Senate Bill 0166c1

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    Florida Senate - 1999                            CS for SB 166

    By the Committee on Criminal Justice and Senators Brown-Waite,
    Bronson, McKay, Horne, Grant, Carlton, Cowin, Klein,
    Kirkpatrick, Latvala, Sullivan, Forman, Casas, Campbell, Lee
    and Silver


    307-1125A-99

  1                      A bill to be entitled

  2         An act relating to operations of law

  3         enforcement agencies; providing definitions;

  4         providing that it is a third-degree felony to

  5         contact or communicate with any person who is

  6         directly involved in a tactical operation of a

  7         law enforcement agency during the course of the

  8         operation; providing that it is a third-degree

  9         felony to authorize a broadcast or telecast of

10         any recording or depiction of a tactical

11         operation of a law enforcement agency during

12         the course of the operation; authorizing

13         contact or communication with a person involved

14         in such tactical operation and broadcast or

15         telecast of such tactical operation upon the

16         approval of the head of the law enforcement

17         agency having jurisdiction over such tactical

18         operation; requiring that a law enforcement

19         agency inform the public of the conclusion of

20         such tactical operation; encouraging the

21         development of a protocol; providing that the

22         absence of a protocol does not create a defense

23         to prosecution; providing that the act does not

24         affect the prosecution of any violation of law;

25         providing an effective date.

26

27         WHEREAS, the Legislature finds that, on May 19, 1998,

28  following a multicounty spree of violence that left two police

29  detectives and a state trooper dead, Hank Earl Carr, the

30  perpetrator of these crimes, barricaded himself in a

31  convenience store and took the store clerk hostage, and

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    Florida Senate - 1999                            CS for SB 166
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  1         WHEREAS, the Legislature finds that, during the ensuing

  2  4-hour standoff with Carr, law enforcement officers attempted

  3  to negotiate with Carr but were unable to contact him because

  4  radio station personnel had telephoned the convenience store

  5  and were airing a live, 6-minute interview with the suspect,

  6  and a newspaper reporter also contacted Carr by telephone

  7  after hearing the radio interview, and

  8         WHEREAS, the Legislature finds that, in addition to the

  9  actions by news media personnel which interfered with attempts

10  by law enforcement officers to negotiate with Carr,

11  helicopters from local television stations circled the scene

12  of the hostage-taking incident and broadcast live coverage

13  that identified the positions of law enforcement officers

14  involved in the tactical operation in response to the

15  incident, and

16         WHEREAS, the Legislature finds that, in contacting Hank

17  Earl Carr and in providing "live" coverage of law enforcement

18  officers directly involved in the tactical operation in

19  response to the Carr incident, during the course of such

20  tactical operation, certain members of the news media

21  seriously interfered with a hostage negotiation and endangered

22  the lives of law enforcement officers and the life of the

23  hostage taken by Carr by impeding immediate communications

24  between law enforcement officers and Carr, and by potentially

25  alerting Carr to the positions of the law enforcement officers

26  engaged in obtaining the release of the store clerk taken

27  hostage by Carr, and

28         WHEREAS, the Legislature finds that legislative action

29  is needed to address this type of interference, and that

30  legislative action should not be delayed until this type of

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    Florida Senate - 1999                            CS for SB 166
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  1  interference results in the injury or death of a law

