Florida Senate - 2021 SB 944
By Senator Thurston
33-00435A-21 2021944__
1 A bill to be entitled
2 An act relating to statewide independent counsel;
3 creating s. 16.63, F.S.; providing legislative intent;
4 defining terms; creating the Statewide Independent
5 Counsel Board in the Department of Legal Affairs;
6 requiring the board to oversee the investigation and
7 prosecution of officer-involved incidents of deadly
8 force; providing board membership requirements;
9 providing requirements of the board; providing for the
10 term and removal of the statewide independent counsel;
11 authorizing the statewide independent counsel to hire
12 or retain individuals for certain purposes, subject to
13 the approval of the board; providing that the
14 statewide independent counsel has the sole
15 prosecutorial jurisdiction over officer-involved
16 incidents within this state; requiring the independent
17 counsel to prosecute specified cases upon written
18 request of the Governor or a state attorney; requiring
19 the chief law enforcement officer of a law enforcement
20 agency to notify the board if a law enforcement
21 officer or a correctional officer is involved in an
22 officer-involved incident; providing a reporting
23 requirement for state attorneys; providing an
24 exception; providing specified grants of authority to
25 the statewide independent counsel; providing
26 legislative intent relating to the statewide
27 independent counsel’s investigations; requiring the
28 statewide independent counsel to commence a criminal
29 prosecution by complaint, rather than by indictment,
30 if the independent counsel determines that a
31 prosecution is warranted; amending s. 776.06, F.S.;
32 providing that the Office of the Attorney General has
33 the responsibility to determine whether a use of
34 deadly force was appropriate if a law enforcement
35 officer or a correctional officer is involved in an
36 officer-involved incident; requiring the Attorney
37 General, in making such determination, to provide for
38 the independent investigation and prosecution of the
39 officer-involved incident in accordance with specified
40 provisions; providing an effective date.
41
42 Be It Enacted by the Legislature of the State of Florida:
43
44 Section 1. Section 16.63, Florida Statutes, is created to
45 read:
46 16.63 Statewide Independent Counsel Board; statewide
47 independent counsel.—
48 (1) LEGISLATIVE INTENT.—It is the intent of the Legislature
49 to provide for the independent prosecution of each instance of
50 the use of deadly force by a law enforcement officer or a
51 correctional officer and to ensure just, fair, efficient, and
52 equitable treatment of all instances across this state of the
53 use of deadly force by a law enforcement officer or a
54 correctional officer.
55 (2) DEFINITIONS.—As used in this section, the term:
56 (a) “Board” means the Statewide Independent Counsel Board.
57 (b) “Correctional officer” has the same meaning as in s.
58 943.10(2) and (3).
59 (c) “Deadly force” has the same meaning as in s. 776.06(1)
60 and (2).
61 (d) “Law enforcement officer” has the same meaning as in s.
62 943.10(1), (6), and (8).
63 (e) “Officer-involved incident” means the use of deadly
64 force by a law enforcement officer or a correctional officer
65 while the officer is on duty or off duty but performing
66 activities that are within the scope of the officer’s law
67 enforcement or correctional duties which result in the serious
68 bodily injury or death of another.
69 (f) “Qualified attorney” means an attorney having at least
70 5 years of experience, with 3 of them being specific federal or
71 state criminal prosecutorial experience, and a demonstrated
72 record for honesty and fairness. Such record can by evidenced
73 through various means, including Florida Bar records, letters of
74 recommendation, and overall community support.
75 (3) STATEWIDE INDEPENDENT COUNSEL BOARD.—There is created
76 in the Department of Legal Affairs the Statewide Independent
77 Counsel Board. The board shall be a separate budget entity as
78 that term is defined in chapter 216. The board shall oversee the
79 investigation and prosecution of officer-involved incidents.
80 (a) The board shall consist of the following five members:
81 1. Three public members, at least one of whom has been the
82 subject of law enforcement officer-initiated use of force or has
83 a close association with someone who has, and at least one other
84 who is a person of color;
85 2. A state attorney with experience prosecuting criminal
86 offenses; and
87 3. A law enforcement officer.
88 (b) All members shall demonstrate an interest in and be
89 supportive of maintaining a high-quality, permanent, independent
90 counsel to investigate and prosecute officer-involved incidents.
91 (c) The board shall:
92 1. Curate and maintain a list of qualified attorneys with
93 at least 5 years of prosecutorial experience and vote on and
94 select one qualified attorney from the list every 2 years to
95 serve as statewide independent counsel;
96 2. Establish the independent counsel’s compensation;
97 3. Approve and recommend to the Legislature a budget for
98 the board and the independent counsel;
99 4. Provide appropriate oversight and supervision for the
100 independent counsel, including the ability to remove the
101 independent counsel for just cause;
102 5. Make recommendations to the Legislature regarding
103 changes in law relating to the responsibilities and jurisdiction
104 of the independent counsel, and other related matters;
105 6. Meet at least annually, and may meet as often as
106 necessary to fulfill its duties and responsibilities; and
107 7. Elect a chair from among its members.
