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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 00-_______________________________________
DONATO DALRYMPLE,
Plaintiff,
vs.
JANET RENO,
in her personal capacity,
and
DORIS MEISSNER,
in her personal capacity,
and
ERIC HOLDER,
in his personal capacity,
Defendants.
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COMPLAINT
Plaintiff, Donato Dalrymple, by counsel, hereby sues Attorney General Janet Reno, Immigration and Naturalization Service Commissioner Doris Meissner and Deputy Attorney General Eric Holder, in their personal capacities, for violating Plaintiff's constitutional rights while acting
under color of federal law. As grounds therefor, Plaintiff alleges as follows:
INTRODUCTION
1. This is an action for violation of the Fourth and Fifth Amendments to the United States Constitution.
PARTIES
2. Plaintiff Donato Dalrymple is a citizen of the State of Florida.
3. Defendant Janet Reno is a citizen of the State of Florida and currently resides at 425 8th Street, N.W., Washington, D.C., 20004. Defendant Reno is Attorney General of the United States. She is being sued in her personal capacity.
4. Defendant Doris Meissner is a citizen of the State of Maryland and resides at 4619 Derussey Parkway, Chevy Chase, Maryland, 20815. Defendant Meissner is Commissioner of the Immigration and Naturalization Service ("INS"). She is being sued in her personal capacity.
5. Defendant Eric Holder is a citizen of the District of Columbia and resides at 4246 50th Street, N.W., Washington, D.C., 20016. Defendant Holder is Deputy Attorney General of the United States. He is being sued in his personal capacity.
JURISDICTION AND VENUE
6. The Court has jurisdiction over this action under 28 U.S.C. õ 1331, as this action arises under the Constitution of the United States.
7. Venue is proper under 28 U.S.C. õ1391(b), as a substantial part of the events and omissions giving rise to Plaintiff's claims occurred in this judicial district.
FACTS
8. On November 25, 1999, Plaintiff found Elian Gonzalez, a six-year old boy from Cuba, adrift in the sea off the coast of Fort Lauderdale, Florida. Three days earlier, Elian, his mother, step-father and eight other persons had fled Cuba's communist regime in a small boat, seeking freedom and the promise of a better life in the United States. The boat capsized, and Elian's mother, step-father and six other passengers drowned. Plaintiff, who had accompanied his cousin on a fishing trip, pulled Elian from the sea as he clung to an innertube. They contacted the U.S. Coast Guard, who took Elian to shore.
9. After being treated for dehydration and sun exposure at Hollywood Memorial Hospital, the INS paroled Elian into the United States, without inspection, and released him into the custody of his great-uncle, Lazaro Gonzalez, a resident of Miami, Florida.
10. Lazaro Gonzalez subsequently filed a petition with the INS seeking political asylum for Elian. Elian also filed his own asylum petition.
11. On January 5, 2000, INS Commissioner Meissner determined that Elian's request for political asylum would not be considered, claiming that Elian's natural father, acting through the Cuban Foreign Ministry, purportedly sought the boy's return to Cuba.
12. On January 7, 2000, Lazaro Gonzalez filed a petition in the Circuit of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida ("Miami-Dade Circuit Court") seeking temporary custody of Elian.
13. On January 10, 2000, the Miami-Dade County Circuit Court entered a Temporary Protective Order granting Lazaro Gonzalez temporary custody pending service of process on Elian's natural father and a full hearing.
14. On January 12, 2000, Attorney General Reno upheld Meissner's decision refusing to consider Elian's petition for asylum.
15. Elian proceeded to challenge the refusal to consider his asylum petition by filing a civil action in the U.S. District Court for the Southern District of Florida, Gonzalez v. Reno, et al., Case No. 00-0206-CIV-MOORE. When the District Court upheld this refusal to even consider Elian's asylum petition, Elian took an immediate appeal to the U.S. Court of Appeals for the Eleventh Circuit ("Eleventh Circuit").
16. During the pendency of the appeal, Reno, Meissner and various other persons cooperating with the Cuban communist government, including Gregory Craig, one of President William Jefferson Clinton's personal lawyers, arranged for Elian's natural father to travel to the United States to take custody of Elian and to thwart the boy's attempts to obtain political asylum in the United States.
