>> NEXT CASE IS RODRIGUEZ VERSUS MIAMI-DADE COUNTY. YOU MAY BEGIN. >> GOOD MORNING. ERVIN GONZALEZ ON BEHALF OF RODRIGUEZ. I'M HERE WITH BARBARA

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1 >> NEXT CASE IS RODRIGUEZ VERSUS MIAMI-DADE COUNTY. YOU MAY BEGIN. >> GOOD MORNING. ERVIN GONZALEZ ON BEHALF OF RODRIGUEZ. I'M HERE WITH BARBARA SILVERMAN, MY LAW PARTNER. IF IT PLEASE THE COURT. WE'RE HERE TODAY TO ASK THE COURT TO REVERSE THE THIRD DIRECT COURT OF APPEALS ON TWO DIFFERENT GROUNDS. ONE ON ACCEPTANCE OF JURISDICTION OF A CASE ON CERTIORARI. AND SECOND ISSUE IS THAT THEY IN ESSENCE FOUND THERE WAS A SOVEREIGN IMMUNITY PREVENTING THE CASE FROM GOING FORWARD. IN REVERSING THE TRIAL COURT'S DENIAL OF A MOTION FOR SUMMARY JUDGMENT. THE FACTS OF THE CASE ARE IMPORTANT SO I WILL BRIEFLY GO INTO SOME OF THE KEY POINTS. THIS CASE THE SHOOTING OF A CIVILIAN BY A POLICE OFFICER. THE CIVILIAN IS MR. RODRIGUEZ WHO OWNS A STORE IN MIAMI-DADE COUNTY. ON VALENTINE'S DAY HE RECEIVED A CALL IN THE MIDDLE OF THE NIGHT THAT THE BURGLAR ALARM HAD GONE OFF. HE DROVE OVER. HE IS A FORMER MARINE. HE HAS A LICENSE AND REGISTERED HANDGUN. HE DROVE OVER TO HIS BUSINESS AND SAW THAT THERE WERE INDIVIDUALS IN HIS STORE. AS HE CAME OUT OF HIS VEHICLE WITH HIS HANDGUN, HE WAS AMBUSHED BY A POLICE OFFICER -- >> SINCE YOU WANT TO GO INTO THE FACTS YOU'RE GOING TO THE AMBUSH ISSUE. THE VIDEO WAS IN BEFORE US AND YOU WANT US TO REVISIT THE FACTS AS TO WHETHER THE POLICE CAR CAME UP AT THE SAME TIME? YOU KNOW, WHAT'S THE, WHAT IS THE SIGNIFICANCE OF THE FACT, IF IT'S, AN EMERGENCY EXCEPTION THEN ISN'T THAT SOMETHING THAT UNDER KAISNER AND ITS PROGENY

2 SHOULD BE SUBJECT TO SOVEREIGN IMMUNITY, NOT LACK OF A DUTY OF CARE BUT A SOVEREIGN IMMUNITY WHERE YOU DON'T GET SUED? YOU'RE SAYING OBVIOUSLY IF A GUY IS GOING AND HE IS TRYING TO PROTECT HIS BUSINESS AND POLICE COME AND AMBUSH HIM AND SHOOT WITHOUT REASON, THAT IS NOT EVEN, I MEAN THAT IS PROBABLY A CRIME THE POLICE HAVE COMMITTED. BUT DOESN'T THE DVD, THE VIDEO BELIE WHAT YOU SAID ABOUT THE FACTS? >> I BELIEVE NOT SPECIALLY WHEN READ IN CONJUNCTION WITH THE EXPERT MANNING'S AFFIDAVIT THAT CLEARLY ESTABLISHES, ESTABLISHES NUMEROUS QUESTIONS OF FACT ON WHAT REALLY HAPPENED. THE VIDEO DOES NOT TELL THE ENTIRE STORY, NOR DOES IT ACCURATELY CONVEY, WE CAN'T HEAR WHEN THE FIRST SHOTS WERE FIRED. WE DON'T KNOW EXACTLY WHAT HAPPENED. BUT THE CRUX OF THE CASE REALLY IS THAT THE POLICE OFFICER FAILED TO FOLLOW ALL OF THE PROCEDURES THAT ARE SUPPOSED TO BE FOLLOWED FOR THE USE OF DEADLY FORCE. >> SO THIS IS, IT WOULD BE THEN AN OPERATIONAL DECISION? >> ABSOLUTELY. >> ONCE IT IS OPERATIONAL YOUR VIEW WOULD BE UNDER ROE YOU DO NOT ADDRESS THIS AS, WELL, CERTAINLY DON'T ADDRESS IT AS CERT BUT SHOULDN'T BE A CATEGORY OF NONFINAL APPEALABLE ORDER. >> I'M A LITTLE DISJOINTED BUT I DON'T WANT TO MAKE THE ERROR I SAW SOME OF MY COLLEAGUES CASES NOT ANSWERING DIRECTLY. THE KAISNER CASE AND EMERGENCY DISCRETION EXCEPTION DOES NOT APPLY IN THIS CASE BECAUSE IT DOES NOT INVOLVE A SITUATION WHERE THE POLICE WERE THRUST INTO AN EMERGENCY. >> BUT THE POLICE HERE ARE RESPONDING TO A, AN ALARM.

3 A BURGLARY IN PROGRESS. I GUESS YOU COULD TAKE THE VIEW THAT WHEN EVER THEY GET AN ALARM ABOUT A BURGLARY IN PROGRESS THEY OUGHT TO WAIT UNTIL THE DUST SETTLES AND THEN MAYBE SURE NOBODY'S THERE AND GO SEE WHAT HAPPENED. THAT IS NOT THE WAY POLICE RESPOND TO CALLS ABOUT BURGLARIES IN PROGRESS. AND YOUR CLIENT HAS AN AFFIDAVIT THAT SAYS HE WAS SHOT FROM BEHIND, ESSENTIALLY. I HAVE A HARD TIME SEEING HOW THAT CAN BE SQUARED WITH WHAT I THINK I'M SEEING ON THE VIDEO WHICH SEEMS TO SHOW THAT HE TURNED AROUND BEFORE, AND WAS FACING THE OFFICER BEFORE HE WAS SHOT. BECAUSE THERE IS NO MOVEMENT OF HIS BODY THAT WOULD INDICATE PRIOR TO THAT, PRIOR EVENT THAT HE HAD SUFFERED A GUNSHOT WOUND. IF HE GETS SHOT IN THE BACK, YOU'RE GOING TO, SEEMS TO ME YOU WOULD SEE SOMETHING. SO WHAT WE HAVE IS THE POLICE GOING IN RESPONSE -- YOU KNOW, HE SUMMONED THEM. HE HAS AN ALARM SET UP AND GOES TO THE POLICE AND HAS THEM COME THERE AND TO SAY THEY SHOULD NOT TREAT THAT AS AN EMERGENCY WHEN THEY SEE ALL THIS ACTIVITY, A MAN IN THE PARKING LOT WITH A GUN AND YOU WILL, THE OTHER THINGS GOING ON AROUND THERE THAT SOME, FOR US TO SIT HERE AND, OR FOR A JURY TO SECOND-GUESS HOW THEY'RE DEAL WITH SUCH A SITUATION SEEMS TO BE HIGHLY PROBLEMATIC. WHY AM I WRONG? >> YOUR HONOR, I'LL ADDRESS IT. YOU BRING UP VERY GOOD POINTS I HAVE ANSWERS FOR ALL OF THEM. IF I'M ALLOWED TO DEVELOP IT I WILL EXPLAIN. NUMBER ONE THE DISPATCHER DID NOT CALL IT AN EMERGENCY. IT WAS 23. IF YOU LOOK AT THE AFFIDAVIT OF MICHAEL MANNING IN THE RECORD

