[Airwolf]

http://www.sun-sentinel.com/sports/columnists/sfl-mayo04feb04.story

In canker war, common sense becomes a casualty

Michael Mayo
February 4, 2003

Tom Cowart and Denise Orr never liked their grapefruit tree that much. So when the state said it was infected with citrus canker and the cutting crew came to remove it in December 2000, they didn't protest.

"I was really nice to them," Cowart said. "I even gave them sodas."

But when a crew came to take their tangerine tree last February, things weren't so cordial.

Cowart asked for a search warrant. The cutters said they didn't need one.

Cowart told them to get off his property. They said they didn't have to.

A tense standoff ensued on the front lawn of Cowart's Fort Lauderdale home, with Florida Department of Agriculture officials and Broward Sheriff's Office deputies being summoned. It ended with Cowart pepper-sprayed, pinned to the ground by three officers and arrested.

"They put him in the back of the cruiser, made him sit there for something like three hours," said Judy Budinger, a neighbor who witnessed the events and whose husband, Gene, photographed them. "They didn't leave until the crew had cut the tree down to its stump and put it through the grinder."

Cowart spent the night in jail, charged with resisting arrest without violence and obstructing justice.

"Over a citrus tree," Cowart said. "My neighbors were like, `Tom, I can't believe what they did to you.' It's like something out of a Stephen King novel."

His nightmare isn't over. A judge dismissed the two misdemeanor charges in November, but the state has filed a motion to reinstate them. A hearing is scheduled for Feb. 13 before Judge Ginger Lerner-Wren.

The war on citrus canker drags on. Common sense has been a casualty.

That this case got to this point shows how emotional the fight has become.

Many South Florida homeowners say they don't trust the Department of Agriculture and its ham-handed campaign to eradicate a disease whose threat might be overstated. State officials say South Florida homeowners are naive and don't realize how serious a threat the disease is to the citrus industry.

Cowart declined previous offers to have the charges basically dropped, because he sees this as a matter of principle. He feels as if the state trampled on his rights, even if his tree was infected.
"The way they marched onto my property, you'd think they owned it," said Cowart, 50, a fence contractor.

Jim Facciolo, Cowart's attorney, said, "I don't know that there's a citrus canker exemption to the U.S. Constitution. Even if everything the state says is factually correct and the tree was infected, there's no reason why the Department of Agriculture couldn't get a search warrant."

Mark Fagan, a Department of Agriculture spokesman, said state law mandated an infected tree's removal, even without a search warrant or the owner's consent. "We'd be breaking the law if we didn't remove the tree," he said.

At the time, the state's policy of removing "exposed" trees within 1,900 feet of infected trees had been halted by a court order.

Fagan was called to the scene last Feb. 7 and witnessed the confrontation. He said there have been only a handful of arrests in connection with the eradication program, which began in early 2000, and Cowart's might have been the first involving pepper spray.

"He became very argumentative," Fagan said. "It took three officers to bring him down. He's a big guy."

"They had no right to do that to me," Cowart said. "I was on my property. It was pretty Gestapo-like."

According to the arrest report filed by sheriff's Deputy Armando Enrique, Cowart was "making threats at Department of Agriculture" employees. But Cowart said he never threatened anyone.

"I didn't hear any threats," Budinger said. "All I heard him say was, `Where's your warrant?' and `If you don't have a warrant, get off my property.'"

In her November ruling dismissing the charges, Judge Lerner-Wren wrote: "The Fourth Amendment to the United States Constitution ... does not allow the warrantless entry into property by the Department [of Agriculture]."

Cowart said he didn't fully understand the circumstances that put his tangerine tree on the cutting block. He said he received a report on Jan. 3, 2002, indicating his tree had canker, but he never saw an inspector take a leaf sample.

"I didn't consent to anything," Cowart said. "The tree looked the same as it always did for the last 10 years. It was loaded with fruit."

Fagan said Cowart had received an "immediate final order" in January notifying him that the tree had tested positive for canker and was subject to removal after 10 days.

Cowart said he received the order on Jan. 14, but it said he had 30 days to fight it. He said his girlfriend called the state's canker hotline a week later to request a pathology report. He said the report didn't come before the cutting crew did.