17. Upon his arrival in the United States on or about April 6, 2000, Elian's natural father took up residence at a location in Bethesda, Maryland occupied and controlled by the Cuban Interests Section, the representative of Cuba's communist government in the United States. At all relevant times, Elian's natural father remained under the control of the Cuban Interests Section, which is cloaked with diplomatic immunity.
18. On April 12, 2000, six days after the arrival of Elian's natural father in the United States, the INS directed Lazaro Gonzalez to take the boy to Opa Locka Airport in Miami-Dade County, Florida the following day. The INS sought to transfer custody of Elian to his natural father.
19. In a letter to Lazaro Gonzalez that same day, the INS admitted it was ordering "successive transfers of custody" only, not revoking Elian's parole into the United States: "At that time, the parole of Elian into your care will be revoked, and care of Elian will be temporarily transferred to [INS Official Rosa R. Urquiola], who will bring Elian to Washington, D.C. Once Elian has arrived in Washington, D.C., he will be paroled into the care of his father."
20. On April 13, 2000, the Miami-Dade County Circuit Court dismissed Lazaro Gonzalez' petition, vacating the temporary custody of Elian previously granted by that Court.
21. In an April 14, 2000 letter to Lazaro Gonzalez, the INS again admitted that Elian's parole into the United States was not being revoked, but that the INS merely sought to transfer temporary custody of Elian: "Moreover, you are holding Elian without the consent of his father and without the consent of the Immigration and Naturalization Service, Elian's current legal custodian under the immigration laws."
22. At no point was Elian's presence in the United States contrary to U.S. immigration laws. The INS only sought to transfer temporary custody of Elian while he remained in the United States.
23. On Wednesday, April 19, 2000, the Eleventh Circuit entered an injunction pending disposition of Elian's appeal. The Eleventh Circuit injunction explicitly stated:
(1) Plaintiff, Elian Gonzalez, is ENJOINED from departing or attempting to depart from the United States;
(2) Any and all persons acting for, on behalf of, or in concert with Plaintiff, Elian Gonzalez, are ENJOINED from aiding or assisting, or attempting to aid or assist, in the removal of Plaintiff from the United States;
(3) All officers, agents, and employees of the United States, including but not limited to officers, agents, and employees of the United States Department of Justice, are ENJOINED to take such reasonable and lawful measures as necessary to prevent the removal of Plaintiff, Elian Gonzalez, from the United States.
See Gonzalez v. Reno, No. 00-11424-D, slip op. at 15-16 (11th Cir. April 19, 2000). Reno, Meissner and Holder undoubtedly were aware of and knowledgeable about the Eleventh Circuit's injunction, or should have been aware of and knowledgeable about the Eleventh Circuit's injunction.
24. The following day, Lazaro Gonzalez, acting through attorneys Kendall Coffey, Manny Diaz and Jose Garcia-Pedrosa, and with the assistance of several mediators, including Aaron Podhurst, a well-respected Miami lawyer and longtime friend of Reno, and Edward T. Foote, II, President of the University of Miami, among others, began engaging in what they believed were good faith negotiations with Reno, Meissner and Holder to try to reach a mutually agreeable, peaceful transfer of temporary custody of Elian. By the end of the afternoon, the parties had prepared a list of six points to serve as the outline for an agreement. The mediators also briefed several leaders of the Cuban-American community in Miami about the potential agreement.
25. Despite their willingness to engage in what the Gonzalez family believed were good faith negotiations, the INS secretly issued an arrest warrant for Elian on Friday, April 21, 2000. The arrest warrant falsely claimed that Elian "is within the country in violation of the immigration laws and is therefore liable to be taken into custody as authorized by section 236 of the Immigration and Nationality Act [codified at 8 U.S.C. õ 1226]." Again, however, at no point was Elian in the United States contrary to U.S. immigration laws. His parole into the United States had never been revoked, and the Eleventh Circuit had explicitly enjoined him from leaving the United States.
