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August 1, 2021 Letters



Have you read the First District Court of Appeals’ decision in Green v. Alachua County? Green held that a person has a right of privacy not to be “forced” to mask the face in a public place — even to avert the risks of a deadly once-in-a century pandemic — in the absence of a compelling state interest.

This was the court’s reading of the Florida Constitution’s guarantee that “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life….”

How masking up with everyone else doing business in public places is an “intrusion” into one’s “private life,” the court did not explain. Had the regulation been to remove masks during a pandemic before doing business in banks, as in the movies’ Old West, a reasonable person might object, but not this.

The court worked magic on the Florida constitutional right of privacy. In a trice it transmogrified the “right to be let alone” in private life into a right to be “stupidly obnoxious in public.”


Read the Local Rules

C.R. Bard, Inc., and related corporations made IVC filters. The IVC is a vein that returns blood to the heart from the lower body. Bard’s IVC filter was an implant made to catch blood clots. In a multidistrict litigation proceeding (MDL) centered in Arizona, the Bard defendants were sued for allegedly defective filters that caused the plaintiffs to suffer serious injury or death.

The lawsuit of Denise and Carmelo Ocasio, Ocasio v. C.R. Bard, Inc., No. 8:13-cv-1962-CEH-AEP, 2021 WL 24477259 (M.D. Fla. June 17, 2021), was remanded to the Middle District of Florida for trial, but not before the federal court in Arizona entered a stipulated protective order that the parties wrote in the MDL.

In the Middle District of Florida, plaintiff Denise Ocasio and the defendants filed unopposed motions to seal a total of 53 deposition transcripts between them. Their unopposed motions were denied. Of the three major lessons from Judge Charlene Honeywell’s opinion, this was the first: Read the local rules!

Four of the seven counsel of record were from outside of Florida. They wrote that the parties had agreed to a protective order in the MDL. As the court pointed out, M.D. Fla. Local Rule 1.11(a) expressly provides that sealing is not authorized by a stipulation.

The second ground for denying the parties’ motions to seal was that the parties intended to read or play the videotapes of these depositions at the public trial. When that happened, the testimony would no longer be kept confidential from anyone attending the trial.

The third and final ground delivered the practice pointer that applies to practitioners at all experience levels. The defendants made an impermissible “blanket statement” that sealing all the depositions completely would be the best way of keeping them secret, and they did not “show why redaction of the depositions would not be a narrower means.”Ocasio, 2021 WL 2477259, at *2 (emphasis added).

The presumption of public access to court records always requires a showing that alternatives to complete sealing are not available.

Winter Springs

Second Amendment

I write to respond to the “Second Amendment” letter of July written by Elizabeth J. Barber.

It is an obvious emotional appeal to stop violence. As Benjamin Franklin said, “emotion governs, and she never governs wisely.” I understand frustration with such murder, but her focus is on a thing, and not an action.

The author refers to a “privilege” of owning firearms. Such a statement is contrary to fact. Keeping and bearing firearms is a right, guaranteed by the “social contract” (which is a trendy way of saying the Constitution) entered into at the very start of this country. When this country was established, specific rights were recognized, such as freedom of speech and the right to keep and bear arms, among others. Some argue that free speech is inviolate, but the right to keep and bear arms is not. Such a position allows one to cherry pick which amendment should be protected, and which may be chipped away legislatively.

There are about 1,200 gun control laws on the books in the states. Firearm (legal) ownership is tightly regulated. It may be instructive to take a historical perspective so as to be able to focus on a cause and effect, and, hence, a solution.

Firearm ownership was not controlled in any significant way until the late 1920s. One was able to purchase a Thompson submachine gun (Tommy gun) from the Sears catalogue. It was expensive, but was an excellent home defense weapon. Firearms have not been a problem until our lifetime. What changed? People changed. And, what changed people?

An interesting statistic is that 85% of prison inmates come from homes where a father is absent. Here are some more statistics from The National Center for Fathering.

• 63% of youth suicides are from fatherless homes (U.S. Dept. of Health/Census) — five times the average.

• 90% of all homeless and runaway children are from fatherless homes — 32 times the average.

• 85% of all children who show behavior disorders come from fatherless homes — 20 times the average. (Center for Disease Control)

• 80% of rapists with anger problems come from fatherless homes — 14 times the average. (Justice & Behavior, Vol. 14, p. 403-26)

• 71% of all high school dropouts come from fatherless homes — Nine times the average. (National Principals Association Report)

• 75% of all adolescent patients in chemical abuse centers come from fatherless homes — 10 times the average.

The problem is not now, nor was it ever, “guns.” The problem is, in part, and hence the solution, is, in part, the home, and the presence of fathers in a child’s life.

Before World War I, the army taught marksmanship using standard round targets. During that war, the intentional “miss” rate was about 60%, in other words, the shooter intentionally missed, because of the abhorrence to taking another’s life. After WWI, the army changed to using human silhouettes as targets for practice. During World War II, the intentional miss rate dropped dramatically because the shooter was “desensitized” to shooting at humans. Now, look at a video game, and see what children now are accustomed to. Are you starting to see what part of the real problem is?

If you want to see, for yourself, the actual problem, watch the series “The First 48 Hours,” which journalizes police investigations in major cities, dealing with homicides. The callousness of the killers is simply astounding. The problem is their attitude toward killing, and the devaluation of human life. Lastly, the legislatures must increase penalties, and the courts (and prosecutors) must increase prosecution. Juvenile criminal behavior is criminal behavior, even more so with a firearm. There should be no consideration of age where a firearm is used or illegally carried.

The communities, in many instances, bear part of the “blame,” in that the communities do not assist the police in locating and capturing criminals. The communities are “afraid” of these criminals, but the reason young criminals grow up to be older, more hardened criminals, is because of the community acquiescence to earlier, albeit lesser, criminal behavior.

If you want different results, you have to address the problem, and not just “do something.” Crying out for more legislation, which will do absolutely nothing other than to disarm innocent potential victims, and does nothing to address the problem, or the root causes of the problem, which are, actually, plain to see…if you want to see them.

Dade City

In reference to Elizabeth J. Barber’s July letter to the News: The rights enumerated in the Bill of Rights are not “privileges” as she twice refers to them in her letter, they are rights. The Constitution does not grant those rights, they are inalienable human rights, and the Constitution forbids the government from abridging those human rights.

Lake Wales

This and That

An American and especially a lawyer should know that the first 10 amendments to the U.S. Constitution are known collectively by a common name. That name is decidedly not the “Bill of Privileges.”

And I must point out that Justice Breyer himself sent a letter to Speaker Pelosi and Majority Leader Schumer stating that the Court does not need any more justices.

Sun City Center

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