Fagan said the Jan. 3 report was the pathology report and that he "tried to explain it to [Cowart] in layman's terms" on the day of his arrest.

Cowart said nothing was clearly explained that day.

"Fagan was running around like King Kong, saying, `We're going to cut your tree down.' I'm a reasonable guy. I've complied with this before. If he just said, `Here's the pathology report, your tree's infected and we have a warrant to remove it,' I would have felt like I'd exhausted all my legal options."

Said Budinger: "They could have easily had a conversation instead of a confrontation and come back another day."

The battle goes on.

[DeltaElite]

Hmmmmmm, without a warrant, they shouldn't have been there. IMHO
No exigent circumstances, it's a tree. :rolleyes:

Needs to get a lawyer and address the 4th amendment issue.

[Standing Wolf]

I believe the Fourth Amendment is in as much jeopardy as the Second—and by the same leftist extremist types.

[hammer4nc]

Hmmm...seems there is quite an ongoing fight in Florida, over citrus canker eradication, and search warrants - here's a good overview:
http://southflorida.bizjournals.com/southflorida/stories/2002/12/02/daily83.html

The latest court ruling is in favor of state tree cutters needing warrants (unless I'm missing a more recent update?) But the issue is being argued and appealed up and down the court system.

"Electronic signatures" on warrants...now thats a novel concept!! Something as seemingly mundane as crop disease control, could end up seting legal precedent for search warrant protocol on private property!

Strange!

*EDIT* Oops...Apparently another court overturned the previous injunction, on 1-15-03, now warrantless tree-cutting has been declared constitutional again. See link: http://www.tcpalm.com/tcp/local_business/article/0,1651,TCP_1012_1713538,00.html

[John G]

Did I miss why he was pepper-sprayed?

[Airwolf]

Pepper spray?

Cowart spent the night in jail, charged with resisting arrest without violence and obstructing justice.

Oh, so resisting without violence is sufficent cause now to get hosed.

And people wonder why some of us don't trust cops anymore? :rolleyes:

[Double Naught Spy]

If the condition of the tree is publically visible, then the tree cutters would not have needed a search warrant. Cops don't need a search warrant if they spot a bag of dope on the seat next to a driver of a car they stopped as it was in plain view. Now whether or not the cutters had the authority to destroy the tree or if it was an illegal siezure is another matter.

I am inclined to believe that the title of this thread is wholly inaccurate. The guy did NOT go to jail for defending his property. No doubt he failed to heed the directives of the officers.

[DeltaElite]

Cars are very different from land. The comparison is not valid.
Cars have an exception to the 4th due to their mobile nature.

There is a huge difference between seizing contraband and destroying private property.
Of course, I bet they are citing exigency due to the possible spread of the disease.
The tree was not illegal, it was allegedly afflicted by this disease.
Are these guys JBTC's? Jack Booted Tree Cutters? :neener:


As for the pepper spray issue.
Most force models place pepper spray on par with physical restraint.
Cops are being taught to use it rather than engaging in a wrestling match or fist fight, causes fewer injuries to all parties involved and prevents a gun from being snatched by an angry person.
So more people are being sprayed and less are getting smacked with a baton.
Yes, you can spray someone who is being only verbally defiant to being arrested, instead of getting into a wrestling match with them.

Carry on. :D

[EJ]

It probably wasn't a search -- in legal terms-
Either plain view--
or previous plain view when they were there before with permission to remove the other tree--

Exigency is a stretch -- but maybe--

The resisting may or may not be justified-- You'ld have to have been there or have better info--

That said--
It is an example of our continuing loss of freedoms--
If a tree is that "exigently" dangerous -- than ANY firearm is a hell of a lot more dangerous--

We got problems boys--
Based on a general attitude of governmnentalauthority--

[Airwolf]

That's a very interesting insight on the use of pepper spray.

If I don't acquiesce to an officers orders, even with no threat or violence associated, there is a possibility that I could sprayed even before any physical contact was made on their part. This, of course, would come down to the cops word vs. mine (unless video taped).

Interesting, very interesting tidbit to file away.

