Senate Bill sb0478

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                   SB 478

    By Senator Posey





    24-465A-03

  1                      A bill to be entitled

  2         An act relating to actions against law

  3         enforcement officers; providing a short title;

  4         amending s. 111.065, F.S.; redefining the term

  5         "law enforcement officer" for purposes of the

  6         payment of costs and attorney's fees in certain

  7         actions commenced against a law enforcement

  8         officer; revising circumstances under which the

  9         employing agency of a law enforcement officer

10         has the option of paying legal costs and

11         attorney's fees in an action arising out of the

12         officer's official duties; requiring that an

13         officer's employing agency pay legal costs and

14         attorney's fees under certain circumstances

15         involving an emergency, imminent death or

16         bodily harm, or the pursuit or apprehension of

17         an offender; providing for jurisdiction

18         relating to legal costs and attorney's fees;

19         providing certain limitations of the amount

20         awarded; providing an effective date.

21  

22  Be It Enacted by the Legislature of the State of Florida:

23  

24         Section 1.  This act may be cited as the "Law

25  Enforcement Fair Defense Act."

26         Section 2.  Section 111.065, Florida Statutes, is

27  amended to read:

28         111.065  Law enforcement officers, civil or criminal

29  action against; employer payment of costs and attorney's

30  fees.--

31  

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                   SB 478
    24-465A-03




 1         (1)  For the purpose of this section act, the term

 2  "officer" means any law enforcement officer, corrections

 3  officer, or correctional probation officer as defined in s.

 4  943.10(1), (2), or (3), who is "law enforcement officer" means

 5  any person employed full time by any municipality or the state

 6  or any political subdivision thereof or any deputy sheriff

 7  whose primary responsibility is the prevention and detection

 8  of crime or the enforcement of the penal, traffic, or highway

 9  laws of this state.

10         (2)  The employing agency of any law enforcement

11  officer has shall have the option to pay the legal costs and

12  reasonable attorney's fees and costs for any law enforcement

13  officer in any civil or criminal action commenced against such

14  law enforcement officer in any court when the action arose out

15  of the performance of the officer's official duties and:

16         (a)  The plaintiff requests dismissal of the suit; or

17         (b)  The Such law enforcement officer is found to be

18  not liable or not guilty.

19         (3)  The employing agency shall provide an attorney and

20  pay the reasonable attorney's fees and costs for an officer in

21  a criminal action commenced against an officer in any court if

22  the employing agency determines that the officer's actions

23  that gave rise to the charges:

24         (a)1.  Occurred in response to what the officer

25  reasonably believed was an emergency;

26         2.  Occurred when the officer reasonably believed that

27  his or her action was necessary to protect the officer or

28  others from imminent death or bodily harm; or

29         3.  Occurred in the course of the officer's fresh

30  pursuit, apprehension, or attempted apprehension of a suspect

31  whom the officer reasonably believes has perpetrated, or

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                   SB 478
    24-465A-03




 1  attempted to perpetrate, a forcible felony as defined in s.

 2  776.08 or the offense of escape;

 3         (b)  Arose within the course and scope of the officer's

 4  duties; and

 5         (c)  Were not acts of omission or commission which

 6  constituted a material departure from the employing agency's

 7  written policies and procedures, or generally recognized

 8  criminal justice standards if no written policies or

 9  procedures exist.

10         (4)(a)  In an action where legal representation is

11  requested pursuant to subsection (3) and the employing agency

12  does not provide an attorney or the officer does not use the

13  employing agency's attorney, the officer may:

14         1.  Select from a list of attorneys provided by the

15  employing agency; or

16         2.  Choose his or her own attorney.

17  

18  The officer may request the employing agency to reimburse

19  reasonable attorney's fees and costs if the officer meets the

20  requirements of paragraphs (3)(a), (b), and (c) and if the

21  officer's actions giving rise to the charge did not result in

22  a conviction for any offense charged or any lesser or included

23  offense that is substantially related to the offense charged.

24  The acceptance by a court of a plea of guilty or nolo

25  contendere, or a jury or court verdict of guilty, shall be

26  deemed a conviction for purposes of this section regardless of

27  whether guilt is adjudicated by the court.

28         (b)  If legal representation is provided in accordance

29  with paragraph (a), the amount of reasonable attorney's fees

30  and costs shall be determined as follows:

31  

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                   SB 478
    24-465A-03




 1         1.  The officer shall submit an application for payment

 2  of reasonable attorney's fees and costs to the employing

 3  agency and the employing agency and the officer must agree on

 4  a reasonable attorney's fee and costs to be paid within 30

 5  days after the application for payment.

 6         2.  The application for reasonable attorney's fees and

 7  costs must include an itemization statement from an attorney

 8  or expert witness representing or appearing in behalf of the

 9  officer stating the actual time expended and the rate at which

10  fees and other expenses were computed.

11         3.  If the officer and the employing agency do not

12  reach an agreement or payment is not provided within 30 days,

13  the officer requesting payment of attorney's fees and costs

14  shall submit the application to the court having jurisdiction

15  over the prosecution within 30 days after the failure to reach

16  an agreement or 30 days after conclusion of the prosecution

17  against the officer, whichever is later. Such court shall

18  retain jurisdiction of the matter in order to determine

19  entitlement to payment and the amount of reasonable attorney's

20  fees and costs.

21         4.  If no agreement is reached between the officer and

22  the employing agency as provided under subparagraph 3., the

23  employing agency shall have the right to respond to the

24  application for attorney's fees and costs. The court shall

25  make its determination as to entitlement and amount of

26  reasonable attorney's fees and costs based on:

27         a.  Prevailing market rates in the appropriate market

28  area for defense of similar actions, as well as other relevant

29  factors; and

30         b.  Whether the officer's actions complied with the

31  requirements of paragraphs (3)(a), (b), and (c).

                                  4

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2003                                   SB 478
    24-465A-03




 1         (d)  A lodestar or fee multiplier provision may not be

 2  used in any criminal prosecution defended pursuant to this

 3  subsection and the attorney's fees and costs awarded may not

 4  exceed $100,000.

 5         Section 3.  This act shall take effect upon becoming a

 6  law.

 7  

 8            *****************************************

 9                          SENATE SUMMARY

10    Requires that the employing agency of a law enforcement
      officer pay legal costs and attorney's fees in a criminal
11    action against the law enforcement agency if the action
      that gave rise to the charge occurred in response to an
12    emergency; was necessary to protect the officer or others
      from death or bodily harm; or occurred in the course of
13    fresh pursuit, apprehension, or attempted apprehension.
      Authorizes an officer to request reimbursement for
14    attorney's fees and costs from the employing agency.
      Provides for determining fees and costs. Prohibits the
15    use of a lodestar or fee multiplier. Limits the total
      amount of attorney's fees and costs to $100,000. (See
16    bill for details.)

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  5

CODING: Words stricken are deletions; words underlined are additions.