“Special protection” – the Sheriff’s flawed hurricane re-entry program (first article in a series of three)

A review of the Pinellas Sheriff’s program for post-hurricane reentry found multiple security weaknesses, including allowing entry of people with arrest warrants while denying entry to most law-abiding Pinellas County residents.  The sheriff also contradicted his own agency’s published official information.

The program has the force of law, and can remain in effect for weeks after the barrier islands have been officially declared by the Sheriff to be safe and secure for reentry.

gualtieriQuestions about the program sent to Pinellas County Sheriff’s Office (PCSO) media liaison Spencer Gross were answered by Sheriff Bob Gualtieri (pictured right).

Gualtieri answered two of the six question we asked of his agency and claimed that the reporter was “trying to stir the pot and make something out of nothing”.

His e-mail ended with “we are done dealing with this and will not further respond.” The full thread of communications between the Tampa Bay Guardian and PCSO is here.

The official start of hurricane season is June 1st, and disaster preparedness naturally becomes a priority for all Floridians this time of year. PCSO’s Emergency Access Permit (EAP) program restricts access to some areas of the county after a hurricane, but the special protection it provides applies only to the well to do barrier islands of Pinellas County. The program can be enforced until the declared state of emergency is lifted, a period which could be several weeks, or even months.

The sheriff has the power to restrict access to any portion of the county during a declared state of emergency, whether that emergency be declared locally or by the governor. However, the EAP program only applies the barrier islands, the specific areas being listed in this April 24, 2015 PCSO news release.

Imagine this scenario: a “lesser blow”, a weak category 2 hurricane, strikes Pinellas County. Nonetheless, it causes significant damage from Sand Key through Indian Rocks Beach down to the Redingtons. Two days later, Sheriff Bob Gualtieri declares these areas “safe and secure for entry and reentry.” This is the language used in the ordinance that PCSO cited as authority for the EAP program (section 34-29 of the Pinellas County Code).

crabby-bills-370
Crabby Bill’s – an Indian Rocks Beach Institution

So it’s safe to reenter, and you make a beeline to Indian Rocks Beach to see if Crabby Bill’s is still standing, and to help the Loder family clean up, and rebuild if necessary.

You have other friends on the beaches who you want to help. You haven’t been able to reach anyone because the cell phone towers are down.

However, PCSO deputies refuse you entry at a check-point at the foot of the Walsingham bridge. “It’s to prevent looting and burglary and to keep trespassers from gaining easy access to property“, a PCSO deputy informs you.  Yet you  see other people entering Indian Rocks Beach, some of whom who know have felony convictions and even outstanding arrest warrants.

You ask the PCSO deputy how letting those people in helps prevent looting and burglary. “Those people have special permits that allow them to enter”, answers the deputy. “And you can’t obtain the special entry permit they have because you don’t qualify for it.”

“I’m a law-abiding citizen with no criminal record, so if it’s ‘safe and secure’ for those people to enter, it’s safe for me”, you tell the deputy. “The Sheriff doesn’t want gawkers”, responds the deputy. “Well, I’m not a gawker and besides, is there a law against gawking? What about my constitutional rights”, you ask. “You’re holding up the line. Make a U-turn and leave now, and that’s an order”, answers the deputy.

The EAP program purports to secure property, yet has gaping security holes in it. One business owner in the restricted areas said that it appeared to be “just another ‘feel good’ program that doesn’t accomplish its stated goals.” And how do business owners and residents feel about the possibility that people with arrest warrants are allowed in after a hurricane?

matt_loder“We would be on property anyway, so I’m not concerned about people with arrest warrants coming on to the beach”, said Matt Loder, Sr. (pictured right). Loder is an owner of The Original Crabby Bill’s in Indian Rocks Beach.

“Also, convicted felons have rights, too, including the right to return to their homes, and those may be located on the barrier islands “, Loder said, echoing a similar and statement made independently by Gualtieri.

Asked if he had any constitutional or legal concerns involving those who do not qualify for permits, Loder said “at some point, you have to trust local government to do the right thing, particularly during a declared state of emergency. ”

The EAP permit hangs from the rearview mirror and is scanned as people reenter. No ID check is performed to insure that the permit holder is using the permit, leaving open the possibility that a stolen permit can be used to enter.