I wonder what it will take for this country to realize the Law Enforcement mentality (in many cases just another term for “I was just following orders") is one of the things driving us over the edge.

Things were so much better when they were Peace Officers and operated from a base of morality and common sense, rather than law books and politics.

[DadOfThree]

"I didn't hear any threats," Budinger said. "All I heard him say was, `Where's your warrant?' and `If you don't have a warrant, get off my property.'"
The audacity of some people :rolleyes: Who does he think he is? A citizen????

[standingbear]

oh my gosh....the rododendrun bush just lost a limb and the apple tree is infested with rodents.quick,cover it before the dept of ag sees it.

[Kahr carrier]

Yikes:what:

[M1911]

If I don't acquiesce to an officers orders, even with no threat or violence associated, there is a possibility that I could sprayed even before any physical contact was made on their part. This, of course, would come down to the cops word vs. mine (unless video taped).If you don't cooperate with a police officer's orders, then he's going to make you comply. In terms of the force continuum, he'll start with command voice. If that doesn't work, he's going to have to use some sort of physical force to get you to comply. And OC spray is less likely to injure you (and him) than if he starts to wrestle with you.

OC spray is pretty painful, but it's unlikely to cause you permanent injury.

[2nd Amendment]

So once again, Johnny Law shows up on private property and the Citizen is supposed to simply lay down and play dead. God I am so sick of hearing this police state crap.

[DeltaElite]

It seems more peaceful to me to pepper spray someone who is resisting arrest than to get into a wrestling match with them or beating them with my baton.
Pepper spray rarely causes any permanent damage, batons do frequently.
Frankly, I hate pepper spray and would rather use other means.

Again we are basing our opinions of the incident upon a newspaper account.
Who really knows how it went down, but I still think the whole tree epidemic is silly at best.

[ojibweindian]

Where's CMichael? I'd like to see what he has to say concerning this. No one is losing their rights? Tell me another fish story.

[Dan Goe]

If the landowner did not have Due Process a "hearing" then you can sue them I believe under the 14th Amendment of the U.S. Constitution. Please consult a Civil Rights Attorney,

And you can open a big can of worms if you get class action status.

If you can find others that have not been treated like all others then you can say you were unfairly treated "Equal Justice"

Document your case heavily and let the documents do the talking.
If you can get video of any taking and use that also.

Dont get mad..... :fire:

Get even .... :neener:

[standingbear]

<borg alien voice in background>"you will be assimulated..resistance is futile..comply..comply...(sprayyyy)"

[Matthew Courtney]

If you don't cooperate with a police officer's orders, then he's going to make you comply. In terms of the force continuum, he'll start with command voice. If that doesn't work, he's going to have to use some sort of physical force to get you to comply. And OC spray is less likely to injure you (and him) than if he starts to wrestle with you.

The police officer's orders were illegal, as the state did not have a search/seizure warrant. Force used to require compliance with an illegal order is always excessive.

[Mike Irwin]

Supreme Court has, I believe, ruled on substantially similar cases regarding trees and plants susceptible to infectious diseases back in the 1970s, and possibly back as far as the 1930s/40s.

I'm not certain, but I think uniformly the rulings have gone against the property owners.

[Mike Irwin]

Delta,

I believe the "plain view search" aspect would apply, wouldn't it?

If the police can clearly see a violation from a public street, they don't need a warrant to investigate...

Very interesting stuff.

[CZ-75]

Something I hear no one mentioning is compensation.

The govt. may have a right to cut down the tree, with proper due process, such as a warrant.

When, though, do they have a right to seize or damage property without offering suitable compensation?

[Mike Irwin]

Compensation is addressed in the article in the South Florida Business Journal, which is linked in one of the first messages. The compensation issue is before another court.

Just finished reading the article.

Wow. Pretty weird stuff.

[41mag M&P]

Mike, according the the story there was no visual evidence the tree was infected."I didn't consent to anything," Cowart said. "The tree looked the same as it always did for the last 10 years. It was loaded with fruit."

[Mike Irwin]

"no visual evidence that the tree was infected..."

From what I'm reading, that's not a consideration in this issue, any tree within 1,900 feet of a known infected tree is considered to be infected and subject to removal.

