Conjuring Justice

Proof that One Person Can Make a Difference

One of the most important founding elements of this country lies in the varying checks & balances. The Founding Fathers knew that it is likely that one entity or facet of government will overstep; therefore, another facet would have to oversee or sign off, as it were.

Strangely enough, the ECSO is not privy to any oversight on the bulk of their budget. The fundamental problem with that is the clear misappropriation of LET funds exposed over the years by this agency. Currently, they are still out of compliance with Florida Statute on that, because they are not following up with the receivers of state/county funds to make sure it was spent properly. That is one of the checks and balances to verify there is no misappropriation by the agencies in receipt of money spent by the county. It’s common practice to require follow up documentation to show where the money went. Most agencies have banned organizations from future funds if they refuse to comply with this follow up accounting. They are shut off from state/county money. Why is this necessary? Governmental accountability….plain and simple. Trust but verify, as Ronald Reagan said.

So we still have millions of dollars being unaccounted by the ECSO, then I find out through varying requests that there is so much more that the ECSO juggles that never sees oversight. With the LET records being dubious at best, and the deputy raises that were provided for by the county but never trickled down to the deputies over the past years (as exposed in the budget impasse of late) when will taxpayers and the county coffers demand accountability and hold the ECSO up to the fiduciary standard that the rest of the county is held to?

Consider this:

This agency can charge a fee for gathering public records if a request is made. Few requests will have any costs associated with the request. If a person is told there is an exorbitant fee for a record request that should garner attention. Unless the request is so labor intensive, or requests information not normally maintained, the majority of the public records requests are easily gathered. In today’s technology world records are available with a few keystrokes in most cases.

Recently, a question was raised about the Escambia County Sheriffs Office involving money. Specifically, where certain monies go, since there is no account that that the ECSO has to deposit into, such as a checking account. It is not something that shows up in the official budget. There must be existing records. Simple request, right? This public record should be answered in a matter of minutes. But, because the ECSO is the agency that has the record, it will no doubt be overcomplicated to jack up the “fees” associated with research, or they will simply state “no records exist”. These are the standard 2 answers when a public records request comes in for information, the agency does not want to disclose. Any request that would expose Morgan as the inept law enforcement official he is always is met with unprecedented push-back as well as any request that requires the ECSO to explain where they are hemorrhaging tax dollars will be met with resistance.

In this case, the money being properly unaccounted for is money related to off duty employment. The ECSO has a policy in place that defines what the procedure is for deputies working “off duty” employment. The policy has a minimum amount deputy will be paid. It also has what the deputy must do to be allowed to work “off duty” jobs. One requirement is that a deputy must pay a fee off two dollars an hour back to the ECSO. The ECSO keeps record of how many hours each deputy works each month.  The deputy is then sent a bill that is paid to the ECSO (cash only for a long time, but now they accept debit cards).

This is Accounting 101. Cash is paid to the ECSO and they could easily furnish records about transactions involving a bill and a payment. But how much money does the ECSO collect from the deputies that pay a fee for working off duty each month? Where does the money go after it is collected? Is it considered income for the ECSO? Is there a requirement to report this income to be taxed? Has it been reported? No trick questions there but important questions that require an answer from the ECSO.

Oh, and I have told repeatedly that the ECSO has no duty to answer questions–only provide public records. They “are not inclined to or have the responsibility to” answer questions, according to Chief Deputy Eric Haines. Oddly enough, every other facet of Escambia County government I have dealt with, including the state attorney’s office, is remarkably willing to answer any questions about process and procedure. It is just the ECSO that is not.

And as we know the ECSO has proven that they are not honest with money issues. It may seem as if off-duty money collected is not a substantial amount of money, but for example, Navy Federal Credit Union is a regular off duty job opportunity for the ECSO. Deputies working that job alone have paid over $1500 back to the ECSO. Now consider that Navy Federal is one of hundreds of locations that have deputies throughout the year. The amount of income collected from the deputies for off duty security employment is thousands of dollars each month. This should not be considered insignificant. There is a former Sheriff in prison for misappropriating taxpayer money. The amount of misappropriated funds in the other Sheriff’s case was far less than the funds in question here.

