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Brown v. Miami-Dade County1/28/2003
On Motion for Rehearing En Banc
The motion for rehearing en banc is denied.
SCHWARTZ, C.J., and JORGENSON, GERSTEN, GREEN, FLETCHER, and SHEVIN, JJ., concur.
COPE, J. (dissenting from denial of rehearing en banc).
It appears to me that the panel opinion is contrary to part II of Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So. 2d 912, 919-20 (Fla. 1985); Garcia v. Reyes, 697 So. 2d 549 (Fla. 4th DCA 1997); and Seguine v. City of Miami, 627 So. 2d 14 (Fla. 3d DCA 1993). Under Trianon, when and how to make an arrest is an immune function, lest legitimate law enforcement functions be chilled for fear of civil liability.
I.
The police department conducted a prostitution sting operation at a Howard Johnson Motel . The plaintiff was a guest. While returning to his room he came around a corner. A police officer yelled "Freeze," and pointed a gun at the plaintiff. The plaintiff lost his balance, fell down, and suffered an injury.
The plaintiff sued the County for negligence. The trial court dismissed the complaint on the theory that either the County owed no duty to the plaintiff, or alternatively, that the police activity was an immune discretionary function for purposes of sovereign immunity.
The panel has reversed. Respectfully, the immunity doctrine is applicable here, and this court should affirm the dismissal.
As best I understand the plaintiff's position, it is that conducting a prostitution sting in a hotel creates a known dangerous condition on the premises and that the police had to issue some sort of general warning before conducting the sting. See Opinion at 4.
If I am reading this correctly, the plaintiff is saying that while doing a sting operation the police must set up some sort of perimeter around the hotel , presumably with barricades and yellow crime scene tape, before conducting the sting operation.
The essence of a sting operation, of course, is that it be kept secret from the target of the sting. The determination how to conduct the sting is pivotal to its success. The idea that there should be warnings posted, flyers distributed, barricades erected, and the like would defeat the police ability to conduct sting operations at all.
Ironically, the police officer in this case did warn the plaintiff to stay away from where the undercover operation was going on. What the plaintiff is really complaining about is not that there was a failure to warn--he was warned--but that the police officer startled him by yelling " Freeze."
II.
The Florida Supreme Court in Trianon Park said:
How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials. . . . 468 So. 2d at 919 (emphasis added).
The Fourth District has addressed sting operations in Garcia v. Reyes, 697 So. 2d 549 (Fla. 4th DCA 1997). Mr. Garcia had been the subject of a reverse sting operation in which it was found he had been entrapped. Garcia v. State, 582 So. 2d 88 (Fla. 4th DCA 1991). He sued for damages because he had been in prison for thirty months before being freed. 697 So. 2d at 549-50.
Relying on Trianon, the Fourth District ruled that there was no
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