4 ROUGHLY 316. MICHAEL MANNING SAID DISPATCH WAS 23. NOT AN EMERGENCY. FOR IT TO BE EMERGENCY CALL BY THE POLICE DEPARTMENT IT WOULD HAVE TO BE A 23 FOLLOWED BY A NUMBER TWO OR A NUMBER THREE. NUMBER TWO OR NUMBER THREE MAKE IT AN EMERGENCY. SO IT WAS A 23. IN MIAMI-DADE COUNTY THAT IS NOT AN EMERGENCY. IT IS A BURGLARY IN PROGRESS. NO HOSTAGES. IT IS CONTAINED. WHEN THE POLICE OFFICERS GET THERE THE TESTIMONY OF THE POLICE OFFICER -- >> EXCUSE ME, BEFORE YOU MOVE TO YOUR SECOND POINT I GUESS YOU'RE GOING TO MAKE, YOU'RE TELLING ME THE RECORD INDICATES THAT IF A BURGLARY IS CALLED IN, THAT ALONE IS NOT AN EMERGENCY? >> CORRECT. IT IS NOT ALONE AN EMERGENCY AS REFLECTED -- AS REFLECTED BY THE EXCEPTION SET FORTH IN KAISNER DISCUSSED BY THE THIRD DISTRICT IN ROBLES AND THIS COURT IN CITY OF PINELLAS VERSUS BROWN. FOR THE EXCEPTION TO APPLY THE POLICE OFFICER MUST NOT BE THE CAUSE OF THE EMERGENCY AND I WILL EXPLAIN WHY HE IS. NUMBER TWO THERE MUST BE A NEED TO PROTECT CITIZENS. AND THE CHOICES MUST BE, BETWEEN DAMMED IF YOU DO, DAMNED IF YOU DON'T, CHOICE OF TWO EVILS. THE CRUX OF THE CASE WE'RE NOT DISCUSSING IS IMPORTANT. THE POLICE OFFICER FAILED TO USE POLICIES AND PROCEDURES BEFORE USING DEADLY FORCE. HAD HE FOLLOWED THE PROCEDURES THAT IS WHERE THE DISCUSSION IS. WE NEVER GET HERE. BUT HE DISREGARDED RECKLESSLY ALL OF HIS PROCEDURES. HE WAS THE FIRST, FIRST THING HE IS SUPPOSED TO DO LET THE

5 MATTER DEVELOP. OBSERVE. SECURE THE AREA. CALL FOR BACKUP. LOOK FOR, STAY WITHIN HIS CAR. >> THIS IS POLICY ESTABLISHED BY THE POLICE DEPARTMENT OR 23? >> YES. NO, 23 IS THE DISPATCH CALL. THE POLICY FOR USING DEADLY FORCE SET FORTH IN THE RECORD BY OFFICER MANNING, THE EXPERT, AND CLEARLY UNDISPUTED IN THIS RECORD, BEFORE DEADLY FORCE IS USED YOU HAVE TO OBSERVE, CONTAIN, CREATE A PERIMETER, STAY WITHIN YOUR VEHICLE OF THE LOOK FOR A SAFE PLACE NOT TO BE SHOT. >> IF SOMEBODY POINTS A GUN AT YOU, IF A LAW ENFORCEMENT OFFICER IS CONFRONTED BY SOMEONE WHO POINTS A GUN AT HIM, ONCE HE GETS TO THAT POINT YOU'RE SAYING HE NEVER SHOULD HAVE BEEN IN THE PARKING LOT. >> NO, JUSTICE CANADY, I'M NOT SAYING THAT. HE SHOULD NOT HAVE CHASED HIM DOWN LIKE RAMBO RUNNING BEHIND HIM IN AN OPEN SITUATION WHERE SITUATION ONLY CHANCE HE HAD, MR. RODRIGUEZ WHEN HE TURNED AROUND WAS TO SHOOT HIM. HE THRUST THAT SITUATION UPON HIMSELF. >> HE DIDN'T SHOOT HIM UNTIL HE TURNED AROUND. >> WELL, THE RECORD, ACCORDING TO MR. RODRIGUEZ HE WAS SHOT IN THE REAR END WHICH SPUN HIM AROUND. >> I UNDERSTAND THAT. SEEN THE VIDEO TOO. >> IF YOU LOOK AT THE VIDEO, IT LOOKS LIKE THE SHOTS MAY HAVE COME AROUND WHEN MR. RODRIGUEZ TURNED AROUND. MR. RODRIGUEZ DID NOT KNOW THE POLICE OFFICER WAS THERE. THERE WAS NO SHOUT, POLICE, DROP THE GUN. THE POLICIES AND PROCEDURES WOULD HAVE REQUIRED TO LOOK FOR, LOOK FOR A SAFE PLACE NOT TO BE SHOT, TO SHOUT THE COMMAND, POLICE, DROP THE GUN.

6 TO STAY WITHIN YOUR VEHICLE. TO CREATE A PERIMETER. IF ANY OF THESE POLICIES HAD BEEN FOLLOWED, THAT'S WHERE THE CHOICE IS. THIS DOESN'T HAPPEN. SO IT WASN'T A SITUATION LIKE IN KAISNER. >> KAISNER WAS DICTA. >> CITY OF PINELLAS VERSUS BROWN OR THIRD DISTRICT OPINION OF ROBLES. IT IS BAD IF YOU DO SOMETHING, IT IS BAD IF YOU DON'T. FOR EXAMPLE IN ROBLES THE THIRD DISTRICT WAS CORRECT. WE HAD A HOSTAGE OF SITUATION WITH CHILDREN IN A BUS. THE MAN WITH A BOMB. YOU WILL BLOW UP THE KIDS IN A BUS. THE SHARPSHOOTER SHOOTS AT TERRORIST HITS HIM. SOME SHRAPNEL DAMAGES A CHILD'S EYE. CLEARLY THIS IS CHOICE DAMNED IF YOU DO, DAMNED IF YOU DON'T, A CHOICE BETWEEN TWO EVILS. IN THIS PARTICULAR -- >> I WANT TO GO BACK. WE'RE HERE REALLY, YOU WANT US TO GET TO THE SECOND ISSUE AND SAY THAT THERE'S QUESTIONS OF FACT I'M CONCERNED ABOUT THE CERTIFIED CONFLICT WHETHER THIS SHOULD COME UP BY CERT. >> I UNDERSTAND, YOUR HONOR. >> YOU MAY WANT TO TALK ABOUT THINGS WHY THIS ISN'T AN EMERGENCY. IF YOU'RE NOT FINISHED WITH IT THE FIRST PART. >> I WILL JUMP RIGHT BACK. I PROMISE. THE ISSUES ARE CLEAR. HAD HE FOLLOWED POLICIES AND PROCEDURES. HIS CHOICE WAS DO I FOLLOW POLICY, PROCEDURE, ONE, TWO, OR THREE I WILL ACCEPT IT. THAT IS NOT WHAT HAPPENED HERE. IT WAS NOT A CHOICE AMONG POLICY PROCEDURES. HE CHOSE AMBUSH, WHAT THE EXPERT CALLED TOMBSTONE COURAGE TACTICS WHICH IS RAMBO STYLE POLICE. NOT ACCEPTABLE. NOT APPROPRIATE UNDER THE

