of the Fourteenth Amendment and against all Defendants for invasions of state and federal privacy rights, negligent infliction of emotional distress, interference with business and professional relationships, and civil conspiracy. The complaint also asserts multiple violations of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. §248, by Defendants Martin and Raney et al., and the FDPPA, Prohibition on Release and Use of Certain Personal Information From State Motor Vehicle Records, 18 U.S.C. §2721, by unspecified Defendants. The complaint requests "exemplarary damages" as well as numerous forms of injunctive relief against all Defendants.

The Plaintiffs' pending motion seeks preliminary injunctive relief on their equal protection and due process claims against the City of Ocala, Chief Deen and Sheriff Dean, as well as on the FACE/FDDPA claims brought against Ed Martin and Meredith Raney.

DISCUSSION

In order to obtain the desired relief, a movant for a preliminary injunction must show: (1) a substantial likelihood that it will successfully prevail on the merits; (2) that it will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs any damage the preliminary injunction might cause the opposing party; and (4) that the issuance of an injunction would not be adverse to the public interest. Zardui-Quintanta v. Richard. 768 F.2d 1213, 1216 (11th Cir. 1985). In deciding this motion, the Court remains well aware that "[t]he preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant 'clearly carries the burden of persuasion' as to the four prerequisites." Id. at 1216 (quoting Canal Auth. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974). For the sake of clarity, the Court will address the Plaintiffs' requests for preliminary injunctive relief separately as to each Defendant.

Defendants Ergle and Marion County

The Plaintiffs stated, on the record at the hearing, that they do not seek any preliminary injunctive relief against these Defendants, and none will be granted.

Defendant Dean

Plaintiffs seek a preliminary injunction mandating that Defendant Dean permit Marion County Deputy Sheriff Officers to perform "special detail" assignments at the Ocala Women's Center. In response, Sheriff Dean asserts that he did not take office as the Sheriff of Marion County until November 18, 1998, and that any decisions denying special detail protection to the Ocala Women's Center were made by his predecessor, Ken Ergle. See Defendant's response to motion for Preliminary injunction (Doc. 30). Sheriff Dean further contends that upon taking office he revised the policies and procedures in effect at the Marion County Sheriff's Office. As part of this overall revision, Sheriff Dean changed the written policy governing the procedures for special detail assignments. Section 4685.0(C)(2) of the Marion County Sheriff's Office Operations Procedure Manual governs the Special Detail Program and now provides: "Any and all events worked by an off-duty deputy shall be within the jurisdictional boundaries of Marion County, excluding the municipalities of Belleview, Dunnellon and Ocala. The only exception would be events at county or other government owned facilities." The policy cites, as its basis of authority, Florida Statute º30.2905(1) which states that the county sheriff "may operate or administer a program to contract for the employment of sheriff deputies, during off-duty hours, for public or private security services." º30.2905(1), Fla. Stat. (1997).

Sheriff Dean argues that although the Sheriff's office will permit special detail assignments in the unincorporated areas of Marion County, i.e. outside the Ocala limits, the provision of special duty law enforcement personnel to private entities within the City of Ocala is the sole responsibility of the Ocala City Police Department. Put in the simplest terms, the Marion County Sheriff's Department no longer provides special detail protection to any privately owned entity within the City of Ocala. This being the case, the Court agrees that preliminary injunctive relief is inappropriate as against Sheriff Dean. The purpose of injunctive relief is to prevent the threat of future harm by an ongoing policy or practice, in this instance a policy that allegedly denies equal protection of the law. Thus, "[w]hen the threat of future harm dissipates, the plaintiff's claims for equitable relief become moot because the plaintiff no longer needs protection from future injury." See Adler v. Duval County School Bd,, 112 F. 3d 1475, 1477 (11th Cir. 1997). Here, if the Sheriff is no longer authorizing special duty assignments for the benefit of any private entity or person within the City of Ocala, then the Plaintiff's right to equal protection of the law is not threatened.[3]

Defendants Martin, Raney,. and all Unnamed and Unknown Defendants

The Plaintiffs seek a preliminary injunction against Defendants Martin, Raney, and all unknown individuals participating with them in allegedly unlawful protest activities. These activities are said to occur at or near the Ocala Women's Center. Plaintiffs allege generally that these activities have resulted in the intimidation and harassment of patients, physician, and staff, and that they act as an impediment to those who seek to enter the clinic.

