00-3540 BROWN V. MIAMI-DADE

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State: Florida

Court: Florida Third District Court

Docket No: 00-3540 BROWN V. MIAMI-DADE

Case Date: 12/05/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2002

LUCIOUS BROWN and HENRIETTA BROWN, ** Appellants, ** vs. ** MIAMI-DADE COUNTY and GOLDEN GLADES MANAGEMENT CORP., Appellees. ** **

**

CASE NO. 3D00-3540

LOWER TRIBUNAL NO. 00-14268

Opinion filed January 28, 2003. An appeal from the Circuit Court for Dade County, Stuart M. Simons, Judge. Barbara Green; Alan B. Saslaw; Clark, Robb, Mason & Coulombe and James K. Clark, for appellants. Robert A. Ginsburg, Miami-Dade County Attorney and Stephen A. Stieglitz, Assistant County Attorney, for appellees.

Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GODERICH, GREEN, FLETCHER, SHEVIN and RAMIREZ, JJ. On Motion for Rehearing En Banc PER CURIAM. The motion for rehearing en banc is denied.

GERSTEN,

SCHWARTZ, C.J., and JORGENSON, GERSTEN, GREEN, FLETCHER, and SHEVIN, JJ., concur.

Brown v. Miami-Dade County Case No. 3D00-3540 COPE, J. (dissenting from denial of rehearing en banc). It appears to me that the panel opinion is contrary to part II of Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So. 2d 912, 919-20 (Fla. 1985); Garcia v. Reyes, 697 So. 2d 549 (Fla. 4th DCA 1997); and Seguine v. City of Miami, 627 So. 2d 14 (Fla. 3d DCA 1993). Under Trianon, when and how

to make an arrest is an immune function, lest legitimate law enforcement functions be chilled for fear of civil liability. I. The police department conducted a prostitution sting

operation at a Howard Johnson Motel.

The plaintiff was a guest.

While returning to his room he came around a corner. A police officer yelled "Freeze," and pointed a gun at plaintiff. the

The plaintiff lost his balance, fell down, and

suffered an injury. The plaintiff sued the County for negligence. The trial

court dismissed the complaint on the theory that either the County owed no duty to the plaintiff, or alternatively, that the police activity was an immune discretionary function for

purposes of sovereign immunity. The panel has reversed. Respectfully, the immunity doctrine

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is applicable here, and this court should affirm the dismissal. As best I understand the plaintiff's position, it is that conducting a prostitution sting in a hotel creates a known dangerous condition on the premises and that the police had to issue some sort of general warning before conducting the sting. See Opinion at 4. If I am reading this correctly, the plaintiff is saying that while doing a sting operation the police must set up some sort of perimeter around the hotel, presumably with barricades and yellow crime scene tape, before conducting the sting operation. The essence of a sting operation, of course, is that it be kept secret from the target of the sting. The determination how The idea that

to conduct the sting is pivotal to its success.

there should be warnings posted, flyers distributed, barricades erected, and the like would defeat the police ability to conduct sting operations at all. Ironically, the police officer in this case did warn the plaintiff to stay away from where the undercover operation was going on. What the plaintiff is really complaining about is not

that there was a failure to warn--he was warned--but that the police officer startled him by yelling " Freeze." II.

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The Florida Supreme Court in Trianon Park said: How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials. . . . 468 So. 2d at 919 (emphasis added). The Fourth District has addressed sting operations in Garcia v. Reyes, 697 So. 2d 549 (Fla. 4th DCA 1997). Mr. Garcia had

been the subject of a reverse sting operation in which it was found he had been entrapped. (Fla. 4th DCA 1991). Garcia v. State, 582 So. 2d 88

He sued for damages because he had been in 697 So. 2d at 549-

prison for thirty months before being freed. 50.

Relying on Trianon, the Fourth District ruled that there was no cause of action and that the claim was barred by sovereign immunity. Id. at 550-51 (citations and footnote omitted). The

Fourth District concluded that immunity barred the claim, even though the police officers had used impermissible means in carrying out the sting operation. In Everton v. Willard, 468 So. 2d 936 (Fla. 1985), the Florida Supreme Court said:

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Our decision in this case is consistent with our holding in Wong v. City of Miami, 237 So. 2d 132 (Fla. 1970), in which we held that a governmental entity could not be held liable for damage caused during a riot, regardless of the fact that the city had removed police officers dispatched to guard against the damage. In that case we stated that the determination of strategy and tactics for the deployment of police powers was inherent in the right to exercise those powers . Id. at 134. We concluded by noting that "sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence." Id. We reaffirmed that principle in our decision in Commercial Carrier, 371 So. 2d at 1019-20. 468 So. 2d at 939 (emphasis added). III. The panel opinion relies on seven cases for reversal. Opinion at 9. However, those cases all fall within several

recognized exceptions to the discretionary immunity doctrine. The panel relies heavily on Henderson v. Bowden, 737 So. 2d 532 (Fla. 1999), but it appears to me that the panel has misapprehended the rule set forth in that case. the police stopped a drunk driver. arresting the driver, the police In Henderson,

It was alleged that after allowed an intoxicated

passenger to drive the vehicle to a nearby Circle K convenience store and call his parents for a ride home. This individual

drove the car away, crashed into trees, and two other passengers were killed.

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The Henderson decision acknowledges that "the decision of whether to enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is immune from suit." Id. at 537 (emphasis added; citation omitted). Once the

The important point about Henderson is this.

intoxicated driver was arrested, the discretionary when-and-howto-arrest function had been to completed. do with It the then became and an the

operational passengers.

decision

what

vehicle

The teaching of Henderson is, very simply, that

once the DUI arrest has been made, the officers must use due care in the disposition of the motor vehicle and the passengers. In making this post-arrest operational decision, the officers are not allowed to relinquish the motor vehicle to a passenger to drive away, if the officers know, or in the exercise of due care, should know, that the passenger is intoxicated. Applying Henderson to the case now before us, the undercover officers were engaged in trying to accomplish an undercover arrest. The officer who encountered the plaintiff was trying

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