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MIAMI MIRROR TRUE REFLECTIONS

Miami Beach Police Chief Raymond Martinez

ON THE SOVEREIGN IMMUNITY OF POLICE OFFICERS AND BUILDING INSPECTORS BY DAVID ARTHUR WALTERS

Surely there is a difference between the duties of building inspectors and the duties of police officers, yet City Attorney Jose Smith of the City of Miami Beach said he intends to apply the 1985 landmark Florida Supreme Courts notorious sovereign immunity ruling in Trianon Park Condominiums v. The City of Hialeahthat a municipality never has liability for negligent building inspectionsto several pending police shooting cases. The jury in the Trianon case believed that 49 out of 65 condominiums were damaged due to leaks in the faulty roofing approved by Hialeah building inspectors, and returned a verdict against the city for $291,000. The verdict, upheld by the district court, was overturned by the states high court. The Citys sovereign immunity in the Building Department context is so well established, Smith claimed, that nobody has ever had the audacity to challenge it. We are nevertheless inclined to ask, What about the Police Department context? Is it not different than the Building Department context? In any case, we believe the question should turn on negligence alone, and that all officials and/or their employers should be liable for their negligence. Wherefore at issue is the definition of negligence and its application to particular cases. The functions of cops and building inspectors are different in many respects. In certain circumstances confronted by police officers negligence cannot be determined with certainty because that would be sheer guesswork, or anyones call and not the reasonable decision of a majority.
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The Trianon court stated that, The discretionary power to enforce compliance with the building code flows from the police power of the state. In that regard, this power is no different from the discretionary power exercised by the police officer on the street in enforcing a criminal statute, the discretionary power exercised by a prosecutor in deciding whether to prosecute, or the discretionary power exercised by a judge in making the determination as to whether to incarcerate a defendant or place him on probation. Statutes and regulations enacted under the police power to protect the public and enhance the public safety do not create duties owed by the government to citizens as individuals without the specific legislative intent to do so. The absolute identification of the powers of a police officer and a building inspector is fallacious inasmuch as it implies that they are doing the same thing. The police power of the state is generally its power to provide for the safety, health, and improvement in morals of its public. A police officer and a building inspector exercise the general power in different ways, the rub here being in the different applications of the general power As for discretion, there must be some limit on discretion lest discretion become synonymous with tyranny. The Federal Tort Claims act waives sovereign immunity in federal cases: The legislative waiver was deemed necessary due to an old prejudice that a king cannot be sued without his permission. In fact, that permission was routinely given upon the filing of a petition of right, for no sovereign actually has absolute power, and pretentions to it inevitably results in coups and revolutions. And the United States does not have kings. However, the craving for and worship of absolute power in personal form is not easily relinquished, wherefore the federal act provides exceptions for discretionary functions in Section 421 of Title IV, The Federal Tort Claims Act: The provisions of this title shall not apply to-- (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or an employee of the Government, whether or not the discretion involved be abused. The act does not define discretion nor does it explicitly identify the particular functions embraced by the Florida Supreme Court in Trianon in this paragraph: 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, as well as the discretionary authority given fire protection agencies to suppress fires. This same discretionary power to enforce compliance with the law is given to regulatory officials such as building inspectors, fire department inspectors, health department inspectors, elevator inspectors, hotel inspectors, environmental inspectors, and marine patrol officers. A discretionary function exception, within which these types of activities fall, was expressly recognized in the Federal Tort Claims Act.

