Florida Senate - 2017                                      SB 52
       By Senator Braynon
       35-00051-17                                             201752__
    1                        A bill to be entitled                      
    2         An act for the relief of Maury Hernandez; providing an
    3         appropriation to compensate him for injuries and
    4         damages sustained as a result of the alleged
    5         negligence of the Department of Corrections; providing
    6         legislative intent for the waiver of certain liens;
    7         providing a limitation on the payment of fees and
    8         costs; providing an effective date.
   10         WHEREAS, on August 6, 2007, at approximately 11:45 a.m.,
   11  Broward County Sheriff’s Office (BSO) Deputy Maury Hernandez,
   12  then 28 years of age, was operating a BSO-assigned vehicle, and
   13         WHEREAS, Deputy Hernandez observed David Maldonado, who was
   14  operating a motorcycle, run through three traffic lights on
   15  Pembroke Road in Pembroke Park, and
   16         WHEREAS, Deputy Hernandez followed Mr. Maldonado to a
   17  location in the 3700 block of Pembroke Road and, displaying his
   18  badge, approached Mr. Maldonado and identified himself as a
   19  deputy sheriff, and
   20         WHEREAS, Mr. Maldonado told Deputy Hernandez that he was a
   21  police officer from Opa-Locka, but then pushed Deputy Hernandez,
   22  jumped from his motorcycle, and ran, at which time Deputy
   23  Hernandez gave chase on foot, and
   24         WHEREAS, within seconds, Mr. Maldonado turned around and
   25  fired two shots from a .45 caliber handgun, striking Deputy
   26  Hernandez in the head with one of the bullets, and
   27         WHEREAS, Deputy Hernandez was rushed to Memorial Regional
   28  Hospital in Hollywood in critical condition, and
   29         WHEREAS, Mr. Maldonado was subsequently apprehended by
   30  Hollywood police in a nearby condominium complex after he
   31  attempted a carjacking, and
   32         WHEREAS, the BSO conducted an investigation that concluded
   33  that Mr. Maldonado should have been in jail at the time of the
   34  shooting because he was serving 2 years’ probation and had
   35  repeatedly violated the terms of his probation, but the
   36  Department of Corrections had failed to bring the violations to
   37  the attention of the State Attorney’s Office and the presiding
   38  circuit judge, and
   39         WHEREAS, the investigation found that on April 18, 2007,
   40  Mr. Maldonado, a habitual traffic offender, pled no contest to
   41  felony driving charges and was placed on probation for 24
   42  months, and
   43         WHEREAS, at that time, Mr. Maldonado had nearly 40 traffic
   44  and administrative violations, including reckless driving,
   45  speeding, and repeatedly driving without a license, and
   46         WHEREAS, Mr. Maldonado was advised in writing of the
   47  department’s zero-tolerance policy, which stated, “The
   48  Department of Corrections has a zero tolerance policy as to
   49  reporting violations of supervision conditions. This is
   50  notification to you that you are subject to violations
   51  proceeding, including arrest, if you are not in compliance with
   52  all conditions of supervision as required by the sentencing
   53  court or releasing authority,” and
   54         WHEREAS, under s. 948.03(1)(m)1., Florida Statutes, Mr.
   55  Maldonado was prohibited from possessing, carrying, or owning
   56  any firearm unless authorized by the court, and under s.