[Matthew Courtney]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The states actions here violate both the 4th and 5th amendments. No one is argueing that the state lacked the lawful authority to seize the tree. What is being argued is that the state failed to comply with the necessary requirements to exercise that authority. As the states agents came to the home intent on destroying the tree, there was nothing prohibiting them from getting a seizure warrant first. It is not at all comparable to a patrol officer who sees someone smoking a joint.

After seizing the tree with a warrant, the state still needs to afford its owner a hearing before destroying the tree, depriving the owner of his property.

States routinely get away with disregarding the constitution in civil matters because they are only subject to lawsuits that they agree to be subject to. The only time a state stands to lose something when it violates your constitutional rights is when you are a criminal defendant. Then, the state is often prohibited from using illegally obtained evidence against you. Even in the most flagrant cases, a state cannot be held liable for money damages unless it agrees to be responsible.

[Matthew Courtney]

After doing more research, it appears that Florida is at least attempting to comply with the 4th and 5th amendments.

County wide search (and presumably seizure) warrants had been issued authorizing the destruction of citrus trees within 1900 feet of one known to be infected.

Department of Agriculture rules seem to provide for an administrative hearing within 30 days if the landowner makes a written request for one within 10 days of recieving the destruction order. A landowners failure to timely request the administrative hearing renders the destruction order immediately enforcable.

3 issues

1. County wide search and seizure orders? No precedent for that. Pretty big stretch and a very dangerous idea!

2. Why didn't the guys coming to cut the tree have the warrant? That would probably have prevented any problem.

3. Why is the burden of requesting a hearing put on the landowner? He should have been served notice of a hearing, and the matter should have proceeded from there. The state seems to be taking advantage of peoples ignorance of obscure procedeures designed to deprive due process, rather than provide it.

[EJ]

Just wait and see what it's like if and when they start lookin' for GUNS!:uhoh:

[CZ-75]

From what I'm reading, that's not a consideration in this issue, any tree within 1,900 feet of a known infected tree is considered to be infected and subject to removal.

Pretty broad brush.

Do you think most commercial citrus groves are exempt?

Seems like someone's entire acreage could be chopped if the definition provided is correct. Doesn't sound like the citrus growers would like that much.

[Mike Irwin]

I agree, it's an extremely broad brush. I'd like to see the scientific evidence that says that the 1,900 foot extermination zone is warranted, or whether it's just a WAG zone.

And the point of this entire endeavor appears to be to keep the disease from reaching the commercial groves.

From what I can tell in reading what's on the web, though, the disease hasn't hit any commercial groves yet.

I guarantee you, though, having grown up in an area that has a lot of poultry production and which was hit by avian influenza some years ago, if there's an outbreak of this in a commercial grove the state is probably going to move very hard and very fast to contain it before it spreads.

[Coronach]

Hmmm.

I have no idea about citrus trees, canker, or the state of citrus case law. Methinks that something is amiss here, but just because the tree owner says "oh, the tree is fine" doesn't make it fine. I agree that this sounds like something that should be addressed respecting the 4th Amendment. As in, if the Citrus People want to come onto your property without permission, they would need a judge to sign off on it.

As to this particular case, there must be SOME current understanding between the Aggies and the local police in reference to the authority of the Aggies to go onto private property. Once the department is officially satisfied of their authority to do so, the deputies are going to back the local Agriculture Officials in the performance of their duties.

If a deputy hears a homeowner make a threat, or observes him take a threatening action, that is an arrestable offense...and it goes down as a standard arrest from there, complete with use-of-force continuum and everything.

If the homeowner had decided to solve this the proper way, in court, things would have ended a lot better for him.

Mike

[Matthew Courtney]

The homeowner did act properly. He asked to see the warrant. The agents of the state wrongly said that they did not need a warrant and caused the homeowner to submit through force. It was the agents of the state who chose to use force rather than use the proper avenue of the courts. That is not merely my opinion or interpretation, that is the opinion of the Florida judge who heard the case.

[Coronach]

I'll agree (already have, in fact) that such situations should be done by court order. The proper venue for resolving such differences of opinion as this is in a court of law. As it turns out, from the Judge's decision, the State was likely in the wrong. Had he opted to fight it there, in court, he would be in the same position as he is now, absent the mace, arrest, criminal charge and defense attorney fees.

