INTERNAL AFFAIRS INVESTIGATIONS AND THE POLICE OFFICER BILL

INTERNAL AFFAIRS INVESTIGATIONS AND THE POLICE OFFICER BILL OF RIGHTS Bradley Weissman Assistant City Attorney

DEFINITION [F. S. 112. 531] Law Enforcement Officer: “Any person, other than a chief of police, who is employed full time or part time by any municipality or the state or any political subdivision thereof and whose primary responsibility is the prevention and detection of crime or the enforcement of the penal, traffic, or highway laws of this state; and includes any person who is appointed by the sheriff as a deputy sheriff under pursuant to s. 30. 07. ”

Receipt and Processing of Complaints [F. S. 112. 533] • “Every law enforcement agency and correctional agency shall establish and put into operation a system for the receipt, investigation, and determination of complaints received by the agency from any person, which shall ne the procedure for investigating a complaint against a law enforcement and correctional officer and for determining whether to proceed with disciplinary action or to file disciplinary charges…” [F. S. 112. 533(1)(a)] • “Any political subdivision that initiates or receives a complaint against a law enforcement officer or correctional officer must within 5 business days forward the complaint to the employing agency of the officer who is the subject of the complaint for review or investigation. ” [F. S. 112. 533(1)(b)1. ]

• Investigation and interrogation must be conducted by a member of the subject officer’s agency. [F. S. S. 112. 532(1) & 112. 533(1)(a)1. , (1)(a)2. , and (1)(b)1. ] v. Governor signed into law, effective July 1, 2020, an amendment to this provision which permits an investigator from another law enforcement agency to conduct the investigation when: • a conflict is identified with having an investigator conduct the investigation of an officer of the same employing agency; • the employing agency does not have an investigator trained to conduct such investigations; or • the agency’s investigator is the subject of, or a witness in, the investigation and such agency is composed of any combination of 35 or fewer law enforcement officers. • In the event that an agency exercises this option, the outside agency’s investigator shall present the findings without any disciplinary recommendation to the employing agency. [Ch. 2020 -104]

When an investigative report or summary, is prepared, the investigator preparing the report must, at the time it is completed: • verify that the contents of the report are true and accurate based upon the person’s personal knowledge, information, and belief; and • include the following statement: • “I, the undersigned, do hereby swear, under penalty of perjury, that, to the best of my personal knowledge, information, and belief, I have not knowingly or willfully deprived, or allowed another to deprive, the subject of the investigation of any of the rights contained in ss. 112. 532 and 112. 533, Florida Statutes. ”

A complaint filed against a law enforcement officer with a law enforcement agency and all information obtained pursuant to the investigation by the agency of the complaint is confidential and exempt until the investigation ceases to be active, or until the agency head or the agency head’s designee provides written notice to the officer who is the subject of the complaint, either personally or by mail, that the agency has either: • • • concluded the investigation with a finding not to proceed with disciplinary action or to file charges; or concluded the investigation with a finding to proceed with disciplinary action or to file charges. [F. S. 112. 533(2)(a)] Exception to confidentiality provision: • Subject officer and their legal counsel/representative may review the complaint and all statements made by the complainant, witnesses and all existing evidence, immediately before the beginning the investigative interview. [F. S. 112. 533(2)(a)2. ] • The complaint and information shall be available to law enforcement agencies, correctional agencies, and state attorneys in the conduct of a lawful criminal investigation. [F. S. 112. 533(2)(c)]

“Police Officers’ Bill of Rights” [F. S. 112. 532] • Apply to any law enforcement officer, as defined in F. S. 112. 531, who is under investigation and subject to interrogation that might lead to disciplinary action, suspension, demotion, or dismissal.

The following rights are afforded to officers: • • • the interrogation shall be conducted at a reasonable hour, preferably at a time when the officer is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required; • • the interrogation shall take place either at the office of the command of the investigating officer or at the office of the local precinct or police unit, in which the incident allegedly occurred; all questions directed to the officer under interrogation shall be asked by or through one interrogator during any one investigative interrogation; interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary; the officer under interrogation may not be subjected to offensive language or be threatened with transfer, dismissal, or disciplinary action; no promise or reward may be made as an inducement to answer any questions; the formal interrogation, including all recess periods, must be recorded on audio tape, or otherwise preserved in such a manner as to allow a transcript to be prepared • • no unrecorded questions or statements. a copy of any recording of the interrogation must be made available to the subject officer no later than 72 hours, excluding holidays and weekends, following said interrogation; if the officer is under arrest, or is likely to be placed under arrest as a result of the interrogation, they shall be completely informed of all or their rights before commencing the interrogation; the subject officer has the right to be represented by counsel or any other representative of their choice, • the representative shall be present at all times during the interrogation;