   57  948.03(1)(n), Florida Statutes, was banned from using
   58  intoxicants to excess or possessing any drugs or narcotics
   59  unless prescribed by a physician, and
   60         WHEREAS, the department had a nondiscretionary duty to
   61  report Mr. Maldonado’s violations of these laws to the assistant
   62  state attorney and presiding circuit judge without delay, and
   63         WHEREAS, Mr. Maldonado’s probation strictly prohibited him
   64  from carrying a weapon without a court order, from using alcohol
   65  in excess and prescription drugs that he had not been
   66  prescribed, and required him to complete and submit honest
   67  monthly reports to his probation officer, all of which he
   68  violated over the course of the 4 months before he shot Deputy
   69  Hernandez, and
   70         WHEREAS, the BSO investigation found that despite
   71  Maldonado’s admissions to carrying a weapon, his deceit
   72  concerning the place of his employment, his false claim that he
   73  was a United States Marine, his lies that he had a concealed
   74  weapons permit and he needed his gun to be a security officer
   75  and for his military service, and his confession to using
   76  alcohol and nonprescribed drugs, the department unreasonably
   77  failed to verify any of his statements regarding his employment,
   78  military service, or otherwise act on any of Maldonado’s
   79  probation violations, and
   80         WHEREAS, the department knew or should have known that Mr.
   81  Maldonado lied about his place of employment, his military
   82  service, and the reasons he stated for possessing a firearm, and
   83         WHEREAS, the department was on notice that Mr. Maldonado
   84  had used alcohol and nonprescribed drugs but it did not act on
   85  his self-confessed probation violations, and
   86         WHEREAS, the department had a nondiscretionary duty to
   87  enforce its zero-tolerance policy and report Mr. Maldonado’s
   88  probation violations to the assistant state attorney and the
   89  presiding circuit judge without delay, and
   90         WHEREAS, although the department admitted that Mr.
   91  Maldonado had violated the terms of his probation before he shot
   92  Deputy Hernandez, it has never explained why it did not enforce
   93  its own zero-tolerance policy as to Mr. Maldonado, and
   94         WHEREAS, after the shooting incident, the state attorney’s
   95  office announced that Mr. Maldonado’s probation violations
   96  should have been reported to the assistant state attorney and
   97  the presiding circuit judge assigned to the case, and that, if
   98  the violations had been reported, Mr. Maldonado would have been
   99  jailed without bond and would not have been on the streets at
  100  the time he shot Deputy Hernandez, and
  101         WHEREAS, the shooting of Deputy Hernandez by Mr. Maldonado
  102  was a reasonably foreseeable consequence of the department’s
  103  failure to enforce the conditions of Mr. Maldonado’s probation,
  104  comply with the laws of Florida, and follow its own policies and
  105  procedures, and
  106         WHEREAS, Deputy Hernandez survived the shooting, was in a
  107  coma and on life support for 3 weeks, underwent multiple
  108  surgeries, and remained hospitalized for almost 3 months before
  109  being discharged to the care of a rehabilitation hospital, and
  110         WHEREAS, Deputy Hernandez was confined to a wheelchair and
  111  underwent physical, occupational, speech, visual, and cognitive
  112  therapies all day each weekday for a year, and
  113         WHEREAS, Deputy Hernandez continued to receive physical and
  114  occupational therapies and other medical care on a daily basis
  115  until 3 years ago, when his insurance provider discontinued
  116  payments to his health care providers, and
  117         WHEREAS, as a result of the shooting, Deputy Hernandez
  118  suffers from permanent brain injury and resulting hemiparesis to
  119  the entire left side of his body, motor and sensory nerve
  120  damage, spasticity, numbness, severe muscle weakness, impaired
  121  abilities in walking and balance, hydrocephalous that is treated
  122  with a permanent ventriculoperitoneal shunt, cognitive deficits,
  123  and fragments of the bullet that are permanently lodged in his
  124  brain, and
  125         WHEREAS, Deputy Hernandez has continued, on his own, to
  126  engage in physical and occupational therapies to improve his
  127  hemiparesis, but still requires medical care and professional
  128  therapy treatments to maintain maximum medical stability, and
  129         WHEREAS, Deputy Hernandez has regularly received painful