Shouldn’t the media get involved with this issue? We are talking about multiple millions of dollars. Just in the past week, a Grand Jury was not pleased or impressed with how Escambia County handles money issues or oversight of the money grossly mishandled in Century. The dollar amount in question with the ECSO is at least triple the amount of money being questioned in Century. Wouldn’t a grand jury be even more appalled to see the reckless lack of oversight of the ECSO? Is it not a concern of comptroller or county administrator that there is likely (based on the brief preview of the LET fund) mishandling of the amount of money involved here? Accountability about how funds are handled should be everyone’s priority. It is time to ask these questions as well as the questions, others have. If the media is not going to ask questions and hold officials accountable, the citizens must do it.

Look for updates concerning this topic. If anyone decides to make requests or has information about this, please feel free to share with everyone.      

Well, folks, it appears all the blocked/banned people can post on the ECSO FB page. No communication just quietly unblocked/unbanned. Score one for the good guys!

Also, I came across something today. It is something I already knew but it may be news to you. There is a packet of info circulating to the various news outlets. It’s referring to the upcoming Laura Montoya’s upcoming civil trial against Sheriff David Morgan, Chief Deputy Eric Haines, Fred Alford, and Ricky Shelby. Here is the cover page of the packet.

This morning, the first email I say in my Inbox was a letter that I had been waiting for…..the letter to the ECSO from the ACLU. I went to the ACLU last year when I received a public records request from ECSO (amazingly) with a list of all the “blocked & banned” people the ECSO had compiled, a list of people unable to comment on their Facebook page. I am on the banned list and I wondered how many people were. There were only a few who were banned like I was but the list of blocked profiles was extensive.

Banned List

So this was the lead story on the Channel 3 News tonight.

More to come as it transpires…….

In honor of today’s holiday, I read some of Dr. King’s speeches and am humbly inspired to say a few words.

In the “Beyond Vietnam” speech, I felt an affinity by the following words:

I come to this great magnificent house of worship tonight because my conscience leaves me no other choice. I join you in this meeting because I am in deepest agreement with the aims and work of the organization that brought us together, Clergy and Laymen Concerned About Vietnam. The recent statements of your executive committee are the sentiments of my own heart, and I found myself in full accord when I read its opening lines: “A time comes when silence is betrayal.” That time has come for us in relation to Vietnam.

A time comes when silence is betrayal. A true call to action is in those words. Silence is betrayal when that silence results in harm to any other person or people. That was the accord Dr. King must have felt. Those words ought to convict every person’s soul when they are read. Are we not all guilty of letting our silence betray another person?

The truth of these words is beyond doubt, but the mission to which they call us is a most difficult one. Even when pressed by the demands of inner truth, men do not easily assume the task of opposing their government’s policy, especially in time of war. Nor does the human spirit move without great difficulty against all the apathy of conformist thought within one’s own bosom and in the surrounding world. Moreover, when the issues at hand seem as perplexing as they often do in the case of this dreadful conflict, we are always on the verge of being mesmerized by uncertainty. But we must move on.

Some of us who have already begun to break the silence of the night have found that the calling to speak is often a vocation of agony, but we must speak. We must speak with all the humility that is appropriate to our limited vision, but we must speak. And we must rejoice as well, for surely this is the first time in our nation’s history that a significant number of its religious leaders have chosen to move beyond the prophesying of smooth patriotism to the high grounds of a firm dissent based upon the mandates of conscience and the reading of history. Perhaps a new spirit is rising among us. If it is, let us trace its movement, and pray that our inner being may be sensitive to its guidance. For we are deeply in need of a new way beyond the darkness that seems so close around us

POWERFUL WORDS! While the conflict mentioned is Vietnam and it is a horrific and confusing conflict at that, inwardly, we are all heart broken with the conflict around us.

Those that know me know that I have been re-investigating the Billings Case because something never seemed right to me about how that was said to have happened. I also knew Patrick Poff or as most know him Leonard “Patrick” Gonzalez Jr. I have made no secret of the fact, I had nothing but contempt for this man, but my conscience told me there was something wrong here. Then came the inevitable question, is Patrick worth saving? Many said, NO and justified it by saying “if he didn’t do this, he probably would have done something this bad in the future” or “if he didn’t do this, what hasn’t he been caught for that he IS guilty of?”.

Both of these justifications are flawed. Our justice system runs on the premise that the guilty should pay for the crimes they have been charged with. The crimes for which no one was “caught” are moot as are the crimes not committed yet. And in looking at this case, Pat was not the only one who was wronged, many of the others were too. I have no way of knowing for absolute sure if Pat is guilty, but I tell you that the one thing he didn’t get was a fair trial. Based on the evidence used to convict him, we should all be afraid for our own safety, because he is on Death Row and there is NO physical evidence, no legitimate eye witness; he didn’t own the gun used nor the vehicle seen in the famous video the ECSO destroyed.

