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HomeMy WebLinkAboutLetterBryant • Miller • Olive VIA HAND -DELIVERY Mayor Manuel A. Diaz City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Commissioner Marc Sarnoff City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Commissioner Tomas P. Regalado City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Dear Mayor & Commissioners: ATTORNEYS AT LAW February 19, 2009 Commissioner Angel Gonzalez City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Commissioner Joe M. Sanchez City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Commissioner Michelle Spence -Jones City of Miami City Hall 3500 Pan American Drive Miami, Florida 33133 You have asked for an analysis regarding whether the City has an option pursuant to Florida Statutes Section 111.065 to provide reimbursement for the legal defense costs incurred by a City police officer who was charged with a criminal offense. Stated briefly, we conclude the City need not provide such reimbursement. In formulating this analysis, relevant statutes, court decisions, and factual material provided by the City have been considered. Very briefly summarized, the facts are as follows. A City police sergeant became involved in a confrontation with a civilian while the sergeant was driving his marked City police car. The confrontation occurred in Broward County and not during the sergeant's working hours. The sergeant was charged with battery, but the case received a disposition of nolle Mayor & Commissioners February 19, 2009 Page2 prosequi from the Broward State Attorney's Office. The sergeant incurred attorney's fees and costs well in excess of $30,000.00 in defending himself. Florida Statutes Section 111.065 provides, in pertinent part: (2) The employing agency of any officer has the option to pay reasonable attorney's fees and costs for any officer in any civil or criminal action commenced against such officer in any court when the action arose out of the perfoiniance of the officer's official duties and: (a) The plaintiff requests dismissal of the suit; or (b) The officer is found to be not liable or not guilty. The key factor in this case under the statute is whether the legal action against which he defended himself "arose out of the performance of the officer's official duties." The case of Garcia v. City of Hollywood, 966 so 2d 5 (Fla. 4th DCA 2007), involved a police officer who struck a pedestrian while he was off duty and driving a take-home marked vehicle. The officer was driving from his home to the police station an hour earlier than normal to study for an exam. The court concluded that the officer was not in the process of carrying out a "primary responsibility" of his job as a police officer. He was off -duty and made a personal decision to go to work an hour early to study. That court cited to Palm Beach County Sheriffs Office v. Ginn, 570 So.2d 1059 (Fla. 1st DCA 1990), in which the court found that an off -duty deputy sheriff driving a marked vehicle, who was on a personal errand when he sustained an injury, was not considered to be carrying out his official duties. The Ginn court stated that although the deputy sheriff was prepared to be called to duty and was monitoring the police radio, he was not actually on duty when the accident occurred and, thus, he was not carrying out any primary responsibility. In State Department of Hialiwav Safety and Motor Vehicles v. Pipkin, 927 So.2d 901 (Fla. 3d DCA 2006), an off -duty Coral Gables police officer, who was in unifouii and driving a marked car, activated his lights and siren and pulled over Pipkin for driving erratically. The officer pulled over Pipkin because he crossed a "yellow line and failed to maintain a single lane." The stop occurred outside the City of Coral Gables. The court deteiniined that, because there was no evidence of conduct occurring within the City of Coral Gables that justified the stop, the stop was illegal and outside the officer's scope of employment. A police officer has no power to stop a person outside his territorial limits unless there are "exigent circumstances or the officer is in fresh pursuit." Id. In Johnson v. Metropolitan Dade County, 424 So.2d 911 (Fla. 1st DCA 1983), the court determined the ultimate question was whether an officer's employer imposed any duties or Mayor & Commissioners February 19, 2009 Page 3 obligations on the officer outside of his jurisdiction that would make the officer's employer responsible for injuries he sustained while performing those duties. The court in this workers' compensation case found that the officer was within the scope of his employment for purposes of workers' compensation on that basis and because there was a "Mutual Aid Emergency Force Plan" between Broward County and the Town of Pembroke Park (where the officer worked). In State v. Sobrino, 587 So.2d 1347 (Fla. 3d DCA 1991), the court found that, because the officer pulled over an individual outside his jurisdiction only for investigative purposes, did not intend to arrest the individual, and did not know whether a felony had been committed or not, the officer was not within his scope of employment and the stop was illegal. In the instant case, the City police sergeant was driving a marked City police car. The sergeant had kept the car in a location not authorized under City rules and regulations. The incident occurred during the sergeant's non -working hours. The incident occurred outside the officer's jurisdiction, i.e., outside the City. The sergeant alleged, in a sworn statement, that he did not stop the other person's vehicle, but was approached by the other person at a traffic signal where both cars had stopped for the light. While the sergeant alleged that he followed the vehicle to attempt to obtain its license number because of prior criminal activity in the area and because of the actions of the vehicle, he also stated that his stopping at the same light as the other vehicle was essentially coincidental. The other person involved disputed the sergeant's version of events. Accepting the sergeant's allegations as true, it is difficult to construe his actions as being performed within the scope of his duties under the authority cited above. He was far outside the City and not in fresh pursuit from within the City. There was no conduct within the City by the other person that violated law. The sergeant stated that, though the other driver approached him, he felt only somewhat threatened, that the incident lasted only seconds, that the other person retreated and he, the sergeant, attempted to stop him, and that there was no attempt at arrest and no significant physical contact. There was no emergency. These allegations do not suggest "exigent circumstances." Further, the sergeant was not on working hours. He was not in unifouni. He was not wearing a badge or other outward identification. His use of the police car was or was arguably in violation of procedures. According to him, he did not initiate the_ incident, so it could not have been pursuant to some free-floating, public safety jurisdictional authority. We are not aware of any mutual aid or other agreement between the City and Pembroke Pines, nor does the sergeant claim he was acting pursuant to such an agreement. The sergeant's actions, by his own account, do not even rise to the level of those of the officer in Sobrino, where the officer was found not to have acted within the scope of his duties. The sergeant's attorney asserts that he was on duty because he received a founial counseling because of his conduct. However, there are numerous rules applicable to City police during their non -working hours and receipt of discipline does not indicate anything about Mayor & Commissioners February 19, 2009 Page 4 whether the sergeant's conduct was within the scope of his duties. Certainly, it is not uncommon in various types of police cases for an officer to be found to have departed from the scope of his duties even when he was on duty and initially involved in the pursuit of official business. For all these reasons, I conclude that the sergeant in this case was not within the scope of his duties during the incident and, therefore, the legal action did not arise from the performance of his official duties. As such, I conclude that, under the plain language of Section 111.065, the City does not have the option of paying for the sergeant's legal fees and costs, even though the prosecution was dropped. Moreover, even if it were found that the sergeant were perfoiluing his official duties, the statute does not require the City to pay for his defense, but merely peuunits the City to do so if it so chooses. Whether the City might so choose, in an appropriate case, is beyond the scope of this letter. I trust this fully addresses your question. Very truly yours, BRYANT MILLER OLIVE -& N James C. Crosland