  130  Botox injections and other medications to improve muscle tone
  131  and reduce spasticity, and
  132         WHEREAS, at the time of his injury, Deputy Hernandez was
  133  earning an annual salary of approximately $60,000, plus generous
  134  benefits, including medical and retirement, and
  135         WHEREAS, Deputy Hernandez’s injuries have catastrophically
  136  changed his life and impaired his ability to earn a living, and
  137         WHEREAS, Deputy Hernandez attempted to return to work at
  138  the BSO, but was unable to perform to minimum standards, and
  139         WHEREAS, Deputy Hernandez has suffered significant economic
  140  damages, including lost income and the capacity to earn income
  141  and job related benefits, including medical insurance and
  142  retirement benefits, and
  143         WHEREAS, Deputy Hernandez has received workers’
  144  compensation benefits that have partially covered his loss of
  145  income and medical care costs, but liens have been filed
  146  amounting to hundreds of thousands of dollars, and
  147         WHEREAS, Deputy Hernandez is 37 years old and has a life
  148  expectancy of 42.6 years according to the Centers for Disease
  149  Control and Prevention’s United States Life Tables, 2008, and
  150         WHEREAS, Deputy Hernandez has suffered devastating and
  151  permanent injuries and damages, including pain and suffering;
  152  total disability; physical and mental impairment; disfigurement;
  153  mental anguish; inconvenience; loss of enjoyment of life;
  154  hospital and medical care expenses; the loss of earnings and
  155  earning capacity; the loss of benefits, including medical and
  156  retirement income benefits; liens; and other economic and
  157  noneconomic losses, and
  158         WHEREAS, a lawsuit filed on behalf of Deputy Hernandez in
  159  the 17th Judicial Circuit in and for Broward County which sought
  160  relief under s. 768.28, Florida Statutes, was dismissed by the
  161  trial court based on the department’s argument that, despite its
  162  failure to follow Florida law, its own policies and procedures,
  163  and the terms of Maldonado’s probation, the department owed no
  164  duty of care to Deputy Hernandez, and
  165         WHEREAS, appeals of the court’s ruling would be fruitless
  166  and would only cause further delay in bringing financial relief
  167  to Deputy Hernandez, and
  168         WHEREAS, despite the court’s ruling that he is legally
  169  remediless to seek damages, Deputy Hernandez respectfully
  170  requests that the Legislature find that a moral obligation
  171  exists in this particular instance based on the Legislature’s
  172  view of justice and fair treatment, and
  173         WHEREAS, Deputy Hernandez respectfully requests that, as a
  174  matter of grace, the Legislature exercise its lawful powers to
  175  appropriate a sum of monetary compensation that fully recognizes
  176  the magnitude of his injuries, disabilities, and economic
  177  damages, and
  178         WHEREAS, given the facts and circumstances that resulted in
  179  his injuries and damages, Hernandez seeks equitable relief from
  180  the Legislature, NOW, THEREFORE,
  182  Be It Enacted by the Legislature of the State of Florida:
  184         Section 1. The facts stated in the preamble to this act are
  185  found and declared to be true.
  186         Section 2. There is appropriated from the General Revenue
  187  Fund to the Department of Corrections the sum of $10 million for
  188  the relief of Maury Hernandez for injuries and damages
  189  sustained.
  190         Section 3. The Chief Financial Officer is directed to draw
  191  a warrant in the sum of $10 million payable to Maury Hernandez
  192  upon funds in the State Treasury to the credit of the Department
  193  of Corrections, and the Chief Financial Officer is directed to
  194  pay the same out of such funds in the State Treasury not
  195  otherwise appropriated.
  196         Section 4. It is the intent of the Legislature that all
  197  lien interests held by the state, if any, arising from the
  198  treatment and care of Maury Hernandez for the occurrences
  199  described in this act are waived.
  200         Section 5. The amount awarded under this act is intended to
  201  provide the sole compensation for all present and future claims
  202  arising out of the factual situation described in the preamble
  203  to this act. The total amount paid for attorney fees, lobbying
  204  fees, costs, and other similar expenses relating to this claim
  205  may not exceed 25 percent of the total amount awarded under this
  206  act.
  207         Section 6. This act shall take effect upon becoming a law.