None of these things happened to people who could defend themselves. All the people jailed had history of crimes, drug issues, were minorities, or were brain damaged, and all were indigent with the exception of Donnie Stallworth’s first 2 trials. But in the final trial, after being driven into indigency, he was convicted. That alone should be noted. Wayne Coldiron, a serial criminal and Pam Long are the only ones not in the racial minority. This case is a cookie cutter example of what is wrong with the justice system. Rush to judgment followed by stereotypical victimization of people who cannot defend themselves.

It is the biggest anathema among us—taking advantage of those who are marginalized (minorities, lower class, victims, people weakened by life for one reason or another). Wrongful conviction is ultimately the most consummate act because it takes the only thing broken people have left—freedom. In all exonerations, there are people who were aware of the misinformation that led to such convictions. Silence, indeed, betrayed the exonerees. Isn’t it likely that Dr. King would be advocating for those who have been convicted due their socio-economic status or race, rather than actual guilt?

I am highly disappointed in myself for the lack of postings I made on this blog. So many things happened last year.

– The CFO of the ECSO was MIA for months and no one could ask about him.

-Morgan publicly showed his ass regarding pay for the deputies that his agency kept.

-Scott Trotter, a Democrat, united many Republicans & Democrats in an effort to overthrow the ineffectual, pathological liar, Doug Underhill. This was unprecedented in this political climate in the Panhandle. While the media perpetuates the flames of division in partisan politics, in Escambia County, the opposite was happening. People with differences put them aside to make the community better. Despite having lost, Trotter brought about a way of cooperation that could be longstanding in the community. That is huge.

-Morgan was slapped on his hand regarding LET money but with the incoming BOCC Chairman, Lumon May, this may have only been a temporary measure. Lumon backslid after the election. His flip-flopping view on Underhill and his ways of deceiving the BOCC have all been forgotten by May and Underhill and Morgan are his BFF’s again. A step backwards for the county, indeed.

-The continuation of convicting people, who are likely not guilty of the crimes they are convicted, continued. Robert Howard, the man arrested for murdering Naomi Jones, is possibly being wrongly convicted. In looking at her autopsy, it is impossible to call her death murder. Her hyoid bone is in tact…due to marine predation (animal feeding) there is no evidence of sexual assault either. This guy may be guilty but her autopsy does not support that. Yet he will likely be convicted due the media and law enforcement comments to the public.

Mary Rice is another one that is probably not guilty of the murders for which she was convicted of. Most certainly, according to deputies, Morgan is responsible for Kayla Crocker’s murder. Morgan ineptness as an LEO led to not searching woods close to Crocker’s home that Boyette and Rice were indeed hiding in. Morgan was convinced the ditched car next to woods was a result of Boyette ditching the car to get on the adjacent interstate. He refused to use resources made available to him to search the woods. Deputies frustrated by this decision called me from the location. They thought it was worth investigating and Morgan said to stand down. This decision resulted into Crocker’s murder. Yet somehow Mary Rice is more culpable than Morgan.

-A good friend of mine, and a hell of a reporter, Hayley Minogue of WKRG was summarily fired after being transferred from Pensacola to Mobile coverage after she pissed off Sir David in a Naomi Jones press conference by asking him what he thought the motive of her motive was. Morgan’s classic response, “I am a law enforcement officer. I don’t care why…..I leave the whys to the psychologists and the script writers.”

The insane part of that statement is that motive is usually the one thing that leads to an arrest. Motive is stepping stone to catching the suspect. Was it a sexual predator? Was there a personal riff that ended in accidental death? was this a suicide? The “why” always factors in to the “who did it”. That is why mens rea (intent) is so important; it is one of the elements of a crime and successful prosecution. If you don’t have a why, then anyone in proximity could be arrested as a potential killer. It is the why that narrows and eliminates the field of persons of interest. Anybody that has ever watched “Law & Order”, “Matlock” or “Perry Mason” knows isn’t rocket science, yet ye olde sheriff doesn’t care what the why is.

But I digress, Morgan felt humiliated by Minogue’s why question and blackballed WKRG from info from the ECSO. Minogue was re-assigned to Mobile and later fired. Ironically, as soon as she was fired, WKRG came off the blacklist at the ECSO. Funny how that works.