There are multiple security weaknesses in the EAP program, all of which call into question the program’s effectiveness. Our review found that once a permit has been issued, no “re-verification” is performed at a later date to insure that a person still qualifies for the permit. Former Indian Rocks Beach resident Pauly Jenkins said his PCSO-issued access permit had no expiration date, thereby confirming that also former residents like Jenkins are allowed entry.

weidnerMatthew Weidner (pictured right)  is a St. Pete attorney who took on and prevailed over Florida Governor Rick Scott in a high-profile public records lawsuit last year. He has also successfully represented home owners in foreclosure cases. Weidner is one of several “consumer justice attorneys” at his firm.

When provided details of the EAP program Weidner said “we all need to consider the unintended consequences that unnecessarily (and unconstitutionally) prohibiting reentry would have.”

Weidner’s comments highlight the fact that the United States Supreme Court sets very a very high bar called the “strict scrutiny standard” for any infringement of rights secured by the 1st amendment to the US Constitution. Those rights include freedom of the press, freedom of religion and “the right of the people peaceably to assemble.”

 Weidner wondered if the program would “make some residents less likely to respect mandatory evacuation orders. Citizens need to carefully consider the very real and practical problems posed by implementation of programs like the EAP.”

“Our interest is ensuring public safety and orderly reentry and I believe that is what the residents want”, Gualtieri said in his written statement. “I am confident what we will do in the event of an evacuation and reentry is legal and constitutional.”

king_bill_of_rights_cartoonDespite Gualtieri’s statement that his agency “will not further respond”, we asked Gualtieri where his “confidence” in the  legality and constitutionality of the EAP program derived from. Specifically, had his General Counsel (PCSO’s top lawyer) or some other legal authority concluded that the EAP program was “legal and constitutional”?

Gualtieri responded “I am a lawyer and I understand the constitutional standards very well. There is no constitutional issue.”

In any legal review, both the US and Florida Constitutions have to be considered as well as applicable laws. In this formal legal opinion, the Florida Attorney General’s office stated in 2004 that all of the requirements of the Florida Sunshine Law still apply during a declared state of emergency. Elected officials are thus required to give notice of meetings they have, and to make sure that those meetings open to the public.

The Attorney General’s reasoning stems from the fact that the Florida Constitution guarantees every person, not just Florida residents, the right to attend open and noticed (announced) meetings. Even during a declared state of emergency.

“I don’t really know enough about the EAP program to comment”, said St. Pete businesswoman and activist Barbara Haselden. Haselden is best known for heading up the No Tax For Tracks effort in 2014 and  has sparred with Gualtieri over other constitutional issues, notably Gualtieri’s opposition to any form of open handgun carry.

Haselden advocates for limited open carry for concealed weapons licensees, citing the fact that open carry is allowed in 45 other states as on argument in favor. During a declared state of emergency, Florida Statutes (790.01 3(b) to be exact) expressly allows anyone to carry a concealed firearm or other weapon “while in the act of evacuating during a mandatory evacuation order.” Law-abiding citizens and those with criminal intentions should be aware of this right.

St. Petersburg resident John Shaw (pictured right) is a retired army officer and a retired 10-year Monroe County Sheriff’s deputy. Monroe County consists of the Florida Keys. Shaw does not like the idea of having a citizen roster maintained by law enforcement agencies. “It might make life easier for law enforcement, but that doesn’t make it constitutional”, Shaw said.

According to Shaw, who retired as a Sheriff’s deputy in 2002, in the Keys you prove your residency and receive one of three re-entry decals depending on you live. However, the Sheriff’s office does not record your personal information when issuing the decals.

New decals were issued every few years, thereby providing for a de facto expiration pf decals. The Florida Keys still uses the decal system Shaw described, although the Guardian in in the process of finding out if any of its operation has changed.

Shaw said that if he was sheriff, he would have sought a legal opinion, but that it doesn’t bother him that Gualtieri didn’t. “He’s an attorney, and so he has in fact obtained a legal opinion, namely his own”, Shaw said. “But the program is problematic because PCSO requires a photo ID to obtain an EAP permit, as well as your registration in their database. If people can vote without having to show photo ID, then they should be able to get an EAP permit without having to show photo ID.”

“I understand all the issues from a law enforcement and public safety viewpoint: preventing crime (particularly looting), limited trafficability of the roads, not wanting to have to assist gawkers who get flat tires or injure themselves by going in to areas they shouldn’t have”, Shaw said “but the re-entry system needs to be properly organized.”