26. In addition, 8 U.S.C. õ 1226, the purported authority by which the INS issued the arrest warrant, only allows the INS to issue arrest warrants for the purpose of placing aliens in removal proceedings. The statute states, in pertinent part: "On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." See 8 U.S.C. õ 1226. The immigration laws do not authorize the arrest of a minor for the purpose of transferring custody, temporary or otherwise, and, again, the Eleventh Circuit had explicitly enjoined the removal of Elian from the United States. Thus, not only was the arrest warrant contrary to law, but its issuance was in direct contravention of the Eleventh Circuit's injunction.
27. Moreover, according to Richard Sharpstein, one of Miami's best regarded criminal-defense and immigration lawyers, the INS never arrests Cuban aliens without evidence that they have committed a crime. This restraint on the part of the INS is consistent with the Cuban Adjustment Act of 1966, which makes Cuban nationals eligible for U.S. citizenship once they have been in the United States for one year.
28. On information and belief, Reno, Meissner and Holder were familiar with, and knowledgeable about, immigration laws and the practice of issuing INS administrative arrest warrants, as well as the Eleventh Circuit's injunction, and thus knew or should have known that the arrest warrant was false and invalid.
29. On information and belief, Reno, Meissner and Holder directed that the arrest warrant be issued, or were knowledgeable about and agreed to and/or acquiesced in its issuance to provide a false legal pretext for a raid on Lazaro Gonzalez' home that they were planning jointly.
30. Also on April 21, 2000, and again despite engaging in on-going negotiations, through mediators Podhurst and Foote, with the Gonzalez family, the INS applied for a search warrant to enter the Gonzalez family's home and search for Elian pursuant to Rule 41(b)(4) of the Federal Rules of Criminal Procedure, a provision designed to assist federal law enforcement agents in retrieving kidnaping victims. The INS also sought and obtained a motion to seal its application.
31. The INS' application for a search warrant and supporting affidavit falsely claimed that Elian was being unlawfully restrained and was the subject of an INS administrative arrest warrant, among other demonstrably false statements.
32. Not only was the arrest warrant for Elian demonstrably false and invalid, but at no time was Elian ever "unlawfully restrained" by the Gonzalez family in Miami. Only days earlier, Reno herself admitted that, since Elian's arrival in the United States, Lazaro Gonzalez and his family "have acted as loving caregivers." Elian attended school, visited Disney World, went to the circus, played outside, and engaged in all the normal activities of a six year old. Elian met with his Cuban grandmothers in Miami Beach, Florida, and was receiving psychological care to help him cope with the tragic death of his mother. Elian himself had publicly stated that he wished to remain in the United States with the Gonzalez family and not return to Cuba with his natural father. He was not the victim of kidnaping.
33. Moreover, in granting the injunction on April 19, 2000, the Eleventh Circuit had found that "Lazaro [Gonzalez's] interests, to say the least, are not obviously hostile to [Elian's] interests" and expressly declined to order Lazaro Gonzalez to present Elian to the INS for transfer of care to his natural father. See Gonzalez v. Reno, No. 00-11424-D, slip op. at 14 & 15 n. 16 (11th Cir. April 19, 2000).
34. The application and supporting affidavit also falsely claimed that the INS had revoked Elian's parole and that his remaining in the United States was a violation of the law. Again, the INS had not revoked Elian's parole, but only sought to transfer temporary custody of Elian, and the Eleventh Circuit had explicitly ordered Elian to remain in the United States.
35. Conspicuously absent from the application and supporting affidavit was a copy of the Eleventh Circuit's April 19, 2000 order and injunction, although numerous other attachments and exhibits had been included.
36. The INS did admit in the affidavit, however, that it maintained daily surveillance of Lazaro Gonzalez' home. The affidavit made no reference to any weapons being in the home. It made no reference to any allegations of mistreatment or harm to Elian by the Gonzalez family.
37. The affidavit also made no reference to the fact that Podhurst, Foote and others were feverishly mediating negotiations with Reno, the Gonzalez family and their attorneys, even as the application and affidavit were being filed.