• • The investigation must be completed and notice of discipline must be provided to the subject officer within 180 days from the date a person, authorized by the agency, receives notice of the allegation. The 180 day period applies to any allegation or complaint of misconduct regardless of the origin of the complaint • • TIME LIMITATIONS F. S. 112. 532(6)(a) Prior to July 1, 2020, the 180 day limitation did not apply to internal complaints. [Ch. 2020 -104] 180 day period may be tolled under the following circumstances: • • • a specific timeframe is agreed upon by the subject officer; • if in a multijurisdictional investigation, the limitations period needs to be extended for a reasonable time to facilitate the coordination of the agencies involved; • • for the time the matter is being criminally investigated and prosecuted; if the investigation involves an officer who is incapacitated or otherwise unavailable; emergencies or natural disasters during the time period wherein the Governor has declared a state of emergency within the jurisdictional boundaries of the concerned agency; and during the time that the officer’s compliance hearing proceeding is continuing beginning with the filing of the notice of violation and a request for a hearing and ending with the written determination of the compliance review panel or upon the violation being remedied by the agency.

Reopening of an Investigation F. S. 112. 532(6)(b) • Significant new evidence has been discovered that is likely to affect the outcome of the investigation, and • The evidence could not have reasonably been discovered in the normal course of investigation or the evidence resulted from the pre-disciplinary response to the officer. • Investigation must be completed within 90 days from date reopened.

APPLICABLE CASE LAW Demmings v. Orange County Citizens Review Board, 15 So. 3 d 604 (Fla. 5 th DCA 2009) Facts: • Orange County charter created a CRB to investigate citizen complaints against deputies and to review the sheriff’s internal departmental investigations into those complaints. The CRB was also granted the power to subpoena witnesses, administer oaths, take testimony and require production of evidence. • Deputy Jenny, who was assigned to the Sheriff’s Juvenile Arrest and Monitor Unit, was investigating a complaint that J. M. , a seventeen-yearold juvenile male on probation for aggravated assault with a deadly weapon, was in violation of his court-ordered curfew. Jenny ultimately arrested J. M. for the curfew violation, and J. M. later filed a complaint alleging that Jenny had used excessive force during the arrest. • • The Sheriff’s Professional Standards Division investigated the complaint and determined that J. M. ’s complaint was meritless. • • This petition was rejected on procedural grounds, and the CRB served Jenny with a second subpoena. • • • The CRB filed an action in circuit court seeking to enforce its subpoena. • Sheriff appealed. After completion of the Sheriff’s internal investigation, the CRB initiated its own independent investigation. As part of the investigation, the CRB issued a subpoena to Jenny, ordering him to appear before the CRB for questioning. Jenny contested the validity of the subpoena, filing a petition for emergency writ of prohibition or alternative petition for writ of certiorari and contending that the CRB lacked the power to subpoena him as a matter of law. Jenny’s counsel then appeared at the CRB hearing, again objecting to issuance of the subpoena and refusing to subject Jenny to questioning by the CRB. Sherriff also filed a Declaratory Judgment action contesting the CRB’s authority to independently investigate J. M. ’s complaint. The two cases were consolidated, and the court held that the CRB was authorized to independently investigate J. M. ’s complaint against the deputy.

th 5 DCA’S Decision Court held that F. S. 112. 533 “conveys a clear and definite directive that when a complaint is registered against a law enforcement officer, the employing agency is the only local governmental entity authorized to investigate that complaint”.

APPLICABLE CASE LAW D’Agastino v. City of Miami, 220 So. 3 d 410 (Fla. 2017) Facts: • City of Miami Civilian Investigative Panel (CIP) • • An independent body designed to investigate and review instances of alleged police misconduct, and review police policies and procedures, with the ultimate goal of making recommendations to the relevant law enforcement agency. A complaint was filed with the CIP against Lt. D’Agastino for alleged misconduct that had occurred during a traffic stop. MPD’s IA fully investigated the matter. IA mailed a letter to the complainant indicating that it had completed its investigation and that its findings were “inconclusive” as to the alleged misconduct “because insufficient evidence exists to prove or disprove the allegation. ” After the letter from IA was issued, the CIP issued a subpoena to Lt. D’Agastino directing him to appear before the CIP to testify. Lt. D’Agastino filed an action in the circuit court alleging that the CIP’s investigative authority conflicts with F. S. 112. 533(1). Question before the Court: Does the PBR preempt the activities of other review panels?

Florida Supreme Court’s Holding • Court examined F. S. 112. 533 and held that the PBR preempted the CIP authority to issue subpoenas to officers. • Court also noted that this opinion dealt only with the issue of the CIP’s subpoena power and does not prohibit future challenges to other functions of the board that might intrude on the field of disciplining officers.