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.
   42  Be It Enacted by the Legislature of the State of Florida:
   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.
  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.