38. The INS did not present its application for a search warrant and supporting affidavit to the Hon. K. Michael Moore, the federal district judge who had presided over Elian's civil lawsuit challenging the INS' refusal to even consider his asylum petition. Rather, the INS waited until 7:00 p.m. on Good Friday, April 21, 2000, when a federal duty magistrate, a Clinton-appointee not familiar with the case and notoriously "pro-government" in his rulings, was available to hear warrant applications. The magistrate issued the search warrant at 7:20 p.m. that same day.
39. On information and belief, Reno, Meissner and Holder knew that the application for a search warrant and supporting affidavit contained false misrepresentations and omissions.
40. On information and belief, Reno, Meissner and Holder directed that the false application for a search warrant and supporting affidavit be submitted to the magistrate, or were knowledgeable about and agreed to and/or acquiesced in the submission of these false and misleading documents to the magistrate, in order to obtain a search warrant and thereby have a false legal pretext for a raid on Lazaro Gonzalez' home that they were planning jointly.
41. On information and belief, neither the mediators, the Gonzalez family, nor their attorneys were aware that Reno, Meissner and Holder had taken steps to obtain a search warrant and an arrest warrant for Elian, or had planned a raid on Lazaro Gonzalez' home. Rather, the mediators, Lazaro Gonzalez and his family, and their attorneys continued to believe that Reno, Meissner and Holder were negotiating with them in good faith.
42. By late afternoon on Good Friday, April 21, 2000, the group reportedly felt they had developed a workable agreement by which Elian, the Gonzalez family, Elian's natural father, and his family would take up temporary residence at a mutually-agreed upon, neutral site in Miami-Dade County until the resolution of all pending legal proceedings. Reno instructed the Gonzales family to put the proposal in writing and fax it to her office by 5:00 p.m. They did so at 4:52 p.m. Foote was so confident that a compromise was in the works that he went home to be with his family.
43. Podhurst reportedly called the Gonzalez family's home at 8:00 p.m. to say that Reno, Meissner and Holder were considering the offer, but wanted Elian to stay with his natural father throughout the reunion. Lazaro Gonzalez and his family wanted Elian to stay with Lazaro Gonzalez' daughter, Marisleysis Gonzalez.
44. By 9:00 p.m., Reno's office reportedly had sent the proposal to Elian's natural father and his attorney, Gregory Craig. Lazaro Gonzalez reportedly agreed to let Elian decide who he would stay with during the reunion.
45. Reno reportedly was giving hourly updates to White House Chief of Staff John Podesta on the status of the negotiations. Podesta relayed one optimistic update to President Clinton at 8:30 p.m.
46. But at 2:00 a.m., Podhurst called to the family to say the Reno was insisting that the reunion take place in a privately run retreat in Washington's Virginia suburbs.
47. According to White House Spokesman Joe Lockhart, Podesta updated President Clinton again at 2:15 a.m., relaying word that Reno still felt the negotiations held promise.
48. Reno was negotiating from a small, private office at the U.S. Department of Justice's headquarters in Washington, D.C., surrounded by about a dozen people, including Meissner and Holder.
49. The Gonzalez' family reportedly felt the reunion site was not as important as its request to speak to Elian's natural father alone. The mediators reportedly believed that an accord had been reached.
50. At approximately 4:00 a.m., however, Reno reportedly told the Gonzalez family lawyers, who were negotiating with the family from inside the Gonzalez family's home, that time was running out. The family reportedly asked for a little more time to think through Reno's latest proposal.
51. Before ordering the raid to seize Elian at gunpoint, Reno reportedly polled the officials negotiating with her at the Justice Department, including Meissner and Holder about whether to proceed with the raid. Reno reportedly pointed to each one in turn and asked for their thoughts. Everyone, including Meissner and Holder, reportedly agreed to commence the raid. According to Holder, Reno then gave the order to commence the raid and seize Elian by force. Meissner reportedly walked into the next room and telephoned her chief of staff, Mike Betraft, who was waiting at the INS command center a half-mile away, to convey the order commencing the raid.
52. Shortly before 5:00 a.m., Reno reportedly telephoned Podesta to inform The White House of the decision to commence the raid.