  2  enforcement officer or a civilian, and

  3         WHEREAS, the Legislature finds that such tactical

  4  operations are initiated very quickly and judicial proceedings

  5  to determine whether access should be granted to persons

  6  directly involved in, or directly affected by, such tactical

  7  operations, or to determine whether "live" coverage of such

  8  tactical operations should be granted, prior to such tactical

  9  operations being initiated, are impractical, if not

10  impossible, given these circumstances, and

11         WHEREAS, while the Legislature recognizes that there

12  have been recent, laudable efforts by some media organizations

13  to enter into agreements with local law enforcement agencies

14  on the reporting of such potentially life-endangering

15  incidents so as to avoid any future occurrence of this type of

16  interference, the Legislature finds that such agreements rely

17  on self-policing, do not subject violators of those agreements

18  to punitive sanctions, bind only those media organizations

19  that are parties to the agreement, are always subject to being

20  nullified at some future date, and do not have statewide

21  application, and

22         WHEREAS, given the inadequacies of such agreements, the

23  Legislature finds that the most appropriate means to limit

24  this type of interference is to attach criminal liability to

25  this type of interference, and, consistent with its findings,

26  the Legislature intends to attach criminal liability to this

27  type of interference, and

28         WHEREAS, while the Legislature recognizes that each

29  citizen's right to a free press and free speech must be

30  protected, those rights are not absolute, and the Legislature

31  finds that the state has a legitimate, significant, and

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    Florida Senate - 1999                            CS for SB 166
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  1  compelling interest in safeguarding the physical safety of law

  2  enforcement officers and others, which must be balanced with

  3  each citizen's right to free speech and a free press, if those

  4  rights are implicated by punishing this type of interference,

  5  and

  6         WHEREAS, the Legislature does not believe that "access

  7  upon demand" to a member of a special weapons or tactical

  8  operation team that is responding to a kidnapping or hostage

  9  situation, or to a kidnaper, hostage-taker, or person who has

10  been kidnapped or taken or held hostage, is constitutionally

11  protected free speech or that such access is news-gathering or

12  reporting that is protected by the constitutional guarantee of

13  a free press, and

14         WHEREAS, the Legislature does not believe that "live"

15  coverage of tactical operations involving a special weapons or

16  tactical team deployed for the purpose of obtaining the

17  release of a person kidnapped or taken or held hostage is

18  constitutionally protected free speech or that such coverage

19  is news-gathering or reporting that is protected by the

20  constitutional guarantee of a free press, and

21         WHEREAS, the action the Legislature intends to take

22  does not constitute an absolute prohibition on access to any

23  person or an absolute prohibition on the gathering or

24  dissemination of any information, but rather only implicates

25  the timing of access to certain persons and the dissemination

26  of certain information as is necessary to ensure the physical

27  safety of law enforcement officers and civilians, NOW,

28  THEREFORE,

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30  Be It Enacted by the Legislature of the State of Florida:

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    Florida Senate - 1999                            CS for SB 166
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  1         Section 1.  Unauthorized communications prohibited

  2  during the course of tactical operations.--

  3         (1)  As used in this section, the term:

  4         (a)  "Special weapons or tactical operations team or

  5  detail" means any type of specialized team or detail of a law

  6  enforcement agency, regardless of how such team or detail may

  7  be described or designated, which is responsible for

  8  responding to, and which uses specialized training,

  9  techniques, tactics, and equipment to respond to, any:

10         1.  Sensitive or potentially life-threatening

11  situation; or

12         2.  Special tactical situation that, by its nature,

13  would be considered excessively dangerous or complex, or that

14  is beyond the capability of a routine patrol force or out of

15  the scope of normal patrol or investigative functions.

16         (b)  "Hostage or crisis negotiator" means any person

17  used by a law enforcement agency for the purpose of

18  negotiating for the release of any person who has been

19  kidnapped or taken or held hostage.

20         (c)  "Any person directly involved in or directly

21  affected by a tactical operation" means:

22         1.  Any member of a special weapons or tactical

23  operations team or detail, or any hostage negotiator or crisis

24  negotiator, who is deploying or deployed in response to a

25  situation involving a kidnapping or the taking or holding of a

26  hostage;

27         2.  The perpetrator of a kidnapping or the taking or

28  holding of the hostage; or

29         3.  The person kidnapped or taken or held hostage.

30         (d)  "Tactical operation" means any operation involving

31  a special weapons or tactical operations team or detail, or

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    Florida Senate - 1999                            CS for SB 166
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  1  any operation involving a hostage negotiator or crisis

  2  negotiator, in which such team, detail, or negotiator deploys,

  3  or is deployed, in response to a situation that involves a

  4  kidnapping or the taking or holding of a hostage.