The activities which the Plaintiffs seek to enjoin include, inter alia, copying the license plates of any vehicle within 1500 feet of the clinic; the presence of cameras within 1500 feet of the clinic; distribution of information about staff and patients of the clinic; distribution of unwanted information to patients, staff, or physicians of the clinic; and any unwanted physical or verbal contact with patients, staff, or physicians of the clinic either at the clinic or "at any place of residence or business or other activity of such person."

The Defendants resist the granting of any injunctive relief on the ground that they .have done nothing more than exercise their First Amendment right of free speech.

The Plaintiffs have based their requests for injunctive relief on the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. §248, and they cite the Supreme Court's decisions in Madsen v. Women's Health Center. Inc., 512 U.S. 753, 114 S. Ct. 2516, 129 L.Ed.2d 593 (1994) and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S. Ct. 855, 137 L.Ed.2d 1 (1997). However, neither Madsen nor Schenck involved injunctions entered under FACE. Both of those decisions dealt with causes of action grounded in state law. Thus, while both decisions clearly govern the scope of injunctive relief that might be granted without invading the Defendants' constitutional right to free speech, neither decision provides a jurisprudential basis or cause of action for the issuance of injunctive relief itself. See Lucero v. Trosch. 121 F.3d 591, 594 (11th Cir. 1997), in which the district court declined to grant relief under FACE, but then entered an injunction on the basis of Alabama law governing the maintenance of a nuisance. Here, at least at this point in the litigation there is no clearly plead state law claim that would warrant the granting of the relief sought; and, as previously stated, the Plaintiffs seem to rely entirely upon FACE as the basis of their cause of action against these Defendants for preliminary injunctive relief.[4]

The Freedom of Access to Clinics Entrances Act, 18 U.S.C. §248(a)(1) provides that whoever

"by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person any other person or any class of person from , obtaining or providing reproductive health services; . . . shall be subject to penalties...and . . .civil remedies ...."

Section 248(e) provides in relevant part:

(e) Definitions.--as used in this section...

(2) Interfere with.--The term "interfere with" means to restrict a person's freedom of movement.

(3) Intimidate.--The term "intimidate" means to place a person in reasonable apprehension of bodily harm to him or herself or to another.

(4) physical obstruction.--The term "physical obstruction" means rendering impassible ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous.

The clear language of the statute only extends to those who use "force or threat of force or...physical obstruction .... "Mere words, shouted or inscribed on placards, no matter how offensive they may be, can never violate FACE (as distinguished, perhaps, from other state statutory or common law restrictions) unless the words used convey a threat of force. See Cheffer v. Reno, 55 F.3d 1517, 1521-22 (11th Cir. 1995).

The affidavits and photographs, submitted in support of the Plaintiffs' application (Doc. 17, Exhs. 4-14) simply do not establish any significant incidents of the use of physical force or the threatened use of force against the Plaintiffs by the Defendants. Compare United States v. Burke, 15 F.Supp.2d 1090 (D. Kansas 1998) and United States v. Roach, 947 F. Supp. 2d 872 (E.D. Pennsylvania 1996) in which injunctive orders were entered under FACE where the facts revealed a level of physical force or violence not present here. In Burke, for instance, the district court made factual findings that the Defendant had physically blocked the entrance to a clinic and had assaulted three clinic employees on one occasion. See id. at 1092, 1095. Likewise, in Roach, the district court's findings of fact revealed that the Defendants had blocked all three entrances to a clinic by placing themselves directly in front of the front and side doors, and in front of the landings and bottom steps of the fire escape. Additionally, the court found that the Defendants had pounded on windows of cars entering the clinic parking lot. See Roach, 947 F. Supp. at 873.

Preliminary injunctive relief against these Defendants will presently be Denied. The Court is not persuaded that the Plaintiffs have demonstrated a high likelihood of success on the merits of their claim under FACE, 18 U.S.C. §248.

Defendants Deen and the City of Ocala

Plaintiffs seek injunctive relief against these Defendants that would "require that uniformed city police officers be allowed and assigned for duty at OWC upon request by OWC for such security and protection." Plaintiffs argue that the denial of special duty police protection to the Ocala Women's Center is a denial of the Fourteenth Amendment's guarantee of equal protection. Plaintiffs contend that this "exclusion is invidious discrimination, unreasonable, arbitrary, and unlawful.''[5] For the reasons that follow, the Court agrees that the Plaintiffs have met the requirements entitling them to preliminary injunctive relief against these Defendants.