After all these things happened, the bumbling Sheriff still has pull in the county. I think the citizens should scrutinize that for themselves.

Two days ago, a federal judge, Beth Bloom, dismissed a lawsuit filed by 15 students in Parkland against 6 defendants, including the Broward County Sheriff’s Office & Scot Peterson, a deputy who observed the massacre but refused to enter the school to prevent further deaths. Judge Bloom found there to be no legal obligation to protect children not in police custody.

” The claim arises from the actions of Cruz, a third party, and not a state actor. Thus, the critical question the Court analyzes is whether defendants had a constitutional duty to protect plaintiffs from the actions of Cruz. As previously stated, for such a duty to exist on the part of defendants, plaintiffs would have to be considered to be in custody.”

This is in direct conflict with a ruling a few days ago by Circuit Court Judge, Patti Englander Henning, who refused to dismiss a civil suit in state court for the same reasoning. Henning said Peterson had ” an obligation to act reasonably” in his capacity as an officer at the school during the shooting.

This entire line of thinking that the Sheriff’s office had no “legal obligation to protect” those students is asinine. As a duty to his community, not only did he have a legal obligation to do all that he could to save lives but a moral obligation that comes with the badge he took an oath for; you know, to serve and protect. In doing my own research, I found an advisory opinion by

Number: AGO 89-62
Date: September 15, 1989
Subject: Officer’s duty to provide aid to ill or injured

Mr. Michael A. Berg
Florida Criminal Justice Standards and Training Commission
Post Office Box 1489
Tallahassee, Florida 32302

RE: LAW ENFORCEMENT OFFICERS–POLICE OFFICERS–CORRECTIONAL OFFICERS–GOOD SAMARITAN ACT–MUNICIPALITIES—duty of law enforcement or correctional officers to provide emergency aid to ill, injured, or distressed persons not in police custody. ss. 768.13, 768.28 F.S.

Dear Mr. Berg:

You have asked for my opinion on the following questions:

1. Does a law enforcement officer have a legal duty to provide aid to ill, injured, and distressed persons, who are not in police custody, during an emergency?

a. If yes, are the provisions of s. 768.13, F.S., as amended by Ch. 89-71, Laws of Florida, the Good Samaritan Act, applicable to officers acting within the scope of their employment?

b. If no, is s. 768.13, F.S., supra, applicable?

2. Is a police officer protected from liability by the “Good Samaritan Act” if rendering emergency aid to persons not in police custody while off-duty?

3. Is a correctional officer protected from liability by the Good Samaritan Act if rendering emergency aid to persons not in custody while off-duty?

4. What standard of care is required of law enforcement and correctional officers rendering emergency aid within the scope of their employment? While off-duty?

5. What are the limits of liability for an officer, a supervisor, an employing agency, and the officer’s first responder instructor if the emergency aid rendered is less than the established standard of care?

In sum:

1. and 2. A law enforcement officer, including a police officer, has a legal duty to provide aid to ill, injured, and distressed persons who are not in police custody during an emergency whether the law enforcement officer is on-duty or acting in a law enforcement capacity off-duty. Thus, the Good Samaritan Act does not apply to such officers.

3. A correctional officer is not a peace officer and, therefore, does not have a legal duty to provide aid to ill, injured, and distressed persons. As a volunteer, a correctional officer would be covered under the Good Samaritan Act to the extent provided therein from liability for civil damages as a result of such care or treatment.

4. The standard of care required of law enforcement and correctional officers rendering emergency aid whether on-duty or off-duty is the same: to render such competence and skill as he or she possesses.

5. A law enforcement officer rendering emergency aid to ill, injured, or distressed persons on-duty or acting in a law enforcement capacity while off-duty is acting within the scope of his or her employment. The liability of the officer and his or her employing agency would, therefore, be subject to the terms and limitations of s. 768.28, F.S. A correctional officer providing emergency aid acts as a volunteer and would be protected by the Good Samaritan Act. The provisions of s. 768.28, F.S. (1988 Supp.), would not apply because the correctional officer is acting outside the scope of his or her employment. I am not aware of, nor have you brought to my attention, a situation in which the supervisor or the first responder instructor of a law enforcement or correctional officer would be liable for the actions of an officer providing emergency assistance to an injured, ill, or distressed person.