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Floridas statutory waiver of sovereign immunity does not mention the discretion Florida courts feel obliged to consider. For example, we recall offhand that a complaint filed in Miami alleged that a police officer yelled freeze and pointed a gun at one Mr. Brown, who then lost his balance, fell down and suffered an injury. The suit against Miami-Dade County alleged negligence and assault. 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 purpose of sovereign immunity. Of course there have been numerous interpretative applications of the federal discretionary exception over the years. For example, Downs v. United States, 522 F.2d 990 (6th Cir.1975) was cited in a dissent to a Florida Supreme Court ruling. It involved a situation where an FBI agent in charge was faced with extremely difficult decisions as to how to cope with an aircraft hijacking. The court held that the agent's activities did not entail the formulation of governmental policy and did not fall within the discretionary function exception. The Trianon court remarked on the difference in common law perception, not between the power exercised by different types of public officials, but between the so-called private or proprietary functions, and the public functions of any given official. The confusion of functions is furthered by distinguishing supposedly discretionary planning or policy decisions from non-discretionary operational functions. The public/proprietary or public/individual distinction has been made by courts to allow negligence claims against governments to proceed on the basis that, although governments have sovereign immunity from negligence suits when exercising a public function such as protecting the public, they are liable for negligence when an official is carrying out duties likened to those performed by employees in the private sector, in which case they do have a common law duty to act reasonably to prevent harm to individuals. The lack of a common law duty for exercising a discretionary police power function must, however, be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law. In these latter circumstances there always has been a common law duty of care and the waiver of sovereign immunity now allows actions against all governmental entities for violations of those duties of care. For example: Providing professional, educational, and general services for the health and welfare of citizens is distinguishable from the discretionary power to enforce compliance with laws passed under the police power of this state. These service activities, such as medical and educational services, are performed by private persons as well as governmental entities, and common law duties of care clearly exist. Whether there are sufficient doctors provided to a state medical facility may be a discretionary judgmental decision for which the governmental entity would not be subject to tort liability. Malpractice in the rendering of specific medical services, however, would clearly breach existing common law duties and would render the governmental entity liable in tort. Yet the dividing line between proprietary and public was recognized as nonsensical long ago. Benjamin Cardozo referred to the spurious distinction, in his article A Ministry of Justice, Harvard Law Review, Vol. 35, No.2, December 1921:
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It is a rule which has grown up in many jurisdictions and has become a common ritual that municipal corporations are liable for the torts of employees if incidental to the performance or non-performance of corporate or proprietary duties, but not if incidental to the performance or non-performance of duties public or governmental. The dividing line is hard to draw. Building a drawbridge, maintaining a health department, or a charitable institution, confining and punishing criminals, assaults by police- men, operating an elevator in a city hall, driving an ambulance, sweeping and cleaning streets, have been held governmental acts. Sweeping and cleaning streets, street lighting, operating electric light plants, or water works, maintaining prisons, have been held private functions. (34 HARV. L. REV. 66) The line of demarcation, though it were plainer, has at best a dubious correspondence with any dividing line of justice. The distinction has been questioned by the Supreme Court of the United StatesWorkman v. The Mayor, I79 U. S. 552, 574 (I900). It has been rejected recently in Ohio Fowler v. City of Cleveland, I00 Ohio St. 18, 126 N. E. 72 (I919).In many jurisdictions, however, as, for example in New York, it is supported by precedent so inveterate that the chance of abandonment is small. I do not know how it would fare at the hands of a ministry of justice. Perhaps such a ministry would go farther, and would wipe out, not merely the exemption of municipalities, but the broader exemption of the state. At least there is a field for inquiry, if not for action. (Benjamin N. Cardozo, A Ministry of Justice, Harvard Law Review, Vol. 35, No.2, Dec. 1921) The Trianon court further clouded the divisive issue and evaded the question by building a fictitious firewall between the judiciary and the executive branches, and holding that the judiciary is not empowered to encroach on the discretion of the executive or on the legislative for that matter. Of course judicial common law inherently encroaches on legislation by way of discretionary interpretation, and it was observed by jurists of old that it is the judiciary that actually executes legislation. Ironically, a reading of Floridas own waiver of sovereign immunity on behalf of the executive branch indicates that the courts decision in Trianon is unconstitutional, although the court would retort that its interpretation of the constitution is the constitution therefore cannot be unconstitutional. Justice Shaws enlightening dissent in the Trianon case objected to the illogical function-splitting exercises of the Florida Supreme Court since they only added to the confusion and muddied the real issue of whether or not municipalities should be immune for the negligence of their employees. As far as Judge Shaw was concerned, only legislatures should be immune for their official acts. To that we should add, if he has not already done so somewhere, that the judiciary should be immune from liability for its judicial acts. I more fully discuss my disagreement with the Court's approach to sovereign immunity issues in my dissents in Everton v. Willard, 468 So.2d 936 (Fla. 1985), Carter v. City of Stuart, 468 So.2d 955 (Fla. 1985), Reddish v. Smith,468 So.2d 929 (Fla. 1985), and Duvall v. City of Cape Coral,468 So.2d 961 (Fla. 1985). I add only that the four new categories of government functions and activities which the majority creates here can only add confusion to an already confused area of the law. The four categories are: (I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens. The majority concludes there is no common law duty of care with respect to categories I and II and the statutory waiver of sovereign
