By Dan Christensen, FloridaBulldog.org
The chief investigator for the Broward Public Defender’s Office sued Fort Lauderdale last week alleging that a city policeman impermissibly obtained his driver’s license records while he was helping the FBI investigate police corruption in the city.
The federal civil action is the second since September to accuse police in Broward of using their otherwise legitimate access to a confidential law enforcement database to commit privacy violations against members of the Public Defender’s Office.
The incidents spurred Broward Public Defender Howard Finkelstein to ask the Florida Department of Motor Vehicles, which runs the database, to find out whether the license information of any other staff attorneys, investigators or administrators has been improperly checked. The DMV has not yet responded.
“We’re concerned,” said Finkelstein. “Clearly, the police had no legitimate reason to do this.”
Last week’s lawsuit was filed by Allen Smith, a 26-year veteran of the Fort Lauderdale Police Department who joined the Public Defender’s Office as an investigator in 1997. It alleges that in 2011, while Smith was assisting federal agents in their corruption probe, the FBI put his name on a watch list to be notified if his name was run through any government databases.
On Nov. 29, 2011, the FBI notified Smith that Fort Lauderdale Officer James Wood had accessed his records through the DMV’s Driver and Vehicle Information Database.
“Plaintiff was later informed that his driver’s license photograph was printed and used as a target on a dart board in the Fort Lauderdale police station,” says the nine-page complaint.
Smith, who the lawsuit says has never been arrested or stopped and ticketed while driving in the city, was made to “feel at risk as if he is subject to law enforcement scrutiny as a result of his work on police corruption investigations.”
Smith reported the matter to the State Attorney’s Office. In June 2012, prosecutor Stefanie Newman declined to prosecute. Her close-out memo says that while there was evidence that Wood exceeded his authority by obtaining Smith’s records for “personal reasons,” there “is no indication he disseminated that information in violation” of criminal statutes.
The department’s Internal Affairs division also cleared Wood, a decision later accepted without much probing by Fort Lauderdale’s Citizens Police Review Board, a body staffed by city Internal Affairs detectives and governed by a nine-member board that includes three city officers.
Officer Wood, who is not a named defendant in Smith’s lawsuit, did not respond to a request for comment passed through the department’s media relations office. The City Attorney’s Office also did not return a phone call seeking comment.
In separate interviews, both Finkelstein and Smith said the FBI approached the Public Defender’s Office in 2011 for assistance as the bureau was establishing an anti-corruption unit in Broward.
“We were asked by them to furnish information we had in our files,” said Smith. “Knowing police officers the way I do, I told them that if it got out I was working with the FBI, my name and personal identification information would be checked so I asked to be put on an alert list. Two weeks later was when it was run.”
Smith said he ultimately gave the FBI “half a box full of stuff” regarding incidents of apparent police corruption in Broward.
What did the FBI do with that information? What is the status and scope of the FBI’s previously unreported police corruption investigation?
Smith doesn’t know. “You know how the feds are. You feed them, but they don’t give you any snacks in return,” he said.
FBI Special Agent Richard Stout, who met with Finkelstein and Smith, did not respond to a detailed voicemail message requesting comment.
Smith’s complaint, assigned to U.S. District Judge James Cohn, contends that the city violated the federal Driver’s Privacy Protection Act (DPPA), passed in response to the 1989 murder of television actress Rebecca Schaeffer by a crazed fan who obtained her address from the California Department of Motor Vehicles. It asserts that police obtained Smith’s records “without any permissible purpose for doing so.”
The suit seeks a declaration that the city broke federal law regarding the disclosure of personal information, and an order prohibiting the city from future violations. Also sought: liquidated damages of $2,500 per violation and unspecified punitive damages.
Assistant Public Defender Molly Caroline McCrae filed a class-action lawsuit citing the Driver’s Privacy Protection Act against both Fort Lauderdale and the Broward Sheriff’s Office this fall. She has the same lawyers that Smith does, Paul Kunz of Miami and Michael L. Greenwald of Boca Raton.
McCrae has been a public defender since 2009, handling homicide and other cases. According to her complaint, she has never been arrested or stopped while driving and has no reason to believe she is the focus of any criminal investigation.
However, after becoming concerned that her motor vehicle records may have been inappropriately accessed, McCrae asked the DMV to check. She got back a list showing that three law enforcement officers from Fort Lauderdale and BSO obtained her records four times in 2011 and 2012. The suit identifies those cases and policemen as:
- Fort Lauderdale Officer Ethan Hodge obtained McCrae’s records on Sept. 17, 2011, ten days after she subpoenaed him to appear for a deposition in a third-degree felony case in which she was representing the defendant.
- Broward Sheriff’s Deputy Ronald Cusumano obtained McCrae’s records on Nov. 3, 2011. At the time, Cusumano was listed as a witness in another third-degree felony case in which McCrae was the defense lawyer.
- Broward Sheriff’s Deputy Anthony Lucca got McCrae’s motor vehicle records twice on Aug. 24, 2012.
The police actions to obtain her motor vehicle records “in violation of the DPPA” made McCrae, like Smith, “feel at risk and as if she is subject to law enforcement scrutiny as a result of her work as a public defender.”
Citing “repeated efforts” of police to improperly access McCrae’s motor vehicle records, the lawsuit contends that city officers and county deputies “routinely obtain private motor vehicle records of Broward County public defenders, without consent and without a permissible purpose for doing so.”
The proposed class in McCrae’s lawsuit: all current and former employees of the Public Defender’s Office whose motor vehicle records were obtained from Sept. 11, 2011 through Sept. 11, 2015 by an officer or deputy who got a subpoena or notice to testify.
Neither the Fort Lauderdale Police nor the Broward Sheriff’s Office responded to requests for comment about McCrae’s case.