You have asked that this office reconsider the conclusion expressed in AGO 78-140 that a municipal police officer has a common law duty to render aid to ill, injured, or distressed persons during an emergency. Your request is based on a change in the judicially created test to determine a governmental employer’s liability under s. 768.28, F.S. (1988 Supp.), for the actions of its employee/agents. The holdings in these cases are based on the distinction between operational and planning level activities.[1] While AGO 78-140 was rendered prior to the change in this area of the law expressed by The Florida Supreme Court in Commercial Carrier Corporation v. Indian River County, 371 So.2d 1010 (Fla. 1979), the common law duty of a law enforcement officer as identified in AGO 78-140 continues to be viable, and, as discussed herein, appears to have been extended.

Your letter states that the relevant training required for basic certification as a law enforcement officer or correctional officer is the 40 hour First Responder Training Course developed by the U.S. Department of Transportation.

Questions One and Two

Your first and second questions are interrelated and will be answered together.

Florida’s “Good Samaritan Act” provides in part that:

“Any person, including those licensed to practice medicine, who gratuitously and in good faith renders emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, without objection of the injured victim or victims thereof, shall not be held liable for any civil damages as a result of such care or treatment or as a result of any act or failure to act in providing or arranging further medical treatment where the person acts as an ordinary reasonably prudent man would have acted under the same or similar circumstances.”[2]

Generally, in the absence of a contractual, special professional, or trustee relationship or a statutory requirement, a person is not under a legal duty to assist or care for the injured when the injury is not due to the fault of the person sought to be charged.[3]

The term “law enforcement officer” is defined in several statutory sections.[4] The most comprehensive definition is found in s. 943.10(1), F.S., which states that:

“‘Law enforcement officer’ means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof; who is vested with authority to bear arms and make arrests; and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state. This definition includes all certified supervisory and command personnel whose duties include, in whole or in part, the supervision, training, guidance, and management responsibilities of full-time law enforcement officers, part-time law enforcement officers, or auxiliary law enforcement officers but does not include support personnel employed by the employing agency.”[5]

Thus, it does not appear that the Legislature has distinguished between municipal police officers and law enforcement officers in general and the statutory duties and responsibilities, as well as the training, of all law enforcement officers are comparable.

In AGO 78-140 this office considered a Florida appellate court holding that a sheriff’s officer is charged with the common law duty to render aid in emergencies to the ill, the injured, or the distressed, and concluded that in view of this holding municipal police officers are under a legal duty to provide such aid.

In Webster v. State,[6] the district court held that the right of officers of the sheriff’s department to enter and to investigate in an emergency situation, without an accompanying intent to seize or arrest, “is inherent in the very nature of their duties as peace officers and derives from the common law.” Thus, no search warrant was required to legalize an entry by police for the purpose of rendering aid to an injured or distressed person, “their duty certainly being to effect a rescue or to render aid to someone whom they had reasonable belief was in dire peril.” The Webster court declared that it is part of the nature and duty of a police officer, derived from the common law duties of a peace officer, to render aid in emergency situations. Subsequent Florida court decisions have upheld warrantless searches and seizures based on this common law duty of police officers.[7]

A “peace officer” is generally defined to “include[s] sheriffs and their deputies, constables, marshals, members of the police force of cities, and other officers whose duty is to enforce and preserve the public peace.”[8] (e.s.)

Thus, the common law duty to render aid to an ill, injured, or distressed person would appear to apply to all law enforcement officers whose duty it is to enforce and preserve the public peace not just police or sheriff’s officers.

However, the authority of a law enforcement officer is subject to territorial limitations.[9] As a general rule, the authority of a law enforcement officer is coextensive with the boundaries of his employing agency and, when acting outside his or her jurisdiction, a law enforcement officer possesses no more authority to act than a private citizen.[10]

Thus, as the power of a law enforcement officer to act as a peace officer is coextensive with his or her territorial jurisdiction, the common law duty of such officer to render aid in emergency situations would also be subject to such limitations and a law enforcement officer would act as a private citizen otherwise.