53. At approximately 5:05 a.m., two of the lawyers for Lazaro Gonzalez' family, Kendall Coffey and Manny Diaz, as well as Marisleysis Gonzalez, called Podhurst on a speaker phone in the Gonzalez family's dining room. They asked Podhurst if he had any news from Reno. Podhurst put Marisleysis Gonzalez and the family's lawyers on hold and reportedly called Reno.
54. At approximately 5:15 a.m, as the Gonzalez family and their lawyers were on hold with Podhurst, who in turn was speaking with Reno, a convoy of vehicles containing federal agents dressed in combat gear and armed with semiautomatic weapons drove up to the home. Other INS agents approached the house from the rear.
55. Acting at the direction of Reno, and with the knowledge, agreement, approval, and/or acquiescence of Meissner and Holder, a total of 151 heavily-armed federal agents, consisting of 131 INS agents and 20 U.S. Marshals, commenced a paramilitary assault on a private home to transfer of custody of a six-year old boy living openly with members of his own family, who Reno herself had described only days earlier as "loving caregivers."
56. The raid had been carefully-planned and rehearsed for nearly two weeks. According to Grover Joseph Reese, a former general counsel of the INS from 1991 to 1993:
The raid employed counterterrorist tactics usually used in hostage situations. These included the predawn hours, the use of obscenities and of violence against inanimate objects to intimidate and disorient the actual targets, and the fabrication of an imminent breakthrough in negotiations just before the extraction team moved in.
See Grover Joseph Reese, "Rule of Reno," The Wall Street Journal, April 25, 2000.
57. Upon nearing the house, federal agents doused news crews assembled opposite the house with pepper spray. Federal agents also doused pepper spray on approximately 30 peaceful supporters of Elian and the Gonzalez family who had assembled behind a barricade nearby. Federal agents sprayed pepper spray outside the rear of the home as well, and used pepper spray throughout the raid. Pepper spray wafted into the Gonzalez family's home and reportedly was used inside the home as itself.
58. "Freeze! Don't move! Stay Back!," the federal agents reportedly yelled at everyone in front of the house.
59. Agents had already scaled the wooden fence behind the Gonzalez house, freezing everyone in the yard. "Down or I'll shoot you," federal agents reportedly said in English, repeating the command in Spanish.
60. Mario Miranda, a former Miami police officer and head of security for the Cuban American National Foundation, was knocked down by federal agents, who forced him to spread his arms and legs. One agent doused him with pepper spray while a second agent racked his shotgun and pushed it against Miranda's right ear. "I could not think," Miranda reportedly recalled. "I could not move." Tony Zumbado, an NBC cameraman, was doused with pepper spray and brutally attacked as he tried to film the raid.
61. Gonzalez family spokesman Armando Gutierrez had been in back of the house when he heard the federal agents approaching. Gutierrez ran to the front of the house to allow Associated Press photographer Alan Diaz to enter through the front door.
62. After Diaz had entered family's home, federal agents approached the house with a battering ram and used it to break down the front door. Eight federal agents were suddenly inside.
63. Plaintiff, who had rescued Elian from the sea on Thanksgiving Day and had spent much time in the Gonzalez home, had been sleeping on a couch in the front foyer when the raid began. Not knowing what was happening, he ran into the living room and scooped Elian off the couch.
64. "I was on the sofa dead asleep. What I heard sounded like foot soldiers," Plaintiff recalled. "I jumped up. I got him into my arms. He was screaming 'Help me Help me, Que Pasa, Que Pasa?"
65. Plaintiff carried Elian into the rear bedroom shared by Lazaro Gonzales and his wife, Angela Gonzales. Photographer Diaz, Elian's 5-year-old cousin Lazaro Martell and his mother also ran into the room. Someone closed the bedroom door.
66. In the living room, one federal agent pointed a machine gun at Marisleysis Gonzalez' chest. Another federal agent aimed his gun at Lazaro Gonzalez' head. Other agents aimed guns at attorneys Kendall Coffey and Manny Diaz, who stood frozen in the dining room.