A. Likelihood of Success on the Merits

In order to prevail on the merits, Plaintiffs must establish that Chief Deen and the City of Ocala engaged in conduct violative of the equal protection clause.[6] To establish an equal protection claim under the Fourteenth Amendment, Plaintiffs must show that the Defendants, in implementing the special duty police program, treated the Ocala Women's Center differently on the basis of criteria wholly unrelated to a legitimate governmental interest. See Eisenstadt v. Baird, 405 U.S. 438, 447, 92 S. Ct. 1029, 1035, 31 L. Ed.2d 349 (1972)(citing Reed v. Reed, 404 U.S. 71, 75-76, 92 S. Ct. 251, 253, 30 L.Ed.2d 225 (1971)(internal citations omitted). In the simplest terms, the Plaintiffs will prevail if they establish that the City of Ocala had no rational basis for denying special duty police protection to the Ocala Women's Center. See id. at 447 (noting that the question for the Court's determination was whether there is some rational ground that explains different treatment).[7]

It is well established that the Fourteenth Amendment does not "' deny to a State the power to treat different classes of persons in different ways." See id. at 446-47 (citing Reed, 404 U.S. at 446-447)(internal citations omitted). A classification, however, "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." See id. (internal citations omitted).

Furthermore, it is clear that once a governmental entity provides a public service, it must do so in a reasonable, non-arbitrary manner. See i.e. Gilmore v. City of Montgomery, 417 U.S. 556, 94 S. Ct. 2416, 41 L.Ed.2d 304 (1 974); Dowdell v. City of Apopka, 698 F.2d 1181 (11th Cir. 1983). Thus, a denial of equal protection will result when a governmental entity provides a service in a discriminatory manner, even though the governmental entity may not be required in the first instance to provide that service at all.

Turning to the facts of this case, once the Ocala Police Department implemented a "special duty police" program, it becomes constitutionally obligated to administer that program in a non-discriminatory, non-arbitrary manner. It is clear from the evidence adduced at this stage that the Ocala City Police Department, by denying special duty police protection to the Ocala Women's Center, has treated the Ocala Women's Center differently than other private entities to which it will provide special duty protection. The only remaining inquiry is whether such classification and treatment is permissible, i.e. whether it is rationally related to a legitimate governmental interest. See Bah v. City of Atlanta, 103 F.3d 964, 966 (11th Circuit 1997)(noting that unless a case involves a suspect class or fundamental right, the equal protection clause requires only that the classification be rationally related to a legitimate state interest.)[8]

Special Duty Assignments in the City of Ocala are governed by Section 235.00 of the Ocala City Police Procedures. Section 235.1 provides:

"Any regular, full time sworn officer of this Department or any sworn member of this Department's Police Reserve may, upon proper application, be assigned to perform Special Duty during that time when he is not performing regular duty assignments for the Department. Each eligible member who desires to be considered for Special Duty Assignments shall notify his immediate supervisor."

Section 235.2 further provides, in pertinent part: "[a]ny person, firm or organization, desiring the services of an officer for Special Duty, shall make such request to the Secretary to the Patrol Division Commander or in her absence to the Secretary to the Chief of Police." See Exh. 1 to Complaint (Doc. 1) In his affidavit, Chief Deen concedes that the Operations Manual is promulgated "solely within the prerogative of the Chief of Police." See Affidavit of Morrey Deen, ¶7, attached to Defendants memorandum in opposition to preliminary injunction (Doc. 31). Chief Deen further attests that the implementation of section 235 is discretionary with the police chief. See id. at ¶13.

Thus, it is undisputed that the Chief of Police has complete discretion to decide whether a person, firm or organization will be granted the requested special duty protection. Chief Deen contends that the denial of the OWC's request is consistent with the Chief's professional judgment that special duty officers "should not be used in circumstances where a public perception could be created that the police department is anything other than the neutral enforcers of the law." See Defendant's memorandum of law in opposition to motion for preliminary injunction (Doc. 31, ¶3). Chief Deen therefore asserts that he has denied special duty protection to many other events, such as "teen dances" where police officers would "appear to be other than detached and impartial enforcers of the laws." See id. (Doc. 31, ¶4). Chief Deen further contends that he would similarly deny special duty protection to a Ku Klux Klan rally or a pro-choice rally because a police officer's presence at such an event would undermine the public perception of impartial law enforcement and invite, perhaps, the initiation of expensive lawsuits by those who disfavor the presence of the officers.