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immunity did not create a new duty of care but that there is a common law duty of care with respect to categories III and IV. See majority op. at 919-921. If the state cannot be liable in the first two categories because of an absence of common law duty, but may be liable in the last two categories because of the presence of a common law duty, then it logically follows that there is no sovereign immunity for any of the four categories. Duty or lack of duty appears to be the distinguishing feature. The majority opinion commingles the separate issues of sovereign immunity and duty under traditional tort law. If a government entity is sovereignly immune from suit because of the separation of powers doctrine, there is no jurisdiction over the person (party) and the courts may not hear or address the merits of the case. Thus, any discussion of duty can only mean one of two things: the city is not sovereignly immune from suit and the courts have jurisdiction to decide the case on the merits using traditional tort principles; or, the city is immune and the court's analysis of the merits is dicta. I maintain, of course, that it is the former: government entities are not sovereignly immune from suit on discretionary, planning or police power activities. They may or may not be liable on the merits, but they are not immune. Justice Shaw referred the Trianon court to his dissent in Everton v. Willard, 468 So.2d 936 (1985). The majority there held that, There has never been a common law duty of care owed to an individual with respect to the discretionary judgmental power granted a police officer to make an arrest and to enforce the law. 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, regardless of whether the decision is made by the officer on the street, by his sergeant, lieutenant or captain, or by the sheriff or chief of police. Justice Shaw observed that, Willard was speeding and running a red light when he collided with a second vehicle. The driver of the second vehicle was killed and various passengers injured. Approximately ten to twenty minutes prior to the homicide, Deputy Parker had observed Willard making an illegal U-turn at a dangerous intersection, against the red light and over a concrete median. After observing a second U-turn, Deputy Parker detained Willard and observed that he staggered when he exited his car, smelled of alcohol, and admitted that he had been drinking. A friend of Willard's arrived during the detention and offered to drive him home, but Deputy Parker successfully discouraged the offer. Instead, Deputy Parker issued a traffic citation for an illegal U-turn and released Willard to drive away in an intoxicated state. Deputy Parker knew, or should have known, that Willard was incapable of driving because of intoxication and posed a public hazard. The immunity theory has been further supported with the idea that it is better for an individual to suffer a grievous wrong than to impose liability on the people vicariously through their government. If there is anything more than a sham to our constitutional guarantee that the courts shall always be open to redress wrongs and to our sense of justice that there shall be a remedy for every wrong committed, then certainly this basis for the rule cannot be supported. The people, the legislature, and the executive branch apparently agree with this observation. They have implemented the constitutional provision for suits against the state by enacting a broad waiver of sovereign immunity into general law and tasking the judiciary with the responsibility for hearing

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tort suits against the state, its agencies, and political subdivisions. We should not resurrect sovereign immunity under the label of the separation of powers or police powers doctrine. As for the separation of powers exception, Justice Shaw said, Our only defensible ground in Florida for creating a discretionary exception to the waiver of sovereign immunity is the constitutional doctrine of separation of powers. Where that constitutional doctrine is not violated, we have no authority to override the constitutional and statutory provisions authorizing access to the courts for bringing tort suits against the state. we are not the self-constituted guardians of the public purse empowered to import sovereign immunity into a statute designed to waive it. The legislature is the primary guardian of the public purse and we have no authority to override its determination that the government will be liable for its torts. The exception we carved out in Commercial Carrier can only be applicable to non-justiciable political questions which the courts are unable to answer: should a law be enacted, should a legislative bill be vetoed. Applying the above to the case at hand, it is clear to me that the deputy sheriff's decision not to take charge of an intoxicated driver is not the basic governmental policy decision which Commercial Carrier held to be immune under the separation of powers doctrine. The decision to release or not release a drunk driver is not a political decision. In any case, it seems that some difference must be drawn between routine building inspections and emergency police shootings. Inspecting buildings and policing cities are admittedly both exercises of the general police power that regulates behavior to promote the welfare of the public. Nonetheless, building inspectors do not face down owners, developers, and contractors with guns drawn at risk of shooting the wrong person or being shot themselves in the heat of the moment. A reasonable person might suppose that, if any government employee is