7 RULES. IT DOES NOT FALL WITHIN THE EXCEPTION CREATED BY THE COURT FOR EMERGENCY DISCRETION. >> ON THAT TOPIC, DISPATCH WAS NOT AN EMERGENCY. WHEN THE POLICE OFFICER SAW HIM, MR. RODRIGUEZ IN THE PARKING LOT WITH A GUN, DID IT BECOME AN EMERGENCY THEN? >> NO. IT IS NOT AN EMERGENCY UNTIL MR. RODRIGUEZ TURNED AROUND. AND MR. RODRIGUEZ WOULD NOT HAVE BEEN TURNED AROUND HAD HE NOT BEEN STARTLED BY THE POLICE OFFICER WHO FAILED TO FOLLOW POLICIES AND PROCEDURES. IF YOU'RE GOING TO SAY A BURGLARY LIKE JUSTICE QUINCE IS SUGGESTING IS ITSELF A EMERGENCY AS COLLOQUIAL PURPOSES NOT AS THE POLICE DEFINE IT -- >> DIFFICULT TO SEE WHERE A CRIME IS BEING COMMITTED. YOU HAVE A CALL. SEE SOMEONE IN A PARKING LOT WITH A GUN. THAT TO ME SEEMS TO CREATE AN EMERGENCY. >> IT MEANS YOU HAVE TO FOLLOW POLICIES AND PROCEDURES. MEANS YOU HAVE TO FOLLOW THE RULES CREATED FOR THE SAFETY OF THE PUBLIC AND YOURSELF. THE RULES ARE THERE TO PROTECT THE POLICE AND THE PUBLIC. VIOLATING THE RULE. SUPPOSE TO STAY IN THE VEHICLE. STAY IN SAFE PLACE TO FIND COVER. DROP THE GUN, SAY, POLICE. HE IS SUPPOSED TO TAKE FIVE OR SIX SEPARATE STEPS OUTLINED IN THE EXPERT OPINIONS AFFIDAVIT WHICH HE FAILED TO DO. HE DID THE EXACT OPPOSITE WHAT HE IS TRAINED TO DO IN THE ACADEMY AND TRAINED TO DO BEFORE USING DEADLY FORCE. HE CAN NOT BE REWARDED FOR USE OF DISCRETION UNDER EXCEPTION OF EMERGENCIES UNDER THESE CIRCUMSTANCE. THIS IS NOT WHAT THE COURT

8 INTENDED TO DO. >> YOU CAN GO AHEAD. ADDRESS JUSTICE PARIENTE. >> THE REASON I ADDRESS THE SECOND POINT FIRST IS OUR POSITION IS NO MATTER WHAT THIS COURT DECIDES TO DO ON THE FIRST ISSUE, IT DOESN'T AFFECT US BECAUSE OF THE MATERIAL FACTS AND THE THIRD DISTRICT SHOULD BE REVERSED. BUT THE THIRD DISTRICT ERRED BECAUSE THERE WAS NO ELEMENTS OF CERTIORARI JURISDICTION. THERE HAS TO BE DEVIATION FROM THE ESSENTIAL REQUIREMENT OF LAW CAN'T AMOUNT TO MANIFEST INJUSTICE. NUMBER TWO, PREJUDICES THE ENTIRE CASE. AND NUMBER THREE, CANNOT BE SPECIFICALLY CORRECTED BY DIRECT APPEAL. SO THEY DON'T, THE THIRD DISTRICT DID NOT HAVE CERT REVIEW. THIS COURT IN THE DEPARTMENT OF EDUCATION VERSUS ROE SPECIFICALLY SAID THAT ISSUES OF THE DENIAL OF THE DEFENSE OF SOVEREIGN IMMUNITY DID NOT ALLOW FOR INTERLOCUTORY REVIEW. THAT CASE CAME UP ON CERIT REVIEW INITIALLY. FIRST DISTRICT COURT OF APPEALS SAID IT IS NOT APPROPRIATELY CALLED FOR CERT BECAUSE IT DOESN'T MEET THE REQUIREMENT OF CERT REVIEW. SO WE'LL TREAT IT AS A MOTION FOR INTERLOCUTORY REVIEW. >> LET ME ASK YOU A QUESTION. WHAT IF THIS CASE WAS YOUR ALLEGATIONS WERE SOLELY ON THE BASIS THAT THE POLICE DEPARTMENT IN MIAMI-DADE COUNTY DID NOT ENACT PROPER PROCEDURES AS ARE USED, SAY, IN OTHER POLICE DEPARTMENTS AROUND THE COUNTRY OR, FOR HOW YOU RESPOND TO A BURGLARY. >> IT IS DISCRETIONARY. >> WOULD THAT THEN -- QUESTION IS THERE. WHEN IT IS, THAT IS STILL DISCRETION?

9 YOU DON'T THINK THAT WOULD BE PLANNING ON THE PART OF THE POLICE DEPARTMENT, WHAT POLICIES THEY'RE GOING TO PUT IN PLACE? >> YES, POLICY DISCRETION. THEREFORE, IMMUNE FROM LIABILITY. AGREE WITH YOU. -- IN THE LAWSUIT. >> IF THAT WERE THE ISSUE AND YOU BROUGHT IT AND THE JUDGE DENIED SUMMARY JUDGMENT BASED ON NOT A FAILURE, A LACK OF A DUTY BUT ON THE OPERATIONAL VERSUS PLANNING, WOULD THAT BE APPROPRIATE FOR CERT? >> NOT UNLESS THE COURT CHANGES THE RULES. THIS COURT HAS THE POWER TO CHANGE THE RULE. ROSE SPECIFICALLY SAID IF YOU SUE UNDER SOVEREIGN IMMUNITY BECAUSE YOU DO NOT SUE THE INDIVIDUAL DIRECTLY THERE IS NO CHILLING EFFECT ON THE INDIVIDUAL. >> BUT DOES ROE, DOES ROE ACTUALLY ADDRESS CERT? STARTS OFF WITH PETITION FOR CERT AND THEY GO BACK AND FORTH. WHEN IT GETS TO THIS COURT, DON'T WE CONSIDER IT AS SIMPLY AN ISSUE OF WHETHER THE NONFINAL APPEAL RULE SHOULD APPLY AND BE EXPANDED AND WE DON'T REALLY SPECIFICALLY ADDRESS CERT IN THIS CONTEXT? >> YOU'RE CORRECT. PROCEDURALLY IT CAME BEFORE THE COURT FIRST AS CERT THROUGH THE FIRST DISTRICT. THE FIRST DISTRICT TREATED IT IS AN INTERLOCUTORY APPEAL. THIS COURT REVIEWED IT AS AN INTERLOCUTORY APPEAL CASE. BUT THE REASONING AND ANALYSIS USED BY THE COURT APPLIES DIRECTLY. IT IS VERY SIMPLE. THE COURT ACTUALLY USES LANGUAGE THERE IS NO PREJUDICE TO A GOVERNMENTAL ENTITY TO DEFEND THE LAWSUIT. THE FACT THEY HAVE TO A DEFEND A LAWSUIT ITSELF IS NOT IN OF ITSELF PREJUDICE THAT CAN NOT

10 BE CURED BY DIRECT APPEAL AT THE END OF THE CASE AND DISCARDED THAT ANALYSIS. WHICH IS EXACT BASIS THAT THE THIRD DISTRICT USED TO DETERMINE THAT THERE WAS AN APPROPRIATE BASIS FOR CERTIORARI. THEY FLY IN THE FACE OF WHAT ROE ALREADY HELD, WHAT THIS COURT ALREADY HELD. >> LET'S LOOK WHAT, THAT REASONING THOUGH. I UNDERSTAND THAT WHEN SOMEONE'S PERSONAL LIABILITY IS ON THE LINE, THAT THAT CONCENTRATES THE MIND SIGNIFICANTLY. IT IS A DISTRACTION AND CONSUMING THING IF PEOPLE ARE SUBJECTED TO PERSONAL LIABILITY. BUT IF WHEN A GOVERNMENTAL ENTITY IS DRAGGED INTO COURT AND IS FORCED TO LITIGATE A CASE FOR WHICH THEY HAVE IMMUNITY FROM SUIT, THEY ARE ALSO SUBJECT TO DISTRACTION. THEY HAVE GOT TO SEND THEIR PEOPLE TO COURT. THEY HAVE GOT TO GO THROUGH THIS WHOLE PROCESS AND AT THE END OF THE DAY THEY WIN BECAUSE THEY'RE IMMUNE, I DON'T KNOW THAT THEIR SOVEREIGN IMMUNITY HAS BEEN RESPECTED THE WAY IT SHOULD BE AND I THINK WE MAY HAVE GIVEN SHORT-SHRIFT TO THE GOVERNMENTAL INTERESTS IN NOT BEING SUBJECTED TO LITIGATION THAT HAS NO BASIS. >> THIS COURT HAS THE POWER TO CHANGE THE RULE TO REQUEST THE FLORIDA BAR'S RULES COMMITTEE TO MAKE THE APPROPRIATE CHANGES. CURRENTLY THAT IS NOT THE LAW. IF THE COURT DETERMINES THAT IT SHOULD BE THE LAW THEN CERTAINLY YOU HAVE THE POWER AUTHORITY AND POWER TO DO SO AND MAY WANT TO DO SO BUT BEFORE YOU DO THAT YOU HAVE TO RECOGNIZE WHAT WILL HAPPEN. THE APPELLATE COURTS WHO ARE ALREADY BURDENED BY ECONOMIC CHALLENGES WILL HAVE A NUMBER