At the discretion of their superior officers, all certified law enforcement officers have the right to carry, on or about their persons, concealed firearms, during off-duty hours[11] and may perform the same law enforcement functions that they normally perform during duty hours, utilizing their weapons in a manner which is reasonably expected of on-duty officers in similar situations.[12]

The officers specified in s. 790.052(1), F.S., may act as peace officers while off-duty and perform law enforcement functions. Therefore, these officers, although off-duty, would continue to be subject to the common law duty to render aid which applies to an on-duty officer to the extent they are performing law enforcement functions.[13]

Because a law enforcement officer is under a common law duty to render aid while on-duty and when acting in a law enforcement capacity while off-duty, the provisions of s. 768.13, F.S. (1988 Supp.), Florida’s Good Samaritan Act, would not be applicable.[14]

Question Three

A correctional officer is defined as:

“[A]ny person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody, and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.”[15]

Because the duties and responsibilities of a correctional officer are directed to the supervision, protection, and control of inmates within the correctional system of this state rather than the general public, I cannot conclude that such officers are under the common law duty to aid the injured, ill, or distressed in an emergency as are law enforcement officers.[16]

Thus, as a correctional officer is not under a common law duty to render aid in emergencies to ill, injured, or distressed persons, he or she acts as a volunteer outside the scope of employment when rendering such aid off-duty.[17] Pursuant to the Good Samaritan Act, if a correctional officer provides emergency care and aid in good faith and in a reasonably prudent manner, he or she would be immune from liability provided that such care is rendered at the scene of an emergency outside of a place with proper emergency equipment and without the objection of the victim.

Question Four

I am aware of, and you have called to my attention, no Florida case law which prescribes a standard of care to be used by law enforcement or correctional officers rendering emergency aid. However, the following general comments may be of assistance to you.

The Good Samaritan Act prescribes as the standard of care for purposes of that statute the responsibility to “act[s] as an ordinary reasonably prudent man would have acted under the same or similar circumstances.”[18]

General authority suggests that the duty of one who voluntarily undertakes to care for and assist an ill or injured person is the same as that of one who is legally obligated to render such care or assistance.[19]

One who is under a duty to care for an ill or injured person is bound to use reasonable or ordinary care and to have a proper regard for the safety of such person, and is liable for further injury resulting from lack of proper care. The generally accepted rule is that one who provides relief or assistance to an ill, injured, or helpless person is under a legal obligation to use reasonable care and prudence in what he does. In such case the measure of the duty assumed is to exercise ordinary or common humanity, or to exercise with reasonable care such competence and skill as he possesses, or to exercise such care in the treatment of the injured person as the circumstances will allow.[20]

As discussed above, law enforcement officers are under a legal duty to render emergency aid to the injured, ill, or distressed whether such officers are on-duty or acting in a law enforcement capacity while off-duty. Thus, a law enforcement officer who renders emergency assistance to an injured, ill, or distressed person must exercise with reasonable care such competence and skill as he possesses, i.e., such skill as a person with 40 hours of “first responder training” would possess.

A correctional officer rendering aid in an emergency situation would be held to the same duty of care, i.e., commensurate with the competence and skill he or she possesses, but such officer acts as a volunteer outside the scope of his or her employment when rendering such aid.

Question Five

Section 768.28(1), F.S. (1988 Supp.), provides in part that an action at law may be brought against the state and its agencies or subdivisions to recover damages in tort for injuries caused by the negligent acts of an employee acting within the scope of his or her employment, if a private person would be liable under the same circumstances. Since the actions of a law enforcement officer in rendering aid in emergencies would be within the scope of his or her employment, the agency employing the officer may be liable for the actions of its employee.[21] A law enforcement officer, however, would not be subject to personal liability in tort for any injuries or damages suffered as a result of any act or omission of action done within the scope of his employment or function unless he acted in bad faith, or with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.[22] Any liability of an employing agency of a law enforcement officer would be limited to the monetary limits set forth in s. 768.28(5), F.S. (1988 Supp.), which are currently provided to be $100,000 for any claim or judgment by any one person or $200,000 for all claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence.[23]

A correctional officer, who is under no legal duty to render emergency aid, acts as a volunteer outside the scope of his or her employment when rendering such aid. Therefore, a correctional officer may be held personally liable for injuries resulting from his actions or omission of action unless he is held immune under the terms of the Good Samaritan Act.[24] A correctional officer who in good faith and in a reasonably prudent manner provides care and aid at the scene of an emergency, without any duty to do so, would be immune from liability provided that he or she renders such care outside of a place with proper emergency equipment and without the objection of the injured person.[25]

However, the employing agency would not be liable pursuant to s. 768.28, F.S. (1988 Supp.), for the torts or negligence of a correctional officer under such circumstances as the officer is not acting within the scope of his or her employment.

I am not aware of, nor have you related, any situation in which the supervisor of either a law enforcement officer or correctional officer or the first responder instructor of such officer would be held personally liable for the actions of an officer in providing emergency aid.


