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D'Agastino v. City of Miami

Supreme Court of Florida

June 22, 2017

FREDDY D'AGASTINO, et al., Petitioners,
THE CITY OF MIAMI, et al., Respondents.


         Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Third District - Case No. 3D10-2704 (Miami-Dade County)

          Robert C. Buschel and Eugene G. Gibbons of Buschel Gibbons, P.A., Fort Lauderdale, Florida; and Ronald J. Cohen of Rice Pugatch Robinson Storfer & Cohen PLLC, Fort Lauderdale, Florida, for Petitioners

          Victoria Méndez, City Attorney, and John A. Greco, Deputy City Attorney, Miami, Florida, for Respondent City of Miami

          Edward G. Guedes, John J. Quick, and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, Florida, for Respondent City of Miami Civilian Investigative Panel

          G. "Hal" Johnson, General Counsel, Florida Police Benevolent Association, Inc., Tallahassee, Florida; and Robert D. Klausner, Adam P. Levinson, and Paul A. Daragjati of Klausner Kaufman Jensen & Levinson, Plantation, Florida, for Amicus Curiae Florida Police Benevolent Association, Inc.

          Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking, P.L., Coral Gables, Florida, for Amicus Curiae Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO

          Nancy G. Abudu of American Civil Liberties Union Foundation of Florida, Miami, Florida; and Jeanne Baker of Jeanne Baker Attorney at Law, PA, Miami, Florida, for Amici Curiae American Civil Liberties Union of Florida, Greater Miami Chapter of American Civil Liberties Union of Florida, Miami-Dade Branch of the National Association for the Advancement of Colored People, and National Association of Civilian Oversight of Law Enforcement

          LEWIS, J.

         The many and multiple complexities and conflicts generated in today's society have produced numerous difficulties inherent in the delivery of police work and services. The City of Miami, along with other governmental units, have responded to some of those difficulties inherent in modern police work by creating citizen review and investigative panels. The present case has been generated by the creation of and powers given to a group known as the City of Miami Civilian Investigative Panel (CIP), which is 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. Today we consider a challenge to some of the CIP's authority, in which Lieutenant Freddy D'Agastino and the Fraternal Order of Police seek review of the decision of the Third District Court of Appeal in D'Agastino v. City of Miami, 189 So.3d 236 (Fla. 3d DCA 2016), on the basis that it expressly and directly conflicts with a decision of the Fifth District Court of Appeal in Demings v. Orange County Citizens Review Board, 15 So.3d 604 (Fla. 5th DCA 2009), on a question of law. The policy or wisdom of such investigative panels is not before us. Specifically, the only question before us involves the operative effect of the Police Officers' Bill of Rights (PBR), codified in sections 112.531-.535, Florida Statutes (2008), and whether those state statutes have any preemptive force with regard to the activities of other review panels. Due to the conflict of decisions, we have jurisdiction. See art. V, § 3(b)(3), Fla. Const.


         On March 5, 2009, a complaint was filed with the CIP against Lt. D'Agastino for alleged misconduct that had occurred the day before during a traffic stop. The City of Miami Police Department's Internal Affairs Division (Internal Affairs) subsequently fully investigated the matter, interviewing under oath the complainant, Lt. D'Agastino, and two other officers who were present during the traffic stop. On April 8, 2009, Internal Affairs 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." Specifically, the Internal Affairs report indicated that there were no independent witnesses to corroborate either conflicting account of the incident that emerged from the sworn interviews conducted by Internal Affairs.

         On April 17, 2009, nine days after the letter indicating Internal Affairs had completed its investigation, the CIP issued a subpoena to Lt. D'Agastino ordering him to appear before the CIP to testify. However, on May 22, 2009, Lt. D'Agastino filed an action in the circuit court of the Eleventh Judicial Circuit alleging that the CIP as an investigative authority conflicts with a component of the PBR, section 112.533(1), Florida Statutes. As a result, Lt. D'Agastino requested that the subpoena issued by the CIP be quashed and a protective order entered. Separately, the Fraternal Order of Police had filed a declaratory action also alleging that the CIP was in conflict with section 112.533(1), Florida Statutes. The two cases were consolidated and the trial court ultimately ruled in favor of the City of Miami and the CIP on cross-motions for summary judgment. Lt. D'Agastino then appealed the trial court's decision to the Third District Court of Appeal. The Third District affirmed, entertained a motion for rehearing for three years, but ultimately issued a substituted opinion once again affirming the trial court's order. The Third District's decision was by a vote of two to one. Before we delve into the details of the legal reasoning at issue, however, it is helpful to understand the state law and municipal ordinances that are at issue and under consideration here.