11 OF NEW CASES REVIEWING ALL DENIALS OF MOTIONS TO DISMISS AND DENIALS OF MOTIONS FOR SUMMARY JUDGMENT ON GOVERNMENTAL IMMUNITY CASES. THAT IS A SIGNIFICANT BURDEN ON THE COURT WHICH THIS COURT RECOGNIZED IN THE ROE DECISION AS ONE OF THE REASONS WHY IT WOULD NOT BE AN APPROPRIATE THING TO ALLOW CERT FOR THIS ISSUE. THE SECOND REASON WAS THE CHILLING EFFECT ON INDIVIDUALS, AND THIS COURT DID DISTINGUISH THE IMPACT THAT IT WOULD HAVE ON INDIVIDUALS AS IN TUCKER THAT ALLOWED FOR QUALIFIED IMMUNITY TO BE REVIEWED DIRECTLY BY INTERLOCUTORY APPEAL VERSUS SOVEREIGN IMMUNITY CASES WHERE ONLY THE GOVERNMENT AGENCY OR THE GOVERNMENT ITSELF IS BEING SUED. A MAJOR DISTINCTION IS COURT MADE ALONG WITH THE FLOODGATES ANALYSIS. THIS COURT DECIDES TO CHANGE THAT IT CAN. THAT IS NOT CURRENTLY THE LAW. CURRENTLY WHAT WAS BEFORE THE THIRD DISTRICT COURT OF APPEAL WAS ROE AND TUCKER. THIS CASE DOES NOT FALL UNDER EITHER ONE AND THEREFORE JURISDICTION WAS INAPPROPRIATE. NOT WITHSTANDING WHETHER THIS COURT DECIDES TO MAKE THE PROCEDURAL CHANGE OR NOT, AND IT MAY BE RETROACTIVE IF IT IS PROCEDURAL, THIS CASE STILL SHOULD BE REVERSED BECAUSE THE THIRD DISTRICT ERRED IN ACTING AS A SUPER JUROR IN DECIDING QUESTIONS OF FACT THAT WERE CLEARLY OUTLINED BY THE EXPERT'S OPINION, FOUND BY THE TRIAL COURT AND THAT NO MATTER WHAT HAPPENS WITH POINT ONE, THE CASE SHOULD BE REVERSED ON THOSE ISSUES. >> ON THAT ISSUE WE'VE GOT THIS VIDEOTAPE AND SEEMS TO BE, AT LEAST ARGUABLY, IN CONFLICT WITH THE AFFIDAVIT, CLIENT'S AFFIDAVIT.

12 LET ME GIVE YOU A HYPOTHETICAL. IF WE HAVE VIDEO EVIDENCE AND AUTHENTICITY OF IT IS NOT IN ANY WAY CHALLENGED, THAT SIMPLY CAN NOT BE RECONCILED WITH AN AFFIDAVIT IN A SUMMARY JUDGMENT PROCEEDING AND THE COURT, AS THE U.S. SUPREME COURT HAS DONE, DISCOUNT THE AFFIDAVIT IN LIGHT OF --. >> YES, BUT IT IGNORES THE EXPERT TESTIMONY AND THE POLICY AND PROCEDURE MANUALS THAT WERE TOTALLY DISREGARDED. THAT IS A MATERIAL PART OF THE CASE. THE CAN'T BE IGNORED AND CAN'T BE DISREGARDED. THE EXPERT TESTIMONY, THE AFFIDAVIT THAT CAN BE FOUND STARTING ON PAGE 313 OF THIS RECORD, RELEVANT PARTS IN 316, CLEARLY ESTABLISH THAT NONE OF THE RULES BEFORE USING DEADLY FORCE WERE FOLLOWED. THAT THE POLICE OFFICER ACTED RECKLESSLY. THAT HE ENDANGERED HIS LIFE AND THE LIFE OF MR. RODRIGUEZ INAPPROPRIATELY. AND THOSE ARE QUESTIONS THAT ARE APPROPRIATE FOR THE FACT-FINDER. SO WE REQUEST OF THIS COURT REVERSE THE THIRD DISTRICT COURT OF APPEAL AND ALLOW THE CASE TO GO BACK FOR TRIAL. I RESERVE WHATEVER TIME LEFT I HAVE FOR REBUTTAL, THANK YOU. >> SEEMS TO ME THAT WHAT MR. GONZALEZ IS ARGUING IS THAT THE POLICY AND PROCEDURES WERE NOT FOLLOWED AND, THEREFORE, THAT WHAT WE ARE TALKING ABOUT HERE IS NOT A DISCRETIONARY PLANNING LEVEL, BUT AN OPERATIONAL DECISION. IF WE DECIDE THAT'S CORRECT EVEN THOUGH IT MAY BE THAT YOU'RE RIGHT ON THE SECOND PART WHICH IS THAT IT WAS ENOUGH THAT A REASONABLE PERSON WOULD DO WHAT THE POLICE OFFICER DID, DO YOU AGREE THAT IT'S-- OPERATIONAL, THAT IT'S NOT SUBJECT, IT NEVER COULD BE SUBJECT TO CERT BASED

13 ON OUR PRIOR CASE LAW? >> I WOULD AGREE IF THERE IS AN OPERATIONAL ACTIVITY, THEN THE CONDUCT ACTUALLY FALLS INTO THE WAIVER. HOWEVER, I WOULD LIKE TO RESPOND TO YOUR QUESTION ABOUT KAISNER. KAISNER SPECIFICALLY SAYS IT WAS A CASE WHERE IT WAS AN OPERATIONAL ACTIVITY. IT WAS A TRAFFIC, IT WAS A TRAFFIC STOP VIOLATION. BUT WHAT IT SAID WAS THAT THE RESULT THEY REACHED WOULD NOT BE THE SAME IF THE OFFICERS HAD BEEN CONFRONTED WITH AN EMERGENCY REQUIRING SWIFT ACTION. AND I THINK IT'S THAT WORD "CONFRONTED" WHICH IS SO CRITICAL TO YOUR ANALYSIS. >> YOU SEE, BUT THE PROBLEM I HAVE ABOUT KAISNER IS THAT'S REALLY DICTA, AND EVEN THOUGH THERE MAY BE A SEPARATE POLICY FOR WHY THERE SHOULD BE IMMUNITY OR LESS LIABILITY BECAUSE OF EMERGENCIES, I REALLY GET CONCERNED ABOUT THIS THOUGHT OF -- AND, AGAIN, I'M NOT CRITICIZING WHAT, YOU KNOW, WHAT THE POLICE OFFICER DID OR NOT, BUT THAT WE -- THERE ARE ACROSS THE COUNTRY LOTS OF POLICE SHOOT, YOU KNOW, POLICE SHOOT AND THERE ARE INVESTIGATIONS AND THERE ARE LAWSUITS. AND I NEVER THOUGHT THAT THE OPERATIONAL DISCRETIONARY WAS LIKE THE HIGH-SPEED CHASE CASES, THAT THOSE MAY BE CASES WHERE THEY'RE NOT OFF DUTY, OR THEY'RE NOT LIABLE. BUT AS TO THE PLANNING LEVEL SOVEREIGN IMMUNITY KINDS OF THINGS THAT WE TALKED ABOUT IN COMMERCIAL CARRIER, AND I THINK WE'VE KIND OF PUT THE TWO TOGETHER TO SAY THEY'RE ALL SEPARATION OF POWERS ISSUES WHEN REALLY MAYBE THERE'S AN EMERGENCY EXCEPTION AND THERE SHOULD BE A JUDGMENT OF LAW AS A MATTER OF POLICY, BUT IT DOESN'T HAVE TO DO WITH THE WAIVER OF SOVEREIGN IMMUNITY LIKE IF WE WERE CRITICIZING THE KIND OF

