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Brevard County Sheriff’s Office Claims They Have To Do Whatever The County Commission(ers) Say. How Wrong Can They Be?

After our post on April 1, 2020 concerning the outrageous actions of County Commissioner Bryan Lober, Sheriff Wayne Ivey and an un-named Deputy Sheriff in removing one Robert Burns from a “press conference” / meeting, we received an emails from Burns forwarding both his complaint to the Brevard County Sheriff’s Office and the response from email from Brevard County Sheriff’s Office West Precinct Commander Bruce L. Barnett.

We want to make it clear that we are not fans of Burns and his tactics, but this goes beyond our mutual dislike for each other. If the Sheriff’s Office thinks they can trample on the rights of people with impunity, that affects us all.

First, the Burns’ complaint email dated March 28, 2020:

Lt Simpkins,

I’ve been trying to reach you to get more information and file a formal complaint about the incident that occurred this past Tuesday at the press conference.

According to Sgt Hammond your subordinate, he was instructed by you to have me removed from the county press conference at the request of Bryan Lober.

He stated that you were contacted by Commissioner Lober to have me removed from the government building where the public press conference was occurring.

I would like to know under what authority was I removed from this event? I would also like to have a copy of the text messages you received from Lober directing you to do this.

Sgt Hammond stated that if a commissioner wants you gone then you are gone. Does the BCSO operate under the direction of the County Commission? Does the BCSO have a responsibility to conduct some sort of investigation to ensure what they are doing is lawful and not in violation of a citizens rights?

According to Sgt Hammond, he used the analogy of it being the same as a business owner requesting your removal from their business. That is inaccurate. He the. Used the analogy of a sex offender being removed from a park. Again, another inapplicable scenario.

According to the communications director there is no approval process to attend press conferences and there is no reason to check credentials.

However when asked by the deputy I did show my ID and my credentials and was still removed at the direction of Lober who was not in charge of this event.

Also is it standard procedure for a supervisor to be contacted in this manner to execute directives of a commissioner via personal text message instead of calling dispatch for a call for service as any other citizen would have to do?

I called the precinct 3 times yesterday asking to speak to you about this and received no returned phone call. Sgt Hammond when he called me was unprofessional calling me “guy” and would not return any further phone calls. The communications officer said my message wears delivered to you and there was nothing further for her to do as “she did her job.” I asked for your email and was told that she didn’t think she was allowed to give that out.

I believe that the potential violation of someone’s civil and constitutional rights is a serious matter and needs to be addressed in a timely and professional manner. None of which has occurred.

Please reply to me via email as I would like to have a record of any further correspondence.

Robert W. Burns III

Burns received a response from one Commander Bruce L. Barnett, who is the Brevard County Sheriff’s Office Commander of the West Precinct.

Mr. Burns,

I apologize for the delay in response to your earlier email. Unfortunately, with the COVID-19 crisis preparation along with having been out of my office, I have been unable to respond prior to this date and time.

In response to your email, I would advise you that we do take direction from the County Commission as required by statute. We are required to execute all orders of the board of county commissioners, as well as many other statutory requirements. So, in essence yes, the board does have the authority to have you removed from the meeting and no, there is not a requirement for an investigation to determine if the request is lawful. It is my understanding that the meeting in question was for credentialed media only and that you were not properly credentialed. As a result, the commission requested to have you removed and we obliged their request. How this process occurred is not of concern to me and frankly is irrelevant. Whatever stipulations the commission has regarding these credentials are their requirements and are not vetted by nor are the policies of the Sheriff’s Office. If you have concerns regarding these requirements, I would ask that you direct them to the county commission.

Regarding your request for text messages to Lt. Simpkins’ phone, you are welcome to submit a public records request through our Records Unit in Titusville by contacting them directly as they are the custodian of all Sheriff’s Office records, to include text messages. Records can be reached at 321 264-5214 or through our website at http://www.brevardsheriff.com. There is a link under the “How Do I” tab that should explain the process and the costs involved.

It is not unheard of, due to the professional relationships that we have developed with our commissioners, to have them contact myself or one of the other supervisors directly here at the West Precinct to request our assistance. This generally takes much less time to effect their direction versus calling the Communications Center and having the call dispatched. Often, the deputies that are working these meetings are in a special duty capacity and are more readily accessible through us rather than through the Communications Center.

I hope that I have satisfied the questions and concerns that you have regarding this matter.

Respectfully,

Commander Bruce L. Barnett
Brevard County Sheriff’s Office
West Precinct
2725 Judge Fran Jamieson Way Building E
Viera, FL 32940
Office: 321 633-2104

The second paragraph is the one we want to address.

We are required to execute all orders of the board of county commissioners, as well as many other statutory requirements.

Police officers take oaths to the US Constitution, the Florida Constitution and the laws of the State. Commander Barnett’s statement implies that an Deputy Sheriff is required to follow the direction of the Board of Commissioners no matter what. In the extreme, if the Board of Commissioners decided to tell a Deputy Sheriff to take a person outside and beat them to a bloody pulp, Barnett seems to think that would be legal. Another example would be that the Commission could order a Deputy Sheriff to break into the home of someone and search for something (anything at all) without a warrant and that would be acceptable.