67. "Don't do this!" Marisleysis reportedly screamed, her arms outstretched. "Don't let him see this! I'll give you the boy! Please put the guns down! I'll get the boy up!" "We had no warning that the marshals were coming. We were on the phone negotiating. They took him screaming and crying," Marisleysis complained later.
68. Agents searched the house for Elian, flipping over tables, breaking more doors and religious artifacts. Elian was not in his room. "Give me the f--ing boy or I'll shoot," Marisleysis quoted one agent as saying.
69. In the rear bedroom, Plaintiff, holding the boy in his arms, tried to hide in a tiny closet, but the closet was packed with boxes and clothes and there was no space. Federal agents kicked the door open, splitting it in half. The top half swung on its hinges while the bottom half fell to the floor.
70. "I took his head and buried it into my shoulder . . . There was nowhere to go," Plaintiff recalled.
71. "Give me the boy," yelled one federal agent, pointing a 9mm Heckler & Koch submachine gun at Plaintiff as he hugged Elian to his chest.
72. Federal agents told Diaz to stay back, but he kept snapping pictures. His is the photograph, attached as Exhibit 1 and incorporated by reference, that was quickly broadcast around the world.
73. INS Agent Betty A. Mills, reportedly packing a holstered pistol, entered the room with a blanket and grabbed Elian from Plaintiff's arms.
74. The federal agents backed out of the room with Elian -- their guns still trained on everyone, including 5 year-old Lazaro Martell.
75. Elian screamed for Marisleysis. "Prima Mari! Prima Mari!," Elian yelled. "Cousin Mari! Cousin Mari!"
76. Plaintiff begged: "Please Oh God! Don't take the child!"
77. The agents didn't answer him. Other agents yelled. The whole raid took exactly two minutes and 34 seconds.
78. At 5:30 a.m. Reno telephoned Podesta to tell him the raid had gone off "without a hitch." Podesta rang his boss upstairs. "The president was pleased," Lockhart said later.
79. At a subsequent press conference, Reno admitted that she ordered the raid: "I commenced [the] operation. . . ." "I gave the go-ahead for the operation . . . ."
80. Reno also made clear that the only independent authority given to the federal agents on the scene was the precise timing of the raid: "Law enforcement personnel were on the scene, were authorized to and did make the final call as to when to enter the Gonzalez home, because this was a very carefully timed law enforcement operation."
81. As a proximate result of the raid, Plaintiff has suffered substantial damages, including physical injuries resulting from the use of pepper spray during the raid, fear for his life and liberty, pain, suffering, sleeplessness, emotional distress, and loss of reputation, among others damages.
COUNT I
(Fourth Amendment Violations)
82. Plaintiff realleges paragraphs 1 through 81 as if fully set forth herein.
83. Plaintiff enjoys the right to be absolutely free from unreasonable searches and seizures, including but not limited to seizures of his person, as guaranteed by the Fourth Amendment to the United States Constitution.
84. Defendants, acting under color of federal authority, personally directed and caused a raid on the Gonzalez family's home, and/or had actual knowledge of, agreed to, approved of and/or acquiesced in a raid conducted in such a manner as to impose substantial and complete restrictions on Plaintiff's liberty of movement and otherwise resulted in Plaintiff being restrained by use of physical force and show of authority, without probable cause or other legal justification.
85. The actions of the federal agents, under the personal direction of Defendants, and/or with the knowledge, agreement, approval and/or acquiescence of Defendants, directly and foreseeably resulted in the unlawful and unreasonable seizure of Plaintiff's person and employed clearly excessive and unreasonable force under the circumstances, in violation of Plaintiff's Fourth Amendment.
86. Defendants acted maliciously, willfully, and knowingly, and with specific intent to deprive Plaintiff of his constitutional rights, and/or with deliberate indifference to Plaintiff's constitutional rights.
87. As a direct and proximate result of the violation of Plaintiff's constitutional rights, Plaintiff suffered substantial damages.
WHEREFORE, Plaintiff demands judgment be entered against Defendants, jointly and severally, including an award of compensatory damages, punitive damages, reasonable attorneys fees, pre-judgment interest, post-judgment interest, costs in excess of $100,000,000.00, and such other relief as the Court deems just and proper.
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