14 POLICIES THE POLICE HAD. DO YOU SEE THAT DISTINCTION? AND THAT'S WHY -- AND KAISNER AND, ALSO, THE OTHER CASE, PINELLAS PARK, WHERE THEY'D ALREADY BEEN LITIGATED, THEY DIDN'T COME UP AS INTERLOCUTORY CASES. >> YES, WELL, THERE'S TWO STEPS TO IT. FIRST, YOU HAVE TO DECIDE WHETHER IT'S AN OPERATIONAL FUNCTION. WHAT THOSE TWO CASES ARE BOTH SAYING IS WHEN A POLICE OFFICER'S RESPONDING TO A SERIOUS EMERGENCY, HIS OR HER ACTIONS WITHIN THAT TIME FRAME WILL BE TANTAMOUNT TO AN EXECUTIVE ACT, AN EXECUTIVE DISCRETIONARY ACT. >> THAT ALMOST DEFIES COMMON SENSE. LAW ENFORCEMENT, THAT'S WHAT THEY'RE FOR, IS TO BECOME INVOLVED IF THERE IS A PROBLEM, AND THEY'RE CONFRONTED WITH PROBLEMS DAILY, HOURLY, MINUTE BY MINUTE. AND IF WE HAVE A BLANKET RULE THAT YOU CANNOT REVIEW THE MANNER IN WHICH THEY RESPOND TO THE CIRCUMSTANCES THAT THEY FACE ON AN OPERATIONAL LEVEL, ON THE STREETS ENGAGING WITH THE PEOPLE, THEN WE'VE GONE BACK TO, IT SEEMS TO ME, A TOTAL IMMUNITY FOR GOVERNMENT OPERATIONS. WHY CAN'T THIS BE HANDLED UNDER A CASE LIKE SCOTT V. OPELIKA, WHERE -- ARE YOU FAMILIAR WITH THAT CASE? >> I'M NOT, YOUR HONOR. >> THAT'S A CASE FROM DADE COUNTY WHERE AN OFFICER FROM OPELIKA CAME UPON, WAS SUMMONED TO AN EVENT, AND THERE HAPPENED TO BE SOME GUNFIRE EXCHANGE, AND THE GUY WHO GOT SHOT WANTED TO SUE THE OFFICER AND THE CITY. AND THE THIRD DISTRICT AFFIRMED A SUDDEN EMERGENCY CONSTRUCTION SO THAT YOU EVALUATE THE POLICE ACTIVITY FROM THAT SUDDEN EMERGENCY NOT OF THEIR OWN MAKING IS WHAT'S REQUIRED, BUT DON'T WE GET INTO JUST

15 EVERYTHING'S IMMUNE IF WE ONLY VIEW THIS AS WHETHER IT'S DISCRETIONARY OR NOT? IT'S WHAT THEY'RE DOING ON THE STREETS IN APPLYING WHAT POLICY'S BEEN ESTABLISHED, SEEMS TO ME THAT WE HAVE JUST GONE BACK TO ABSOLUTE IMMUNITY. >> I THINK THAT IT'S THE NATURE OF THE EMERGENCY. I THINK MOST CASES ARE, MOST CASES THAT THIS COURT'S CONSIDERED KAISNER AND PINELLAS PARK, YOU WERE ALL VERY CLEAR THERE WAS NOT AN EMERGENCY, SO WE WILL SEE IF THE OFFICERS WHO HAD THE ABILITY TO TAKE CONTROL OF OUR SITUATION, TO EXERCISE SOME CONTROL OVER THEIR RESPONSE AND HAVE THE ABILITY TO THINK THROUGH POLICY AND WHAT SHOULD BE DONE FROM HERE ON OUT. THOSE CASES ARE DISTINGUISHABLE FROM THE ROBLES CASE AND FROM, I WOULD ARGUE, THERE'S A FEDERAL CASE CALLED SMITH V. CITY OF PLANTATION WHERE POLICE OFFICERS -- AND THIS IS APPLYING FLORIDA LAW, OF COURSE -- RESPONDED TO A HOSTAGE SITUATION, AND THEY HAD 80 SECONDS IN THE HOME TO TRY AND TAKE THE SITUATION UNDER CONTROL, BUT BECAUSE OF THE HIGH LEVEL NATURE OF THE EMERGENCY, WHEN THERE WAS AN, ULTIMATELY, AN EXPLOSION AT THE HOME, THE OFFICERS WERE GIVEN THE -- THE CITY, RATHER, WAS GIVEN THE BENEFIT OF IMMUNITY IN THOSE CIRCUMSTANCES. I THINK IT'S ALSO IMPORTANT TO REMEMBER THAT THIS IS A CASE -- >> BUT THAT WAS IN FEDERAL COURT. WAS THAT A 1983 ACTION? >> NO. WELL, THERE WAS A 1983, BUT IT WAS INTERPRETING A FLORIDA LAW NEGLIGENCE CASE, AND I SAY THAT BECAUSE IT'S IMPORTANT TO KEEP IN MIND WHAT IS AND WHAT IS NOT AT ISSUE HERE. THIS IS NOT A CASE WHERE IF THE PLAINTIFF HAD WANTED TO, HE COULD HAVE PURSUED CLAIMS AND DID AT ONE POINT PURSUE CLAIMS

16 FOR A 1983 BATTERY WHICH IS REALLY WHAT IS POTENTIALLY AT ISSUE HERE. BUT HE VOLUNTARILY DROPPED THOSE CLAIMS MANY YEARS AGO, SO THE -- >> WELL, IF HE CAN BRING THE 1983 ACTION AND A COURT FOR 1983 CAN BE BROUGHT IN STATE COURT, CORRECT? >> ABSOLUTELY. >> THERE WAS GOING TO BE A JURY TO EVALUATE THOSE ACTIONS, AREN'T WE GOING BACK TO THIS IDEA THAT SOMEHOW IN TERMS OF WHAT WE WERE TALKING ABOUT SEPARATION OF POWERS WHERE THE JUSTICE SYSTEM IS GOING TO LEAVE IT ALONE IS NOT MEANT IN TERMS OF, CERTAINLY, FOR CERT TO APPLY TO EVERY TIME THAT THERE'S A CLAIM THAT THE POLICE ARE RESPONDING TO, QUOTE, AN EMERGENCY. AND THAT IS MY CONCERN WITH THE THIRD DISTRICT'S OPINION BECAUSE THE NUMBER OF -- IT GETS APPEALED AS CERT, THE NUMBER OF THINGS THAT A COURT HAS TO GO THROUGH, APPELLATE COURT ON A NONFINAL ORDER, CREATES THE RECORD IS DIFFERENT, YOU KNOW, YOU HAVE TO HAVE THE APPENDIX. IF WE'RE GOING TO SAY THERE SHOULD BE POLICE EMERGENCY CLAIMS SHOULD BE RAISED ON NONFINAL, THEN WE SHOULD -- BY RULE. BUT I'M CONCERNED THAT THE VEHICLE OF CERT AS BEING THE VEHICLE THAT YOU TRY TO FERRET OUT THOSE THINGS. DO YOU SEE THE DIFFERENCE THERE? AND TELL ME WHY THAT'S NOT A PROBLEM FOR THE APPELLATE COURT. >> IN TERMS OF THE BURDEN THAT WOULD PUT ON THEM? >> WELL, TRYING TO MAKE ALL THOSE JUDGMENTS. LIKE HERE HE WAS SAYING IT WAS A 23, NOT A HERE HE'S SAYING THAT THE POLICE DIDN'T SAY "STOP, POLICE," WHICH CERTAINLY DISTINGUISHES BETWEEN YOU THINK YOU'RE THE OWNER RESPONDING TO A BURGLARY, AND ALL OF A SUDDEN SOMEONE HAS A GUN.