In sum, the Defendants seek to justify the different treatment of the Plaintiffs on the ground that the presence of police officers at the Plaintiffs' place of business would insert the department into an "adversarial" environment and would diminish the public perception of neutral law enforcement because it would appear that the police had "taken sides." I find this proffered justification to be wholly irrational, in terms of constitutional jurisprudence, for several reasons: (1) it is not listed or described in the written policy as a basis for disapproval of a special duty assignment of police officers; (2) it is a completely undefined and subjective policy to be applied by the Chief of Police without objective guidelines of any kind; and (3) it simply makes' no sense as applied in this case or, for that matter, to any other "adversarial" public event. One would suppose, in terms of sound law enforcement objectives, that the greater the likelihood of a public clash of adversaries, the greater the justification for a police presence to maintain peace and good order. To disapprove the presence of police officers in such a case merely because some members of the public--even a majority of the public--may not like it, is nothing less than a complete abandonment of law enforcement responsibility.[9]

It may be, at any given moment in a particular community, that the majoritarian view favors one group or set of ideas over another so that the presence of the police may seem to favor the interests of the disapproved minority. It may also be true that in such a case the Chief of Police is forced to make a political choice that seems contrary to his personal self-interest, but these considerations cannot be accepted as rational governmental justifications for different treatment of private entities exercising their lawful, constitutional rights.

The Plaintiffs have demonstrated a substantial likelihood of success on the merits with regard to their claim against the Chief of Police and the City of Ocala.

B. Irreparable Injury

The conclusion that the Plaintiffs will suffer irreparable injury absent an injunction mandating special detail police protection flows from the Plaintiffs' likelihood of success on the merits. The Eleventh Circuit has noted that "an injury is 'irreparable only if it cannot be undone through monetary remedies." Northeastern Florida Chapter of Association of General Contractors of America v. City of Jacksonville. Florida, 896 F.2d 1283, 1284 (11th Cir. 1990). Thus, "[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough." Id.

The injury at issue in this case cannot be undone through monetary damages. Plaintiffs have alleged that they have been continuously denied special duty police protection which is afforded to other entities. The evidence adduced at this state suggests that the denial of special police protection is a denial of the constitutional right to equal protection of the law, and it cannot be measured and wholly rectified through mere monetary relief. The chief benefit lost by the Plaintiffs is the security provided by additional police protection, something which cannot be quantified. Thus, the Plaintiffs have established irreparable injury in the absence of an injunction.

C. Balance of Harms and Public Interest

The Court is further persuaded that the potential harm to the Plaintiff in the absence of a preliminary injunction outweighs any harm to the Defendants resulting from the issuance of such relief. According to the terms of Chief Deen's written policy governing special duty police assignments, the assignments are completely voluntary on the part of the police officer who takes the assignment; and, as stated during the April 2, 1999 hearing, the officer would be paid by the OWC, not by the City.

Finally, the Court concludes that the public interest militates in favor of the entry of injunctive relief. In fact, the Court cannot find any argument to support an inference of any resulting public harm.

Upon due consideration, it is Ordered:

(1) the Plaintiffs' application for preliminary injunction (Doc. 17) is DENIED as to Defendants Marion County, Florida; Horace "Ed" Dean; Ken Ergle; Edward James Martin; Meredith Raney, Jr; and all unnamed and unknown individuals listed as Defendants.

(2) the Plaintiffs' application for preliminary injunction (Doc. 17) is GRANTED as to Defendants Deen and the City of Ocala, and Defendants Deen and the City of Ocala are hereby enjoined, pending further order of the Court, from withholding approval of the assignment of, available special duty uniformed city police offers for work at the Ocala Women's Center upon request by the Center pursuant to section 235.05 and 235.10 of the operations manual and upon application by Ocala City police officers pursuant to the section 235.01 of the operations manual which governs special duty assignments, for such security and protection, subject to the usual rules and practices with other businesses and organizations as to payment for such government services and accommodation.

(3) This injunction shall become effective upon the giving of a good and sufficient security by the Plaintiff to the Clerk of the Court in the sum of $1,000.00, which the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who may be found to have been wrongfully enjoined or restrained.

(4) Defendant Martin's motion for leave to file supplemental memorandum of law in opposition to motion for preliminary injunction (Doc. 37) is GRANTED, and the Clerk is directed to file the attached memorandum.