This is analagous to a police officer engaging in a warrantless search. If you think the cop is incorrect, do you resist at the scene and get arrested or do you file a lawsuit and get rich?

Everyone will agree that violations of the law and the Constitution ought not occur, but not everyone can agree about what constitutes a violation of same. This is why we have a court system and lawyers.

Mike

[Matthew Courtney]

The man took a stand based on his principles. As he engaged in no violence over a relatively trivial matter, that is commendable. It is not always about money and convience, sometimes it is about principle. If the United States lacked a history of brave men willing to stand on principle alone, we would likely lack a history.

[Coronach]

As he engaged in no violence over a relatively trivial matter, that is commendable.No, that is an assumption. ;)

We're in agreement that the way the State is (apparently) going about it is incorrect. If you want to cut down a tree on my land, I would want the supporting paperwork to be a court order, not an arbitrary ruling by some petty bureaucrat. But I would fight it (again, on principle) in court...where I can actually get redress of my grievances.

And if you don't want to get a fat settlement, thats fine. Take recompense for the lost tree and ALL associated costs (legal, time off work, travel, what have you), and know that you walked away a winner.

Yes, its a shame you would have to go to the bother of having to fight something like this in court. However, it is even more of a shame to have to get engaged in a physical altercation over the same issue. You want to fight? Fight in the proper venue. It is also the only place where you can win.

Mike

[Matthew Courtney]

He was arrested for resisting without violence. It was agents of the state introduced force to the situation.

[Coronach]

Oh! You were a witness, then? I'm sorry, tell us what else you saw.

Mike ;)

[Matthew Courtney]

Public record.

[Coronach]

Explain, please? If you refer to the news report, sorry, that does not pass muster. I have witnessed how poorly reports are written when I, personally, know the facts of a matter. This is the main reason why I refuse to engage in after-action-review-by-news-report.

Mike

[John G]

We're all going on the information given. Right now all we have is this article, right? Is there any evidence that the man used force while resisting arrest?

[Coronach]

Thats the problem, John. All we have is this article, unless Mr. Courtney has access to something else. In my experience people are not maced during an arrest unless they offer resistance. Of course, some deputy could have just randomly maced him, presumably for the fun of it ( :rolleyes: ). However, I think it far more likely that he resisted. And yes, I am playing the odds on that.

Mike

[Matthew Courtney]

Several media sources say that he was arrested for resisting without violence. They typically get this directly from booking logs. As I have never heard of a case where police under charge someone who is violent towards them, I rationally infer that he did not use violence. My wife is a former Assistant States Attorney who has defended several civil suits brought because officers followed the SOP of using mace when a subject failed to follow verbal commands. Failure to follow lawful verbal commands is resisting arrest and does justify the use of mace. All such suits handled by my wife were successfully defended as the officer's commands were legal. In this case, the judge effectively ruled that the commands were not legal as they were given without a warrant in a situation that required one.

In any case, there is ample evidence that leads us to conclude that the homeowner did not use violence. There is no evidence that inplies that he did.

[Coronach]

Several media sources say that he was arrested for resisting without violence.Define, please? If a suspect begins to pull away, he is indeed resisting, but is not being violent, per se. He is, however, fair game for mace, grounding techniques or possibly open hand strike techniques. All of this is per MY use of force continuum, however, not nececssaarily the one they are using. Ours, however, is pretty standard.

Note that there is a difference between passive and active resistance. If someone is passively resisting (as in, not following your commands, but not pulling away or trying to evade), WE are not cleared for the abovementioned techniques, generally speaking. THEY may...I dunno.

I'm positing that they attempted to arrest him, laid hands on him, and he tried to pull away or otherwise actively resisted.