17 YOU DON'T THINK THEY'RE POLICE, YOU THINK THEY'RE THE PEOPLE THAT ARE TRYING TO ROB YOU, THAT'S A BIG DIFFERENCE IF HE DIDN'T EVER STAY "STOP, POLICE," TO ME. HOW IS THAT NOT SOMETHING THAT IS A FACTUAL CASE, AND EVEN IF IT IS OR ISN'T, THAT SHOULDN'T BE REVIEWED BY THE THIRD DISTRICT OR ANY APPELLATE COURT AFTER A JUDGE SAYS, NO, THERE'S FACTUAL DISPUTES HERE? >> WELL, THERE'S A BUNCH OF QUESTIONS IN THERE. I'M GOING TO TRY AND ANSWER THE ONE INVOLVING SOVEREIGN IMMUNITY BECAUSE I THINK WHAT'S IMPORTANT IS THAT IF YOU ACCEPT THAT YOU ESTABLISHED THAT THERE IS AN EMERGENCY EXCEPTION, THAT GIVES THE COUNTY SOVEREIGN IMMUNITY FROM SUIT, AND THERE HAS NEVER BEEN A CASE THAT I'VE SEEN AT THIS LEVEL, AT THE SUPREME COURT LEVEL OR BESIDES THE SUGGESTIONS IN ROE, AND KEEP IN MIND WE HAVE THE WALLACE CASE. THERE'S NEVER BEEN A CASE THAT HAS FOUND ANY KIND OF IMMUNITY FROM SUIT TO NOT CAUSE IRREPARABLE HARM AS IN, FOR EXAMPLE, TUCKER TALKED ABOUT THAT IMMUNITY CAUSING HARM IF ERRONEOUSLY RULED ON. YOU HAVE IMMUNITY UNDER THE NEUROLOGICAL INJURIES COMPENSATION PLAN. YOU HAVE THE CEDARS HEALTH CARE CASE TALKING ABOUT HOSPITAL LICENSING STATUTES. MY POINT BEING THAT ONCE YOU FIND THE SOVEREIGN IMMUNITY SUIT APPLIES, THERE IS AUTOMATIC IRREPARABLE HARM, AND THAT'S WHAT GETS US TO THE COURTHOUSE DOORS THROUGH CERT. BUT I DO WANT TO CORRECT SOME THINGS THAT HAVE BEEN SAID ABOUT THE RECORD -- >> JUST BEFORE YOU LEAVE THE CERT, REALLY FROM AN OVERALL POLICY VIEWPOINT RATHER THAN HAVE A MISHMASH OF CASES GOING ON APPEAL, GOING ON CERT AND ALL THAT, WOULD IT NOT BE BETTER THAT WE WOULD HAVE A RULE AND AT

18 ONE TIME WE EVEN PASSED A RULE WITH REGARD TO WORKER'S COMP IMMUNITY? TO HAVE AN INTERLOCUTORY RULE UPON ALL IMMUNITIES? >> IT WOULD CERTAINLY BE -- >> I MEAN, ISN'T THAT A MORE WORKABLE SITUATION THAN THE HIT AND MISS OF CERT EVEN FROM THOSE THAT SAY THEY'RE IMMUNE THAT GET CONSISTENCY IN THE LAW, WOULD SEEM TO ME? >> I ABSOLUTELY AGREE, IT WOULD BE THE SIMPLEST WAY. I WANT TO DO ONE CONCERN ABOUT THE VOLUME OF CASES. ALTHOUGH 768 IS A LIMITED WAIVER BECAUSE THERE ARE CASES, DISCRETIONARY FUNCTION CASES, MY CASE I WOULD ARGUE THAT THE WAIVER DOES NOT APPLY, WHEN IN PRACTICE AT LEAST IN THE COUNTY AND FROM WHAT I'VE SEEN, THE WAIVER APPLIES TO A LARGE NUMBER OF CASES, A LARGE -- MEANING THE AVERAGE SLIPS AND FALLS, THE AVERAGE BUS ACCIDENT. THAT'S YOUR VOLUME OF CASES THAT THE STATE HAS WAIVED IMMUNITY FROM. SO THOSE CASES WOULD ALWAYS HAVE TO GO TO TRIAL BECAUSE THERE IS NO IMMUNITY FROM SUIT FOR THOSE CASES. >> YOU GET THE SAME THING WHEN YOU TRY TO CONVERT EVERYTHING THAT POLICE WORK INVOLVES INTO DISCRETIONARY LEVEL BECAUSE THE DECISION TO OPERATE A MOTOR VEHICLE MORE RAPIDLY THAN ONE SHOULD. I WANT TO MAKE THE DECISION, MY DISCRETION WAS I PUSHED THE GAS PEDAL A LITTLE HARDER. I MEAN, YOU CAN ALWAYS SAY THAT THERE IS DISCRETION IN HOW YOU BEHAVE. >> BUT THIS COURT HAS BEEN CONSISTENT IN LIMITING THAT, I THINK -- >> NO, I THINK REALLY WHAT IT IS IS THE POINT IS TALKING ABOUT WHAT DOES POLICY-LEVEL DISCRETION MEAN? TO ME, I HAVE ALWAYS OPERATED UNDER THE BASIS THAT IT'S NOT THE STREET LEVEL APPLICATION OF

19 WHAT A GOVERNMENT -- IT'S THE CITY COUNCIL, IT'S THE AT HOME, THE BOARD OF COUNTY COMMISSIONERS, IT'S THE PUBLIC SAFETY DEPARTMENT RULES, REGS, THAT KIND OF THING. NOT WHAT HAPPENS OUT ON THE STREET. BECAUSE, I MEAN, EVERYBODY MAKES A DECISION TO DO SOMETHING. I MEAN, IT'S NOT INTENT, BUT YOU MAKE A DECISION. SO WHY DOESN'T THIS JUST BLEED OVER SO THAT WE'RE DOING ABSOLUTE IMMUNITY FOR ALL GOVERNMENT ACTIVITIES? >> I THINK THAT THAT WOULD GO TOO FAR BECAUSE THERE IS, YOU'RE RIGHT, MOST ACTIVITIES EVEN IN THE LAW ENFORCEMENT CONTEXT ARE OPERATIONAL IN NATURE. WHEN YOU MAKE THE DECISION TO PULL SOMEONE OVER, YOU CAN DECIDE NOT TO, OR YOU CAN DECIDE TO PULL THEM OVER. THAT IS DISCRETIONARY. >> AND HOW YOU DO IT. >> ONCE YOU DO IT, YOU HAVE TO DO IT WITH REASONABLE CARE. >> WHAT ABOUT, AND THEN THERE'S THE HIGH-SPEED CHASE SITUATION WHICH I THINK WE'VE ALLOWED THOSE CASES TO GO FORWARD, AND I GUESS THAT TO ME WHAT -- RIGHT NOW THERE'S NO VOLUME BECAUSE THERE'S, ROE WAS PRETTY CLEAR. BUT ONCE YOU SAY, WELL, IF IT'S AN EMERGENCY OR IF IT'S SORT OF THIS, MAYBE THERE'S A MIXTURE. MAYBE MR. GONZALEZ SAID THERE WAS BAD POLICE, YOU KNOW, POLICY, AND ALSO THERE'S OPERATIONAL LEVEL. AND NOW WE'VE GOT THAT MIX THING. AND, I MEAN, I WOULD THINK THAT IF WE'RE TALKING ABOUT SOMETHING WHEN THERE'S CLEARLY NO FACTUAL DISPUTES, BUT IT WAS, AGAIN, HOW MANY POLICE SHOULD HAVE BEEN SENT OUT BY THE, YOU KNOW, THE DISPATCHERS, YOU KNOW? IT WAS ONLY ONE. THERE SHOULD HAVE BEEN TWO, BUT THERE'S NO POLICY ABOUT THAT, AND THEY SAY, OH, THERE USED TO BE, BUT THERE WAS A CUTBACK.

