MIAMI — Two months ago, Miami Beach’s city prosecutor told a court it would defend a constitutional challenge to a controversial ordinance used to repeatedly arrest people who were filming police officers on city streets. The much-anticipated legal showdown was finally set for Wednesday.
But as it has before, Miami Beach ducked the fight.
Instead, the prosecutor walked into court on Wednesday to announce the city was dropping the case against a woman who’d been charged 10 months ago under the law, which allowed for the arrest of people who “interrupt” and get too close to cops. The move was blasted by the Florida Association of Defense Lawyers and the Florida Justice Center, which has sought to use the case to strike down the ordinance they believe is unconstitutional and criminalizes protected free speech.
“It seems like at this point, this is an ordinance they recognize they cannot defend in court,” FACDL attorney Daniel Tibbitt told County Judge Betsy Alvarez-Zane during Wednesday’s brief hearing.
Said Alex Saiz, who heads the non-profit Justice Center: “I would call these cases fraudulent, but that would be an insult to people who commit fraud. This is a bait and switch, where the Miami Beach commission is telling tax payers this is a valid law and then running away from defending them in court.”
Miami Beach prosecutor Yoe Lopez told a judge that after “we reviewed all the evidence,” the city attorney’s office could not go forward in the case against Rebecca Marie Kowalczyk. She was arrested after police said she “began pointing her cell phone and yelling profanities” at officers on Collins Avenue on July 25.
Lopez, after the hearing, declined to comment. In a statement, the city said that despite the dropping of the case, “nonetheless, the City remains confident in the validity of its ordinance and is prepared to defend its constitutionality against any challenge.”
The city did not explain why it took nearly 300 days to announce it did not have enough evidence to take the case to trial.
Tough on crime
Since a raucous spring break in 2021, Miami Beach elected leaders have passed a series of measures to appear tough on crime, including dramatically expanding the city’s prosecution program. That includes an effort to take over prosecuting misdemeanor battery, criminal mischief and indecent-exposure cases.
During this year’s spring break, after two shootings in South Beach, the city declared a state of emergency, which allowed for a midnight curfew and restrictions on alcohol sales — a measure blasted by critics as overly broad and aimed at mostly Black crowds.
As for the ordinance, it was first passed in June 2021 and made it illegal to “approach or remain within 20 feet” of a Miami Beach police officer with the “intent to impede, provoke or harass” an officer engaged in lawful duties, after receiving a warning. It’s punishable by a fine of up to $500 or up to 60 days in jail.
But the ordinance didn’t gain widespread attention until after a series of rough and questionable arrests at the Royal Palm hotel on July 26, 2021. In a case that drew national attention, two New York men were arrested under the same ordinance as they video recorded police officers at the hotel.
In the aftermath, five Miami Beach police officers wound up charged with misdemeanor battery after prosecutors said they used excessive force in making arrests. The State Attorney’s Office dropped both ordinance cases against the New York men, who had also been charged with state crimes. State prosecutors will handle the municipal cases if they are accompanied by state charges.
Records show the Miami Beach Police Department pushed to implement the ordinance in time to deal with expected crowds in town for the Rolling Loud hip-hop festival. A Herald review of 13 arrests over that weekend showed all of them were of Black people, and most were of people filming officers. In those 13 cases, charges have been dismissed.
The FACDL has continually sought to challenge the constitutionality of the ordinance, filing motions to dismiss in four other cases. Each time, prosecutors dropped the case and no challenge was heard.
“It criminalizes a substantial amount of innocent conduct,” Tibbitt wrote of the law in the motions. “The bottom line is that Americans have the right to remain within 20 feet of police officers and have the right to engage in conduct that may annoy police officers.”
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