Robert A. Butterworth
Attorney General



[1] Everton v. Willard, 468 So.2d 936 (Fla. 1985) (relating to the discretionary judgmental decision of making an arrest under the police power of a governmental entity); Rodriguez v. City of Cape Coral, 451 So.2d 513 (2 D.C.A. Fla., 1984), approved, 468 So.2d 963 (Fla. 1985) (neither a city nor a city police officer may be held liable for the exercise of discretion in not taking an intoxicated person into protective custody under s. 396.072[1], F.S. [1977]); Department of Health and Rehabilitative Services v. Yamuni, 529 So.2d 258 (Fla. 1988) (wherein the Court considered the distinction between operational and planning level activity in regard to actions of HRS case workers investigating and responding to reports of child abuse pursuant to Ch. 39, F.S.).

[2] Section 768.13(2)(a), F.S. (1988 Supp.).

[3] See 65 C.J.S. Negligence ss. 4(4), 4(9) (duty, breach of which may constitute negligence, must be a legal duty); 63(104), and 63(107). See also Modlin v. City of Miami Beach, 201 So.2d 70 (Fla. 1967) (fundamental element of actionable negligence is the existence of a duty owed by person charged with negligence to person injured); Drady v. Hillsborough County Aviation Authority, 193 So.2d 201 (2 D.C.A. Fla., 1966) (negligence is a breach of a legal duty).

[4] See ss. 112.531, 316.1906, and 943.10, F.S.

[5] Compare ss. 316.1906(1)(d)1., and 112.531(1), F.S., defining “law enforcement officers.”

[6] Webster v. State, 201 So.2d 789, 792 (4 D.C.A. Fla., 1967).

[7] See State v. Moses, 480 So.2d 146, 148 (2 D.C.A. Fla., 1985) (“[Officer] was responding to an emergency, fulfilling a function stemming from the common law role of police as ‘peace officers'”); and Campbell v. State, 477 So.2d 1068 (2 D.C.A. Fla., 1985).

[8] Black’s Law Dictionary 1287 (rev. 4th ed. 1968).

[9] See generally 40 Fla. Jur.2d Police, Sheriffs, and Constables s. 118 (municipal police officers); 80 C.J.S. Sheriffs and Constables s. 36 (sheriffs).

[10] See AGO 71-72; State v. Schuyler, 390 So.2d 458 (3 D.C.A. Fla., 1980) (An off-duty municipal police officer outside his jurisdiction has no right of arrest other than as a private citizen. A private person has a common law right to arrest a person who commits a felony in his presence, or to arrest a person where a felony has been committed, and where the arresting citizen has probable cause to believe, and does believe, the person arrested to be guilty.). Cf. ss. 901.18 and 901.25, F.S., which specifically authorize a municipal police officer to exercise police powers outside the territorial limits of his municipality under specified circumstances such as fresh pursuit or when summoned by another officer.

[11] Law enforcement and correctional officers as defined in s. 943.10(1), (2), (6), (7), (8), or (9), F.S., are included within the scope of this statute. Thus, law enforcement officers, correctional officers, and such officers as are auxiliary or part-time officers are authorized to carry concealed firearms during off-duty hours. Compare Garner v. Saunders, 281 So.2d 392 (2 D.C.A. Fla., 1973) (in action against city and its insurers for injuries sustained by plaintiff when he was shot by a policeman who had completed his normal daily tour of duty and who was required by city regulations to be on duty at all times and to always be in possession of a firearm, issue of material fact existed as to whether policeman was acting within scope of his employment).

[12] Section 790.052(1), F.S.

[13] Cf. Minard v. Department of Highway Safety and Motor Vehicles, 418 So.2d 288, 289 (3 D.C.A. Fla., 1982), wherein the court held that an off-duty state trooper had no duty to stop the car of a hit-and-run driver when the driver of the car had done nothing that would have caused the highway patrolman to stop the car had he been on-duty. While the court stated that the off-duty officer was not obligated to follow the car of the hit-and-run driver, it stated that “in fact, his responsibility was to render aid to the injured [victim]. . . .” (e.s.) The state trooper was off-duty at the time, driving his private car and was dressed in civilian clothes; compare Curtis v. Bulldog Leasing Company, Inc., 513 So.2d 238 (4 D.C.A. Fla., 1987) (off-duty municipal police officer who was outside his jurisdiction and on his way to work when he observed accident, who stopped to inquire if anyone was hurt, and who remained on the scene pending arrival of highway patrol was acting as a Good Samaritan and not within the scope of his employment for purposes of s. 768.28[1], F.S.).