20 THOSE FACTS. YOU HAVE THEN THOSE ARE CLEARLY PLANNING LEVEL, CORRECT? >> YES. >> OKAY. THIS JUST DOESN'T SEEM, AND, YOU KNOW, I WANT TO GO BACK TO SEE WHAT WE SAID PINELLAS IN THE SAME, THE EMERGENCY EXCEPTION MAY COME FROM ANOTHER DEFERENCE THAT'S DIFFERENT FROM THE OTHER KINDS OF PLANNING LEVELS. DO YOU AGREE WITH THAT? >> IT IS, IT CERTAINLY DOESN'T FIT EASILY -- >> THAT'S WHERE -- >> -- PLANNING LEVEL, I HAVE TO CONCEDE THAT. BUT WHAT THIS COURT HAS DONE WITH THOSE TWO CASES IS SAY THAT BECAUSE WE ARE SO CONCERNED THAT POLICE RESPONSE TO EMERGENCIES ONLY WITHOUT FEAR THAT THEIR CONDUCT WILL BE THE SUBJECT OF A TRIAL BE IT THEIR OWN PERSONAL LIABILITY AT THE END OF THE DAY OR THEIR EMPLOYER. BECAUSE THEY WANT THEM TO ACT WITHOUT FEAR IN 13 SECONDS, REALLY IN 2 SECONDS -- >> BUT YOU'RE SAYING THEY COULD HAVE A 1983 ACTION. >> I SAID THEY COULD BRING ONE. THEY WOULD HAVE TO HAVE QUALIFIED IMMUNITY FOR THAT. THIS IS NOT THE KIND OF CLAIM -- THIS IS THE ONLY ONE AT ISSUE IN THIS CASE, SO I DON'T WANT IT TO SEEM, WELL, THERE WOULD BE NO POTENTIAL CLAIM THEY COULD STATE. I THINK THEY COULD STATE A CLAIM UNDER FEDERAL LAW AND PERHAPS -- >> UNDER THE EMERGENCY EXCEPTION, THERE ARE LIMITATIONS TO THAT BECAUSE EVEN UNDER THAT THEY COULD NOT ACT FLAGRANTLY DANGEROUSLY. >> ABSOLUTELY. AS YOU SAID, IN CITY -- >> IT'S NOT A, IT'S NOT AN UNLIMITED EXCEPTION. >> AND I WANT TO GET -- ABSOLUTELY, YOUR HONOR. >> YOU ALSO, THEN, WOULD TURN BACK TO OVERRULE WALLACE BECAUSE IN THAT CASE DOWN IN OCALA HAD

21 THE SHERIFF NOT GONE OUT, PROBABLY IMMUNITY. >> IT'S TRUE. >> BUT ONCE YOU BECOME INVOLVED IN A SITUATION, IT CHANGES. SO THAT'S, I MEAN, IT COULD VERY EASILY HAVE SAID WE'RE FACING AN INDIVIDUAL WHO'S IN A COMA. AND WITHIN A MATTER OF SECONDS, YOU'RE SUPPOSED TO DETERMINE THAT WHOLE POLICY, AND THAT'S WHERE I'M HAVING CONCERN WITH THIS, THAT THE EXCEPTION SWALLOWS THE WAIVER OF IMMUNITY IS WHAT WE GET INTO. >> I THINK THE CONSISTENT PRINCIPLE, UM, BETWEEN LIKE A CASE WITH THE UNDERTAKER DOCTRINE LIKE IN WALLACE OR POLLACK WHERE THE DISPATCH CALLED FHP, FHP SAID WE'LL BE THERE IN A MINUTE, AND NO ONE CAME, THAT'S A DUTY ANALYSIS. BUT I THINK THAT THE COMMON PRINCIPLE IS CONTROL. I THINK THE FACT THAT WHEN YOU'RE DEALING WITH A 13-SECOND EMERGENCY OR AN 80-SECOND EMERGENCY IN A HOME, YOU KNOW, WHERE THERE'S GASOLINE EVERYWHERE OR A HIJACKING SITUATION AND THE POLICE OFFICERS HAVE NO ABILITY TO WRAP THEIR HANDS AROUND THE SITUATION AND IMPLEMENT WHATEVER POLICY APPLIES, THEY HAVE TO BE GIVEN SOME DISCRETION TO ACT WITHIN THE MEANS OF WHAT THEY'VE BEEN TRAINED TO DO. WHICH BRINGS ME TO A POINT I'D REALLY LIKE TO MAKE. THIS AFFIDAVIT THAT WAS INTRODUCED BY THE PLAINTIFF BELOW IS AN AFFIDAVIT OF AN OFFICER FROM CITY OF MIAMI. AND YOU ASKED THE QUESTION, HAD WE -- HAD THIS OFFICER VIOLATED MIAMI-DADE POLICIES? WELL, THAT'S NOT AT ALL IN THE RECORD. THERE'S NO MIAMI-DADE POLICY IN THE RECORD THAT WAS VIOLATED OR NOT VIOLATED, SO THAT'S A LITTLE BIT, I THINK, OF A RED HERRING AS FAR AS THE ISSUE IS CONCERNED. >> THE AFFIDAVIT DID NOT MAKE

22 REFERENCE TO THE POLICIES? >> I DON'T BELIEVE SO. I THINK IT TALKED -- >> OKAY. >> I DON'T WANT TO QUOTE ME, BUT I THINK IT TALKS MORE GENERALLY ABOUT WHAT YOU'RE SUPPOSED TO DO IN THESE SITUATIONS. BUT IT'S AN IRRELEVANT POINT ANYWAY BECAUSE, IF ANYTHING, THAT MIGHT GO TO A DUTY ANALYSIS IF A DUTY WERE TO ATTACH -- NOW, THE DUTY QUESTION ISN'T BEFORE YOU BECAUSE YOU VERY CLEARLY IN WALLACE SAID THERE'S NO CERT REVIEW FOR A QUESTION OF DUTY. IF THIS CASE DOES GO FORWARD, IT'S SOMETHING WE WOULD REVISIT AT THE END OF THE CASE WHICH WE'RE ENTITLED TO DO. BUT LET'S JUST ASSUME FOR A SECOND THAT THE DUTY DID ATTACH. WHETHER OR NOT WE COME COMPLIED WITH OUR POLICIES, THAT'S THE ONLY PLACE IT REALLY HAS ANY RELEVANCE, WHETHER OR NOT THE DUTY WAS BREACHED WITH COMPLIANCE THROUGH OUR POLICIES OR NOT. BUT I WOULD ARGUE FROM KAISNER THE, I KNOW, JUSTICE PARIENTE, YOU SAID DICTA, BUT IT TALKS ABOUT CONFRONTING AN EMERGENCY, NOT -- WE'RE NOT ARGUING THAT AN EMERGENCY WAS, WHAT WE'RE SAYING THAT OUR OFFICER DID NOT CREATE AN EMERGENCY. HE CAME TO AN EMERGENCY THAT HAD LONG -- NOT LONG, A FEW SECONDS -- HAD BEEN ONGOING -- >> BUT I THOUGHT WHAT HE'S SAYING IS THE EMERGENCY THAT WE'VE TALKED ABOUT IS WHERE YOU ARE, YOU THINK YOU'RE COMING TO SOMETHING WHERE SAY IF HE WAS TOLD THERE ARE HOSTAGES IN THERE, AN EMERGENCY FOR THE PURPOSE, I MEAN, MY GOODNESS, IN ALL THESE AREAS THE NUMBER OF BURGLARIES THAT OCCUR EVERY DAY AND, YOU KNOW, GOD FORBID WE START TO HAVE INNOCENT PEOPLE BEING KILLED. IT'S NOT THE SAME, BURGLARY IS NOT A ROBBERY. SO WE ARE, HE'S SAYING, WASN'T CALLED IN AS A EMERGENCY UNDER

