Senate Bill sb0478c2

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    Florida Senate - 2003                     CS for CS for SB 478

    By the Committees on Criminal Justice; Comprehensive Planning;
    and Senators Posey, Argenziano, Fasano and Smith




    307-2016-03

  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  

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    Florida Senate - 2003                     CS for CS for SB 478
    307-2016-03




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

 2  "officer" means any law enforcement officer, correctional

 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 any officer

21  in any criminal action commenced against any officer in any

22  court if the employing agency determines that the officer's

23  actions 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 believed had perpetrated, or

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    Florida Senate - 2003                     CS for CS for SB 478
    307-2016-03




 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 actions 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.

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18  The officer may request the employing agency to reimburse

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

20  giving rise to the charge did not result in the entry of a

21  plea of guilty or nolo contendere, or in a finding of guilt by

22  a court or jury to any offense charged or any lesser or

23  included offense that is substantially related to the offense

24  charged.

25         (b)  If legal representation is provided in accordance

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

27  and costs shall be determined as follows:

28         1.  The officer shall submit an application for payment

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

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

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

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    Florida Senate - 2003                     CS for CS for SB 478
    307-2016-03




 1  days after the application for payment. The officer may only

 2  apply for attorney's fees and costs incurred in the actual

 3  defense of the prosecution of criminal charges, and the

 4  officer is not entitled to seek or collect attorney's fees and

 5  costs related to efforts to collect attorney's fees and costs

 6  under this section.

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

 8  costs must include an itemization statement, from an attorney

 9  or expert witness representing or appearing in behalf of the

10  officer, stating the actual time expended and the rate at

11  which fees and other expenses were computed.

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

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

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

15  shall submit the application to the court having jurisdiction

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

17  an agreement or 30 days after conclusion of the prosecution

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

19  retain jurisdiction of the matter in order to determine

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

21  fees and costs.

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

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

24  employing agency shall have the right to respond to the

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

26  make its determination as to entitlement and amount of

27  reasonable attorney's fees and costs based on:

28         a.  Prevailing market rates in the appropriate market

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

30  factors; and

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    Florida Senate - 2003                     CS for CS for SB 478
    307-2016-03




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

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

 3         (c)  A lodestar or fee multiplier provision may not be

 4  used in any criminal prosecution defended pursuant to this

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

 6  exceed $100,000.

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

 8  law.

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10          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
11                            CS/SB 478

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13  The CS amends the bill to prevent an officer from seeking or
    collecting attorney's fees and costs incurred related to
14  efforts to collect the attorney's fees and costs authorized by
    the bill.
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