         The Police Officers' Bill of Rights

         We begin with the Police Officers' Bill of Rights, codified in Part VI of Chapter 112 of the Florida Statutes. Most relevant here, section 112.533 is titled "Receipt and processing of complaints, " and provides in pertinent part:

(1)(a) 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 such agency from any person, which shall be 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, notwithstanding any other law or ordinance to the contrary. When law enforcement or correctional agency personnel assigned the responsibility of investigating the complaint prepare an investigative report or summary, regardless of form, the person preparing the report shall, at the time the report is completed:
1. Verify pursuant to s. 92.525 that the contents of the report are true and accurate based upon the person's personal knowledge, information, and belief.
2. Include the following statement, sworn and subscribed to pursuant to s. 92.525:
"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."
The requirements of subparagraphs 1. and 2. shall be completed prior to the determination as to whether to proceed with disciplinary action or to file disciplinary charges. This subsection does not preclude the Criminal Justice Standards and Training Commission from exercising its authority under chapter 943.
(b)1. 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.
2. For purposes of this paragraph, the term "political subdivision" means a separate agency or unit of local government created or established by law or ordinance and the officers thereof and includes, but is not limited to, an authority, board, branch, bureau, city, commission, consolidated government, county, department, district, institution, metropolitan government, municipality, office, officer, public corporation, town, or village.

§ 112.533(1), Fla. Stat. (2008) (emphasis added).[1]

         Immediately preceding is section 112.532, titled "Law enforcement officers' and correctional officers' rights." Section 112.532 introduces several rights afforded to law enforcement officers[2] with the following language, "All law enforcement officers . . . employed by or appointed to a law enforcement agency . . . shall have the following rights and privileges." § 112.532(1), Fla. Stat. Those rights and privileges are enumerated in six subsections and many subparagraphs.

         The first set of rights and privileges are those "Rights of Law Enforcement Officers and Correctional Officers While Under Investigation, " enumerated in subsection 112.532(1):

Whenever a law enforcement officer or correctional officer is under investigation and subject to interrogation by members of his or her agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions:
(a) The interrogation shall be conducted at a reasonable hour, preferably at a time when the law enforcement officer or correctional officer is on duty, unless the seriousness of the investigation is of such a degree that immediate action is required.
(b) The interrogation shall take place either at the office of the command of the investigating officer or at the office of the local precinct, police unit, or correctional unit in which the incident allegedly occurred, as designated by the investigating officer or agency.
(c) The law enforcement officer or correctional officer under investigation shall be informed of the rank, name, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by or through one interrogator during any one investigative interrogation, unless specifically waived by the officer under investigation.
(d) The law enforcement officer or correctional officer under investigation shall be informed of the nature of the investigation prior to any interrogation, and he or she shall be informed of the names of all complainants. All identifiable witnesses shall be interviewed, whenever possible, prior to the beginning of the investigative interview of the accused officer. The complaint and all witness statements shall be provided to the officer who is the subject of the complaint prior to the beginning of any investigative interview of that officer. An officer, after being informed of the right to review witness statements, may voluntarily waive the provisions of this paragraph and provide a voluntary statement at any time.
(e) Interrogating sessions shall be for reasonable periods and shall be timed to allow for such personal necessities and rest periods as are reasonably necessary.
(f) The law enforcement officer or correctional officer under interrogation shall not be subjected to offensive language or be threatened with transfer, dismissal, or disciplinary action. No promise or reward shall be made as an inducement to answer any questions.
(g) The formal interrogation of a law enforcement officer or correctional officer, including all recess periods, shall be recorded on audio tape, or otherwise preserved in such a manner as to allow a transcript to be prepared, and there shall be no unrecorded questions or statements. Upon the request of the interrogated officer, a copy of any such recording of the interrogation session must be made available to the interrogated officer no later than 72 hours, excluding holidays and weekends, following said interrogation.
(h) If the law enforcement officer or correctional officer under interrogation is under arrest, or is likely to be placed under arrest as a result of the interrogation, he or she shall be completely informed of all his or her rights prior to the commencement of the interrogation.
(i) At the request of any law enforcement officer or correctional officer under investigation, he or she shall have the right to be represented by counsel or any other representative of his or her choice, who shall be present at all times during such interrogation whenever the interrogation relates to the officer's continued fitness for law enforcement or correctional service.
(j) Notwithstanding the rights and privileges provided by this part, this part does not limit the right of an agency to discipline or to pursue criminal charges against an officer.

§ 112.532(1)(a)-(j), Fla. Stat.

         Section 112.532, subsection (6), titled "Limitations Periods for Disciplinary Actions, " provides an elaborate limitations and tolling framework that prohibits "disciplinary action, demotion, or dismissal" if the "investigation is . . . not completed within 180 days after the date the agency receives notice of the allegation." § 112.532(6), Fla. Stat. The subsection enumerates five exceptions that toll the 180-day limitations period.[3] Further, subsection 112.532(6)(b) provides that an investigation may nevertheless be reopened if:

1. Significant new evidence has been discovered that is likely to affect the outcome of the investigation.
2. The evidence could not have reasonably been discovered in the normal course of investigation or the evidence resulted from the predisciplinary response of the officer.

§ 112.532(6)(b)1.-2., Fla. Stat. However, "[a]ny disciplinary action resulting from an investigation that is reopened pursuant to this paragraph must be completed within 90 days after the date the investigation is reopened." § 112.532(6)(b), Fla. Stat.[4]

         Relevant City of Miami Charter and Code Provisions

         The CIP's history began with Section 51 of the Miami Charter which authorized the city commission to create a CIP "to act as independent citizens' oversight of the sworn police department." Miami, Fla., Charter § 51 (2012). In relevant part, the CIP is authorized to "(1) conduct independent investigations of police misconduct, " and "(3) make recommendations to the city manager and/or directly to the ...

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