23 MIAMI, THE POLICE DEPARTMENT. IT WAS A BURGLAR ALARM. SOMETIMES THERE ARE FALSE ALARMS, RIGHT? THEY COME OUT TO YOUR HOUSE, AND THERE ARE FALSE ALARMS. THE POLICE COME WITH THEIR WEAPONS DRAWN, AND THEN YOU'RE GONE THAT -- >> THAT'S EXACTLY MY POINT. THIS MIGHT HAVE BEEN AN ALARM POINT, BUT WHEN THEY GOT TO THE CORNER, THE TWO OFFICERS SAW SOMEONE PHYSICALLY IN THE BUILDING, THEY SAW A CAR DOWN THE ROAD WITH TWO -- WHO ENDED UP BEING AFFILIATED WITH BURGLARY AND SERVED TIME WITH IT, AND THE PLAINTIFF WITH HIS GUN. >> DID THEY GET THE BURGLARS, BY THE WAY? >> THEY GOT THE BURGLARS. IT WAS PRETTY EASY, THEY WERE RIGHT THERE. [LAUGHTER] BUT YOU'RE ABSOLUTELY RIGHT. I'M NOT HERE ON A CASE WHERE YOU'RE JUST RESPONDING TO, YOUR RIGHT, MAYBE THERE IS A DIFFERENT WAY. THAT'S NOT AN EMERGENCY NECESSARILY. I'M HERE ON A CASE WHERE MY OFFICER SHOWS UP ON A CORNER, AND HE SEES WITHIN THREE SECONDS FOUR POTENTIAL SUSPECTS, AND WITHIN NINE SECONDS HE'S FACING THE BARREL OF A GUN. THAT'S MY CASE. IF THAT'S NOT AN EMERGENCY AND THAT WAS THE RHETORICAL QUESTION IN THE THIRD'S OPINION, FOR GOD'S SAKE, WHAT IS AN EMERGENCY? THIS IS EXACTLY WHY WE GIVE DISCRETION. THAT'S WHERE THE SEPARATION OF POWERS COMES IN. THE JUDICIARY HAS TO GIVE THE EXECUTIVE IN THESE KINDS OF ENGAGEMENTS THE ABILITY TO ACT WITHOUT FAIRNESS. FOR THOSE REASONS I WOULD ASK THAT THIS COURT AFFIRM THE DISTRICT IN ITS ENTIRETY. THANK YOU.

24 >> THANK YOU VERY MUCH. THE AFFIDAVIT OF MANNING ROUGHLY RECORD 319, PARAGRAPH 15 FOLLOWS THE POLICY FOLLOWED BY MIAMI-DADE POLICE DEPARTMENT, AND IT EVEN QUOTES IT. AND IT INCLUDES WHAT THE STANDARDS ARE AND ALSO STATES THAT ALL REASONABLE ALTERNATIVES SHOULD BE EXHAUSTED FOR BEING INAPPROPRIATE UNDER THE CIRCUMSTANCES BEFORE DEADLY FORCE IS USED. THAT MEANS ALL REASONABLE ALTERNATIVES WHICH INCLUDE THE NUMBER OF ALTERNATIVES THAT I OUTLINED PRIOR LOOKING FOR, CREATING A PERIMETER, ASKING FOR BACKUP, OBSERVING, LOOKING FOR A SAFE PLACE, SHOUTING OUT THE COMMAND "POLICE, DROP THE GUN." NONE OF THESE WERE FOLLOWED BY THE POLICE OFFICER -- >> IF UNDER THAT POLICY, IF AN OFFICER IS CONFRONTED WITH A PERSON WHO POINTS A GUN AT THEM, DOES THE OFFICER BEFORE SHOOTING HAVE TO TELL THEM TO DROP THE GUN? >> NO. NOT UNDER THAT CIRCUMSTANCE, BUT THAT'S NOT WHAT WE HAVE HERE. >> YEAH, BUT I THINK THAT IS WHAT WE HAVE. I UNDERSTAND YOU DON'T THINK THE OFFICER SHOULD HAVE BEEN GONE UP THERE, BUT ONCE HE GOT UP THERE, THE PLAINTIFF TURNED AROUND, AND IT CERTAINLY APPEARS OBVIOUS THAT HE'S POINTING THE GUN AT THE OFFICER. >> CORRECT. THE POLICE OFFICER SHOULD NEVER HAVE DONE THAT. IT VIOLATED EVERY RULE, EVERY DISCRETIONARY RULE THAT WAS CREATED, HE OPERATIONALLY VIOLATED IT. HAD HE NOT VIOLATED HIS OWN RULES, HE WOULD NOT HAVE THRUST HIMSELF INTO A DANGEROUS SITUATION WHERE HE COULD HAVE HURT HIMSELF, AND IN THIS CASE SHOT THE INNOCENT OWNER OF THE SHOP. THAT'S WHY WE'RE HERE, PRECISELY FOR THAT REASON.

25 HE NEEDS TO FOLLOW AND OPERATE THE RULES. THE DECISION, THE POLICY CAN BE SET HOW YOU OPERATE IN IT, THAT IS NOT PROTECTED UNDER SOVEREIGN IMMUNITY. AND TO ANSWER JUSTICE PARIENTE ON PINELLAS V. BROWN, THIS COURT SAID THE FOLLOWING: THIS DOES NOT MEAN THAT STATE AGENTS CAN ESCAPE LIABILITY IF THEY THEMSELVES HAVE CREATED OR SUBSTANTIALLY CREATED TO THE EMERGENCY THROUGH THEIR OWN NEGLIGENT ACTS OR FAILURE TO ADHERE TO REASONABLE STANDARDS OF PUBLIC SAFETY. TO FALL WITHIN THE KAISER EXCEPTION, IT MUST BE THRUST UPON THE POLICE BY LAWBREAKERS OR OTHER EXTERNAL FORCES THAT REQUIRE THEM TO CHOOSE BETWEEN DIFFERENT RISKS POSED TO THE PUBLIC. IN OTHER WORDS, NO MATTER WHAT THE DECISION POLICE OFFICERS MAKE, SOMEONE OR SOME GROUP WILL BE PUT AT RISK, AND OFFICERS THUS ARE LEFT NO OPTION BUT TO CHOOSE BETWEEN TWO DIFFERENT EVILS. HERE HE HAD NUMEROUS CHOICES THAT DID NOT INCLUDE EVIL; FOLLOWING PROPER PROCEDURE. IT WASN'T A SITUATION WHERE MR. RODRIGUEZ WAS HELD HOSTAGE WITH A GUN INSIDE, AND HE'S ABOUT TO BE SHOT, AND THE POLICE SAYS I'M GOING TO HAVE TO SHOOT, I MIGHT SHOOT MR. RODRIGUEZ. HE CREATED THE OPPORTUNITY, AND FOR THOSE REASONS AND REASONS PREVIOUSLY STATED, WE REQUEST THAT THE THIRD DISTRICT BE REVERSED, AND THIS COURT ENTER THE APPROPRIATE ORDER. >> THANK YOU FOR YOUR ARGUMENTS. COURT IS ADJOURNED. >> ALL RISE.