[14] See 81A C.J.S. States s. 126(c) (a “good samaritan” statute exempting an individual from liability for negligence in attempted rescue does not protect a state officer who is under a duty to assist person in need of care.)

[15] Section 943.10(2), F.S. And see s. 112.531(2), F.S., which defines “Correctional Officer” for purposes of the Law Enforcement Officers’ and Correctional Officers’ Bill of Rights.

[16] Cf. AGO 74-38 (Employees of the Division of Corrections who render emergency care in a reasonably prudent manner to a visitor injured on institutional grounds are immune from civil liability where treatment is provided outside of a hospital, doctor’s office, or other place having proper medical equipment and without objection by the injured victim.)

[17] This is not to imply that a correctional officer may not be under a constitutional or statutory duty to render aid in emergencies to ill, injured, or distressed inmates while on-duty.

[18] Section 768.13(2)(a), F.S. (1988 Supp.).

[19] See generally 65 C.J.S. Negligence s. 63(107).

[20] Id.

[21] See AGO 78-140 wherein the issue of liability of a municipality for the actions of a police officer who renders assistance in an emergency is discussed.

[22] Section 768.28(9), F.S. (1988 Supp.).

[23] Section 768.28(5), F.S. (1988 Supp.).

[24] Cf. AGO 78-140.

[25] See Botte v. Pomeroy, 438 So.2d 544 (4 D.C.A. Fla., 1983), rev. den., 450 So.2d 488 (Fla. 1984), app. after remand, 497 So.2d 1275 (4 D.C.A. Fla., 1986), rev. den., 508 So.2d 15 (Fla. 1987), in which the appellate court discusses the necessity of consent of the injured person to assistance when the rescuer is using the Good Samaritan Act as a defense against a negligence action.

So what is painfully obvious is that Judge Bloom is not familiar with Butterworth’s ruling explicitly providing that it is legally required that an officer protect and render aid which is precisely what Peterson did not do.

So Morgan and Haines may be held to task for their gross misconduct by a former employee Laura Montoya, a Hispanic female.  One last settlement conference was yesterday and there was no real settlement offered and now it is on to jury trial. Montoya is the only employee out of the many who hasn’t settled, or given up on this long formidable legal proceedings. Congratulations, Laura!!!
DAVID MORGAN, Individually and
in His Official Capacity as Sheriff
Escambia County, Florida; ERIC
HAINES, Individually; RICKY
SHELBY, Individually; and FRED
ALFORD, Individually,

For the foregoing reasons, Defendants’ Motion for Summary Judgment, ECF

No. 78, is GRANTED in part and DENIED in part, as follows:
1. Summary Judgment is GRANTED on all claims of race discrimination
and GRANTED for Defendant Alford on all claims;
2. Summary Judgment on Count I and Count II (First Amendment Retaliation) is GRANTED;
3. Summary Judgment on Count III (Equal Protection/gender) (Defendant
Sheriff , official capacity) is DENIED as to the demotion, GRANTED
as to the termination;
4. Summary Judgment on Count IV (Equal Protection/gender) (Individual
Capacities) is GRANTED for Alford on all claims, GRANTED for Shelby, Haines, and Morgan on claims respecting the termination decision, GRANTED on grounds of qualified immunity for Shelby, Haines, and Morgan on the demotion decision, and GRANTED
as to Shelby, Haines, and Morgan on the hostile work environment claim;
5. Summary Judgment on Count V (Gender Discrimination/Title VII and FCRA) (Defendant Sheriff, official capacity) is DENIED;
6. Summary Judgment on Count VI (Gender-Based Hostile Work Environment/Title VII and FCRA) (Defendant Sheriff, official capacity) is GRANTED;
7. Summary Judgment on Count VII (Race Discrimination) is GRANTED;
8. Summary Judgment on Count VIII (Race-Based Hostile Work Environment) is
9. Summary Judgment on Count IX (Retaliation/Title VII and FCHR)(Defendant Sheriff, official capacity) is GRANTED;
10. Summary Judgment on Count X (Conspiracy, Section 1985) and Counts XI
and XII (Section 1986) is GRANTED.
Trial will be scheduled by separate order.
DONE AND ORDERED this 30th day of September 2018
Let the games begin…get these “honorable” citizens under oath. The lies will then begin flowing.  The people can then pass judgment.
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