When asked about Gualtieri’s  statement characterizing inquiries into the EAP program as unfounded, Shaw said “the public and press have a right to question policies or procedures of any law enforcement agency, or department thereof, in a non-emergency situation. That’s the right time to do it. Once there is an emergency, then the public must trust the authorities to be acting in their best interest and wait until  after the emergency.”

Gualtieri stated that those who do not qualify for EAP permit but “have a need to be on the beaches” will be let in.  It appears that sheriff’s deputies will decide, at their sole discretion, whether a citizen has that “need”. It’s not clear that citizen watchdogs or activists would be found to have that “need”, so we turned to one such activist for comments.

devin_hDevin Henderson (pictured right) is a 28-year old Pinellas Park resident and activist who would not qualify for an EAP permit.  “State tax dollars would be spent out there to rebuild after a hurricane, and I have a Florida Constitutional right to be part of that entire decision process”, Henderson said.

When asked about the absence of any written legal opinion on the EAP program, Henderson said “it bothers me a lot, because it seems to me that the EAP program violates every portion of the 1st amendment, including the right to petition government. How can I petition them about what they’re doing  if I can’t see what they’re doing?”

“What if I was a blogger and wanted to report back to my community so that they can learn for their benefit”, Henderson said. “It seems I’ve grown up at a time when the Constitution almost doesn’t matter anymore, and the government acts as it please while I’m only able to act by permission. I’m not comfortable having a Sheriff’s deputy deciding whether I ‘need to be on the beaches’ after they’ve said it’s safe to reenter.”

“Hillsborough County does not have an EAP program”, according to Hillsborough County Sheriff’s Office spokesman Larry McKinnon. “Evacuation and re-entry is pursuant to the emergency management ordinance (county code sections 22-19 through 22-30).”

McKinnon (pictured right) referred any questions about post-hurricane reentry to the Hillsborough County Attorney’s Office and the City of Tampa. We inquired with the Tampa Mayor Buckhorn’s office about whether any kind of “special protection” was provided for Davis Islands or Harbour Island. Despite being given over two full business days, our inquiry had not been answered at the time of publication of this article.

The Guardian isn’t the only news outlet being straight-armed by Buckhorn’s office. Just two days ago, Noah Pransky of WTSP 10 News investigative team sardonically remarked that “once again, Buckhorn’s office ignored requests for an interview on the subject.” Pransky was reporting that the city was still issuing tickets after their red light camera contract with their vendor had expired.

“I will say it one more time……the permit is NOT required. You don’t seem to be understanding that the permit is not required”, Gualtieri wrote the Guardian. His statement conflicts with PCSO’s April 2015 news release about the EAP program, which we referenced in our e-mail to the PCSO. That official news release says:

“The program requires residents of the barrier islands to obtain a free Sheriff’s Office Emergency Access Permit to re-enter an evacuated area.”

In addition, PCSO’s own “Emergency Access Permit” page on May 28th continued to say that “Emergency Access Permits will be required to re-enter an evacuated area.” The underlining of the text is theirs, not ours, and the emphasis was added in March or April of 2015, after the page was first captured by an independent 3rd party 15 months ago.

PCSO is thus simultaneously telling citizens that permits are “required” and “NOT required”, a situation which may cause confusion. And it appears it already has. In our next article in this series, we show that the confusion extends beyond PCSO to other government agencies, fifteen months after PCSO’s EAP program was first announced.

In their oaths of office, all Florida sheriff’s deputies swear to “support, protect and defend the Constitution and Government of the United States, and of the State of Florida.” Whether enforcement of the  EAP program violates that oath of a office is a question that may only be decided should someone be arrested for challenging the EAP program. Such an arrest would come at a time when deputies are busy tending to other more pressing and urgent matters.

In the 1959 US Supreme Court case of Spano v. New York, Chief Justice Earl Warren wrote of the “deep-rooted feeling that the police must obey the law while enforcing the law; that, in the end, life and liberty can be as much endangered.”

Post-hurricane reentry presents thorny issues such as balancing public safety and property crime prevention against freedom of movement for all citizens, freedom of the press in this world of the “everyman journalist”, and fundamental liberty.

As always, the Guardian reports and the readers decide.

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In or next article on the EAP program, we explore the confusion among local government about how the EAP program functions, and hear the reentry experience of someone who lived through Katrina. Only by quick action after Hurrricane Katrina was she and her husband able to rescue their waterfront home from demolition.

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