108 (d) Board members shall serve 2-year terms. The initial
109 terms of the law enforcement officer and the state attorney
110 members shall be 1 year.
111 (e) In no event shall the board or its members interfere
112 with the discretion, judgment, or zealous advocacy of the
113 statewide independent counsel in the handling of individual
114 cases.
115 (4) STATEWIDE INDEPENDENT COUNSEL.—The statewide
116 independent counsel’s term is 2 years. The independent counsel
117 serves in the unclassified service and may be removed only for
118 just cause by the board. The independent counsel, subject to the
119 approval of the board, may hire or retain individuals to assist
120 in the investigation and prosecution of officer-involved
121 incidents within this state.
122 (a) The statewide independent counsel has the sole
123 prosecutorial jurisdiction over officer-involved incidents in
124 this state. In addition, upon written request of the Governor or
125 a state attorney, the independent counsel shall prosecute, when
126 appropriate, cases involving other law enforcement officer- or
127 correctional officer-initiated use of force incidents.
128 (b) In situations described in paragraph (a), the statewide
129 independent counsel shall exercise the powers of a state
130 attorney.
131 (c) The statewide independent counsel is subject to the
132 same ethical standards as a state attorney. The independent
133 counsel shall prosecute only those cases that he or she
134 considers appropriate, based on the independent counsel’s
135 professional judgment and experience.
136 (5) REQUIRED NOTIFICATIONS.—A chief law enforcement officer
137 of a law enforcement agency shall notify the board if a law
138 enforcement officer or a correctional officer employed by the
139 agency is involved in an officer-involved incident. If a state
140 attorney is aware that an officer-involved incident has occurred
141 within his or her jurisdiction, the state attorney must
142 immediately notify the board of the incident unless the state
143 attorney knows that the board has already been notified.
144 (6) AUTHORITY.—The statewide independent counsel may
145 conduct hearings at any place in this state; summon and examine
146 witnesses; require the production of physical evidence; sign an
147 information, an indictment, and any other official documents;
148 confer immunity; attend to and serve as the legal advisor to the
149 statewide grand jury; and exercise such other powers as are
150 granted to state attorneys by law. The independent counsel may
151 designate one or more assistants to exercise any such powers.
152 (7) INVESTIGATION.—It is the intent of the Legislature that
153 in carrying out the duties of this office, the statewide
154 independent counsel shall, whenever feasible, use sworn
155 investigators employed by the Department of Law Enforcement and
156 may request the assistance, where appropriate, of sworn
157 investigators employed by other law enforcement agencies. The
158 independent counsel may designate a prosecutorial official from
159 a judicial circuit other than the judicial circuit in which the
160 incident occurred to conduct the investigation.
161 (8) COMMENCEMENT OF PROSECUTION BY COMPLAINT AND NOT BY
162 INDICTMENT.—If, after proper investigation, the statewide
163 independent counsel determines that a prosecution is warranted
164 in an officer-involved incident, the independent counsel shall
165 commence the criminal prosecution by complaint and not by
166 indictment, regardless of the maximum punishment for the
167 offense.
168 Section 2. Section 776.06, Florida Statutes, is amended to
169 read:
170 776.06 Deadly force by a law enforcement or correctional
171 officer.—
172 (1) As applied to a law enforcement officer or correctional
173 officer acting in the performance of his or her official duties,
174 the term “deadly force” means force that is likely to cause
175 death or great bodily harm and includes, but is not limited to:
176 (a) The firing of a firearm in the direction of the person
177 to be arrested, even though no intent exists to kill or inflict
178 great bodily harm; and
179 (b) The firing of a firearm at a vehicle in which the
180 person to be arrested is riding.
181 (2)(a) The term “deadly force” does not include the
182 discharge of a firearm by a law enforcement officer or
183 correctional officer during and within the scope of his or her
184 official duties which is loaded with a less-lethal munition. As
185 used in this subsection, the term “less-lethal munition” means a
186 projectile that is designed to stun, temporarily incapacitate,
187 or cause temporary discomfort to a person without penetrating
188 the person’s body.
189 (b) A law enforcement officer or a correctional officer is
190 not liable in any civil or criminal action arising out of the
191 use of any less-lethal munition in good faith during and within
192 the scope of his or her official duties.
193 (3)(a) If a law enforcement officer or a correctional
194 officer is involved in an officer-involved incident as defined
195 in s. 16.63, the Office of the Attorney General has the
196 responsibility to determine whether the use of deadly force by
197 the law enforcement officer was appropriate under subsections
198 (1) and (2).
199 (b) In making this determination, the Attorney General
200 shall provide for the independent investigation and prosecution
201 of the officer-involved incident as provided in s. 16.63.
202 Section 3. This act shall take effect July 1, 2021.