negligent, then the government should be liable for the damages, no matter what department of government is involved. So negligence is the common factor. Yet a difference remains. The circumstances faced by the police officer differ from those faced by building inspectors. Where police officers might be given the benefit of the doubt in some situations, there is no benefit to be given to an inspector who ignores definite building code requirements. In any case, our government is sovereign in the sense of the prerogatives we endowed it with, but immunity for negligence is not one of its privileges. For a court to liken government to an untouchable tyrant standing above the law belies the foundational principles of our democratic republic. The Florida Supreme Court itself recognized this in 1957, in Hargrove v. Town of Cocoa Beach, before its reactionary backsliding in subsequent cases. Indeed, dissenting Justice Ehrlich in Trianon observed that, In Hargrove, this Court for the first time recognized the anachronism of sovereign immunity, particularly as applied to municipalities, and held that a municipality was liable for the negligence of its employees in its police department on the theory of respondeat superior. The appellant in Hargrove sought damages from the city for the negligence of its jailor in leaving the jail unattended overnight, with the result that her husband, who was incarcerated during helpless intoxication, was suffocated by smoke which filled the cell during the night. The Court held: "We therefore now recede from our prior decisions which hold that a municipal corporation
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is immune from liability for the torts of police officers. Affirmatively we hold that a municipal corporation may be held liable for the torts of police officers under the doctrine of respondeat superior." A caveat followed: We think it advisable to protect our conclusion against any interpretation that would impose liability on the municipality in the exercise of legislative or judicial, or quasi-legislative or quasi-judicial, Justice Ehrlichs dissent in Trianon complained that the Court had receded from the sweeping change of Hargrove in the 1967 case of Modlin v. City of Miami Beach. Max Modlins wife Celia was crushed to death by an overhead mezzanine while shopping in a store. Her husbands complaint alleged that the failure of the city to detect the fault in construction was negligent. In taking the case on appeal despite the fact that the common law on the issue had already been declared in Hargrove, the Court agreed with the district court below that the question involved was of great public interest. And then it contradicted Hargrove with the excuse or justification that the enforcement of building codes constituted an exercise of legislative or judicial, or quasilegislative or quasi-judicial functions. Therefore the court, identifying executive discretion with the discretion of legislators and judges, speciously reasoned that it had to clear up the confusion created by Hargrove by correcting its error in that case. Discretion, as is usual in the great historical debate over sovereign immunity, is the key word. Discretion comes in degrees. A carpenter pounding nails exercises some discretion, but the result must be useful no matter how he drives them. All too often the need for discretion has been an excuse for negligence and tyranny. Judges and legislators certainly need discretion to judge and legislate without interference or retaliation, but now, if we are to believe the Florida Supreme Court, building inspectors must have the discretion to ignore building codes so that buildings may fall down on people and kill them. Otherwise, how could a negligent building inspector do his job? The court in Modlin reasoned that a duty to the public is public in nature therefore the government has no duty to individuals like the Modlins, who happen to be the unfortunate victims of negligent building inspectors. The court would eventually elaborate fallaciously on the public/individual duty distinction in 1979, in Commercial Carrier Corporation v. Indian River County, after the legislature had been so bold in 1975 as to waive sovereign immunity, legislation that the court made another end run around with Trianon in 1985. In truth, to hold government harmless for its negligence is not only a civil wrong, in the sense of offending individuals whom the law has afforded certain rights, but is a public wrong as well, an offense against everyone. We observe that the negligence is often so gross with consequences obvious that the tort seems not only intentional against the particular party but is difficult to distinguish from criminal behavior since it endangers the public which has legislated against the harm. That being said, a careful distinction must be made between the performance of activities essential to the performance of duties by police officers and building officials. All officials should exercise reasonable care in the undertaking of their duties. As it is, building department directors, operations managers, and inspectors are well aware of the Courts holding in Trianon Park Condominiums v. the City of Hialeah, an awareness of sovereign impunity that may serve
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to cultivate negligence on their part. Even worse that judicial or common law legislation may spread the immunity for negligence over other departments, such as the police department. Again, the question should turn on negligence. All officials and/or their employers should be liable for their negligence. Again and again, at issue is the definition of negligence and its application to particular cases. In certain circumstances confronted by police officers negligence cannot be determined with certainty as that would be sheer guesswork or anyones call, not the reasonable decision of a majority. We shall soon take up an example of a South Beach police shooting to illustrate our point. As we have seen, City Manager Jose Smith would apply the notorious Trianon decision to his police shooting cases. There is a big difference between the duties of a building inspector with pen drawn to fill out an inspection report and a police officer looking down the barrel of a gun. We hope the judiciary will not be blind to that difference. ##

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