Judge Evokes Shel Silverstein In Allowing Sidewalk Suit to Continue

(CN) – A South Florida judge evoked the poet and cartoonist Shel Silverstein in ruling that an Aventura woman can continue to press her lawsuit against a condo developer, city officials and her local police department.

As recounted in U.S. District Judge Robert Scola’s Sept. 28 ruling, plaintiff Dara Clarke, a homeowner in a residential development located on an island within Aventura’s city limits, was upset when she learned part of her property would be taken to accommodate a sidewalk for a condominium development being built near her home.

The sidewalk was required as per a variance the city granted allowing for the development of the south end of the  island, where Clarke lives. According to Scola’s ruling, the variance states that when the north end of the island is developed, a sidewalk must go in.

In accordance with that agreement, defendant Two Islands Development Corp. applied for permit to build the sidewalk, and city officials granted it under a utility easement.

Clarke and a number of her neighbors then filed a lawsuit in Florida state court, in which they challenged the legality of the sidewalks, and sought to prevent their construction.

Clarke was granted an injunction, which was later overturned.

When the sidewalk construction project finally got underway, members of the Aventura Police Department were deployed to oversee the work.

According to the city, Clarke tried to stop the project, by sitting on her neighbor’s property line. Clarke’s husband then allegedly drove his car on the sidewalk and damaged the newly-constructed curb before the couple fled to a nearby marina.

Clarke disputed this account, and said Aventura police officers Terry Scott and Joseph Craig used excessive force on her.

“When Clarke attempted to explain the situation regarding her property calmly to the officers, Scott suddenly stomped on her foot, and then both officers twisted her arms behind her back and lifted her off the ground, with Scott’s boot still on her foot, and while digging their knees into her calves,” Scola said, recounting the arguments before him. “Scott and Craig then dragged Clarke down the block, berating her, before they threw her into the back of a squad car.”

Clarke claimed the officers “fabricated a story she drove her own vehicle over her neighbor’s curb” and that the developers used a blog to defame her.

In a motion to dismiss, the city argued the complaint “fails to state a claim for violation of the Fourth Amendment for excessive force because the force used was de minimis. In addition, Defendant Officers claim that they are entitled to qualified immunity. Moreover, the City argues that there is no sufficient basis to impose municipal liability upon it.”

Scola held that Clarke has sufficiently stated a claim for excessive force, that she posed no threat to the officers, who may have violated her Fourth Amendment rights.

The developers “capitalized on the opportunity to take one of their most active opponents down a few notches. Allowing the litigation privilege to extend to the Developer Defendants’ acts upon these facts would essentially provide carte blanche to engage in any type of behavior, as long as a there exists a pending court proceeding. This, the Court will not do,” Scola said.

“At its core, this case arises from a disagreement about where the sidewalk ends,” the judge continued. “However, unlike the Shel Silverstein poem, there is no grass growing soft and white, sun burning crimson bright, or peppermint wind.”

The defendants have until Oct. 11 to respond to the amended complaint.

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