That is sheer, utter lunacy. We cannot imagine a supposed respected law enforcement officer, much less a supervisor making such a ridiculous assertion.

So, in essence yes, the board does have the authority to have you removed from the meeting and no, there is not a requirement for an investigation to determine if the request is lawful.

The order to remove Burns was not given by the Commission. It was given by one person – Commissioner Bryan Lober.

There is no doubt that Lober and Burns don’t like each other. “Don’t like” may be too weak. “Despise” may be a better term. Still, that does not give Lober or any Commissioner the right to order a Deputy Sheriff to do what is clearly illegal and have the Deputy Sheriff meekly comply with the County Sheriff standing there.

We do agree that there need not be an “investigation” into the legality of the actions of the officer at the time the order is given or the officer is completing the directive.

This is founded on what is called “qualified immunity” which allows that when people such as government officials and officers are forced to make decisions they are not held accountable individually unless the law they are accused of violating is clearly established.

Qualified immunity is a type of legal immunity. Qualified immunity “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan .

Specifically, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

In short, when the law is clearly established, an officer cannot proceed with illegal actions unless they want to face consequences on many legal fronts. Where the law is vague or not established, the government official or officer is protected by “qualified immunity” in that they can claim they were unaware their actions would later be later be declared to be illegal.

In this case, the right of Burns to be in the press conference / meeting, filming without causing a disturbance is clearly established.

In the case of Smith v. City of Cumming, Georgia (2000), the Eleventh Circuit (which covers the State of Florida) held:

The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest. See Blackston v. Alabama, 30 F.3d 117, 120 (11th Cir.1994) (finding that plaintiffs’ interest in filming public meetings is protected by the First Amendment); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.1995) (recognizing a “First Amendment right to film matters of public interest”); Iacobucci v. Boulter, No. CIV.A. 94-10531, 1997 WL 258494 (D.Mass, Mar. 26, 1997) (unpublished opinion) (finding that an independent reporter has a protected right under the First Amendment and state law to videotape public meetings); see also United States v. Hastings, 695 F.2d 1278, 1281 (11th Cir.1983) (finding that the press generally has no right to information superior to that of the general public) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)); Lambert v. Polk County, 723 F.Supp. 128, 133 (S.D.Iowa 1989) (“[I]t is not just news organizations … who have First Amendment rights to make and display videotapes of events….”); Thompson v. City of Clio, 765 F.Supp. 1066, 1070-71 (M.D.Ala.1991) (finding that city council’s ban on member’s attempt to record proceedings regulated conduct protected by the First Amendment); cf. Williamson v. Mills, 65 F.3d 155 (11th Cir.1995) (reversing district court’s grant of qualified immunity to a law enforcement officer who seized the film of and arrested a participant in a demonstration for photographing undercover officers). Thus, the district court erred in concluding that there was no First Amendment right. (emphasis ours)

Burns’ right to be at the meeting / press conference is well established law. There is no need for any “investigation” as to the legality of this matter at all. The law is clear.

Returning to Barnett’s email:

It is my understanding that the meeting in question was for credentialed media only and that you were not properly credentialed.

Burns disputes that assertion as he says he showed his credentials yet in the long run, it doesn’t matter.

Once again, referring to the opinion of the 11th Circuit:

  • The First Amendment protects the right to gather information about what public officials do on public property, and specifically, a right to record matters of public interest.
  • finding that an independent reporter has a protected right under the First Amendment and state law to videotape public meetings
  • finding that the press generally has no right to information superior to that of the general public
  • [I]t is not just news organizations … who have First Amendment rights to make and display videotapes of events….”

It is clear that Barnett’s assertion that Burns was “not credentialed” does not have one iota of relevance to what happened. As long as Burns was not disruptive, he can be there and film the proceedings.

This is established law and the fact that a Precinct Commander in the Brevard County Sheriff’s Office is willing to make statements that are clearly wrong is more than troubling.

In addition, the fact that Commissioner Bryan Lober, who is an attorney initiated the illegal directive to the Deputy and that the head law enforcement officer in the County stood by and did nothing is appalling.

Why do Lober, Ivey, the unnamed Deputy Sheriff and Barnett think the laws of the land don’t apply to them?

Why do they think that they can trample on the established rights of people – rights they swore to uphold?

Do their oaths mean that little to them? More importantly, shouldn’t people of Brevard be concerned that their oaths mean so little to them?

As we said, we don’t like Burns, and in many ways feel that Burns and Lober deserve each other.

To us, it doesn’t matter if what happened happened to Burns, Joe Q. Public, or Suzie Smith.

The bigger issue that must be addressed is the blatant disregard for established law, and how those who are charged with enforcing those laws feel they have a right to not abide by the laws of the land.

If we don’t have officials and officers that don’t follow the law, we need new, better officials that do.



One Response to “Brevard County Sheriff’s Office Claims They Have To Do Whatever The County Commission(ers) Say. How Wrong Can They Be?”

  1. Carla says:

    Thank you for bringing this to light. It is indeed troubling that these public servants would go out of their way to violate a member of the public’s right to be present at a public event. We should all be outraged over such blatant disregard of the law, which these people took an oath to uphold.

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