IT IS SO ORDERED.

DONE and ORDERED in Jacksonville, Florida, this 26th day of April, 1999, at 5:00 p.m.

Wm. TERRELL HODGES <signed>
UNITED STATES DISTRICT JUDGE

FOOTNOTES

[1] Ordinarily, as in this case, applications for preliminary injunctive relief are decided upon review of a "paper record." The parties have filed affidavits and other documentary materials and have made both oral and written arguments based on that evidence. See Rule 4.06, M.D.Fla. Rules

[2] Though such protection is frequently referred to throughout the record as "offduty" protection, such service is not technically "off-duty" because the police officer or deputy sheriff retains all of his or her law enforcement authority, i.e. power to arrest. Thus, the Court will refer to such duty as "special duty" in the case of the Ocala Police Department or "special detail" in the case of the Marion County Sheriff's Office.

[3] The Plaintiffs' request for damages as against Sheriff Dean, however, are not moot. "[A] claim for money damages looks back in time and is intended to redress past injury." A suit brought against Sheriff Dean in his official capacity, is a suit against the Sheriff's office itself. Thus, Sheriff Dean may still be liable for any injury caused by the implementation of the special-duty policy by the Sheriff's office before the policy was revised.

[4] The complaint contains multiple counts against the Defendants Martin and Raney such as state law claims for invasion of privacy (Count III); negligent and intentional infliction of emotional distress (Count IV); and interference with business relationships (Counts V & VI). None of these claims would justify the kind and scope of injunctive relief being requested.
Moreover, in their reply brief (Doc. 35), the Plaintiffs contend that the FACE statute, as supplemented by Florida's stalking and privacy laws, would provide the full basis for the injunctive relief sought here. However, not only is the complaint devoid of any state law stalking claim, but the Plaintiffs have failed to establish exactly what specific conduct, prohibited under Florida's stalking law, should be enjoined.
Though the Plaintiffs did not properly obtain leave to file a reply brief, the Court has nonetheless considered it.

[5] Plaintiffs have argued, in their motion for preliminary injunction, that the City's denial of special duty police protection is a violation of both the equal protection clause and the due process clause of the Fourteenth Amendment. However, at the hearing held on April 2, 1999, Plaintiffs agreed that their claim is primarily based on the equal protection clause, and the Court will analyze the Plaintiffs claim solely on that basis.

[6] Count I states that the equal protection claim has been brought against the City pursuant to 42 U.S.C. §§1983-1886. See Complaint (Doc. 1, ¶128). The complaint contains no further specificity; however, the Defendants have not challenged the sufficiency of the allegations under Fed. R.Civ. P. 8.
The equal protection claim thus appears to have been brought pursuant to 42 U.S.C. §1983. In order to maintain a §1983 claim against a municipal entity, i.e. against the City or the County, a Plaintiff must prove that the alleged constitutional deprivation occurred as a result of an "official policy." See Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Under Monell. however, "official policy" may be found, not only in the formal rules of a municipality, but through its established customs or through decisions made by officials authorized by the municipality to establish final policy with respect to a particular subject matter. See Pembaur v. City of Cincinnati, 475 U.S. 478, 482-83.
The evidence adduced at this time leaves little room for dispute that Chief Deen was vested, by formal policy of the Ocala Police Department promulgated by the Chief of Police, with final decision making authority over special duty assignments.

[7] Plaintiffs allude to, but do not argue, the propriety of a higher level of scrutiny. See motion for preliminary injunction (Doc. 17, pg. 10). Because the Court concludes that the actions of Chief Deen and the City of Ocala do not survive rational basis analysis, the Court need not address the rather attenuated argument that the classification disparately impacts women.

[8] The Court is aware that in a rational basis analysis, "' those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it.'" Bah, 103 F.3d at 966 (citing Beach Communications v. ?, 508 U.S., 314, 113 S. Ct. at 2102. In this case, however, the Defendants have already proffered a governmental interest which the Court will evaluate under rational basis scrutiny.

[9] I do not discount the possibility that there could be circumstances in which the visible presence of uniformed police officers could serve to inflame and incite rather than deter violence so that inconspicuous surveillance would be the preferred (and rational) law enforcement response. But there has been no suggestion that those were the circumstances in this case, i.e., that the Defendants chose to surveil the scene rather than approve the private employment of special duty officers.