They typically get this directly from booking logs. As I have never heard of a case where police under charge someone who is violent towards them, I rationally infer that he did not use violence.See aboveMy wife is a former Assistant States Attorney who has defended several civil suits brought because officers followed the SOP of using mace when a subject failed to follow verbal commands. Failure to follow lawful verbal commands is resisting arrest and does justify the use of mace. All such suits handled by my wife were successfully defended as the officer's commands were legal. In this case, the judge effectively ruled that the commands were not legal as they were given without a warrant in a situation that required one.OK, this is pretty standard, even if a blanket policy allowing mace to be used w/o active resistance is unfamiliar to me. In order to be successfully charged with resisting arrest, the arrest must be legal. OK, so the arrest was found by this judge to be illict, based upon the need for a warrant. However, this argument is circular...up until this point the Agriculture Dept had been doing this sans warrant, apparently. This look s like it would be the first case in which a judge has ruled that a warrant would be required. So they would have no reason to believe that their arrest would be illegal. Actually, if the arrest was, in fact, for issuing the threat, it may not even matter at all.

All this will depend upon the specifics of the case and Florida case law, which is unknown to me. Too many variables to argue. The basic gist of it is this...every time a new law comes out or a change in policy occurs, you have to wait for the case law to decide what is gonna fly and what is not. Yes, it would be nice for everyone to automatically be on the same page and have the same views of the Constitution. We, however, exist in reality.


In any case, there is ample evidence that leads us to conclude that the homeowner did not use violence. There is no evidence that implies that he did.There is none to imply that he did not, either. However, why was he arrested? Issuing a threat of violence to an individual in the presence of a LEO. Not very bright.

Again, the fact remains...if he had contested this in court, he would be EXACTLY where he is now...a judge ruling that doing this without a warrant was unconstitutional. Without the added pain of being arrested and maced.

Mike

[John G]

Hold on, you're getting ahead of me. He was arrested for "Issuing a threat of violence to an individual in the presence of a LEO"? I missed that. Is this in the article, or can you provide a link?

Thanks!

[Coronach]

According to the arrest report filed by sheriff's Deputy Armando Enrique, Cowart was "making threats at Department of Agriculture" employees. But Cowart said he never threatened anyone.I'm ASSUMING (something I dislike doing with news reports) that the reason it was mentioned in the arrest report is because it supplied some of the PC to arrest him (read: he was arrested for threatening harm to the Aggies). But, as I've said before, placing your money on some reporter getting the details straight is a sucker bet. And yes, I added the 'of violence' to the end of it...its the only thing that makes sense. Threaten to sue gets you arrested? Eh...no.

Mike

[John G]

Good point. I see it now. The truth is, his tree is gone, he got sprayed. The best he can hope for now, is to get some money.

Ahh, "justice."

[Coronach]

This is my point exactly. When you end up at that juncture, the tree is gone. Nothing you do at the scene, at that moment, is going to change that. Doesn't make it right, but it is still a fact. You will end up fighting the battle in court, and hopefully you will prevail and get money for your loss and expenditure, and maybe even a nice punitive settlement that 1. enriches you and 2. takes a nice chunk out of the Agency that did that to you as a lesson not to do it again. If you feel bad about taking money for yourself, thats fine...pay your bills and give the rest of it to the NRA or GOA. ;)

The Deputies are there to keep the peace and allow the Aggies to engage in what, up until the point that the judge put pen to paper, was APPARENTLY a process that was thought to be legal by all involved. And unless things are done WAY differently down there, the Legal Advisors for the Ag Department and the SO would have conflabbed about it and determined that The Way of Things was proper and correct.

Of course, the beauty of our system is that the Executive doesn't get to decide this for itself, as the Judge just showed them. Thats the way the system works...and if the landowner had not, allegedly, threatened the workers, he would have been the Test Case that got this thing turned around...without getting arrested and hosed.

Mike

[publius]

I live on a small FL orange grove, which my family has owned for two decades.

Couple of things you all may not know:

Most FL oranges are grown for juice. A skin disease really doesn't matter, except to the extent that it causes fruit to drop early.

Brazil is the 900 lb gorilla of the international orange market. They have citrus canker all over the place. They don't even really try to control it. It's just considered a cost of doing business, or, as the local orange farmers would say, "One a them thangs."

So is government regulation or government confiscation. I think I'd rather take my chances with the canker. Any government effort which is vigorous enough to actually contain it will probably cause more collateral damage than it prevents.