  5         (e)  "During the course of such tactical operation"

  6  means from the time a tactical operation is commenced by a

  7  special weapons or tactical operations team or detail, or a

  8  hostage negotiator or crisis negotiator, deploying or being

  9  deployed until the time at which the law enforcement agency

10  having jurisdiction over such tactical operation expressly

11  informs the public that such tactical operation has concluded.

12         (f)  "Law enforcement agency" means an agency of the

13  state, a political subdivision of the state, or the United

14  States if the primary responsibility of the agency is the

15  prevention and detection of crime or the enforcement of the

16  penal, traffic, or highway laws of this state and if its

17  agents and officers are empowered by law to conduct criminal

18  investigations and make arrests.

19         (2)  Except as provided in subsection (4), any person

20  who:

21         (a)  Contacts or communicates with any person directly

22  involved in or directly affected by a tactical operation

23  during the course of such tactical operation; and

24         (b)  Knew or should have known that such person was

25  directly involved in or directly affected by such tactical

26  operation,

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28  commits a felony of the third degree, punishable as provided

29  in s. 775.082, s. 775.083, or s. 775.084.

30         (3)  Except as provided in subsection (5), any person

31  who:

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    Florida Senate - 1999                            CS for SB 166
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  1         (a)  Authorizes a broadcast or telecast to the public

  2  of any type of audio or video transmission that records or

  3  depicts a tactical operation during the course of such

  4  tactical operation; and

  5         (b)  Knew or should have known that the activities

  6  broadcast or telecast to the public by any type of video or

  7  audio transmission recorded or depicted such tactical

  8  operation,

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10  commits a felony of the third degree, punishable as provided

11  in s. 775.082, s. 775.083, or s. 775.084.

12         (4)  Notwithstanding subsection (2), a person may

13  contact or communicate with any person directly involved in or

14  directly affected by a tactical operation during the course of

15  such tactical operation, if such contact or communication is

16  approved by the head of the law enforcement agency having

17  jurisdiction over such tactical operation, or by his or her

18  designee.

19         (5)  Notwithstanding subsection (3), a person may

20  authorize a broadcast or telecast to the public of any type of

21  audio or video transmission that depicts a tactical operation

22  during the course of such tactical operation if such broadcast

23  or telecast is approved by the head of the law enforcement

24  agency having jurisdiction over such tactical operation, or by

25  his or her designee.

26         (6)  A law enforcement agency having jurisdiction over

27  a tactical operation shall expressly inform the public when

28  such tactical operation is concluded as soon as is reasonably

29  possible. The Legislature encourages each law enforcement

30  agency to develop and maintain a protocol for responding to

31  any member of the public or any member of the media who

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    Florida Senate - 1999                            CS for SB 166
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  1  requests information regarding a tactical operation. However,

  2  this section does not require a law enforcement agency to

  3  develop such protocol and does not require a law enforcement

  4  agency to disclose confidential or privileged information

  5  regarding such tactical operation. The absence of such

  6  protocol is not a defense to prosecution for a violation of

  7  this section.

  8         (7)  This section does not affect the prosecution of

  9  any person for a violation of section 843.01 or section

10  843.02, Florida Statutes, or for any other violation of law.

11         Section 2.  This act shall take effect July 1, 1999.

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    Florida Senate - 1999                            CS for SB 166
    307-1125A-99




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 166

  3

  4  -    Provides that it is a third degree felony if a person
         contacts or communicates with a person directly involved
  5       in or directly affected by a tactical operation during
         the course of that tactical operation, and the person
  6       knew or should have known that the person contacted was
         directly involved in or directly affected by the tactical
  7       operation.

  8  -    Provides that it is a third degree felony if a person
         authorizes a "live" broadcast or telecast of such
  9       tactical operation, and the person making such
         authorization knew or should have known that the activity
10       broadcasted or telecasted "live" was such tactical
         operation.
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    -    Defines the terms: "tactical operation," "special weapons
12       or tactical operations team or detail," "hostage or
         crisis negotiator," "during the course of such tactical
13       operation," "any person directly involved in or directly
         affected by a tactical operation," and "law enforcement
14       agency."

15  -    Requires that the law enforcement agency having
         jurisdiction over such tactical operation inform the
16       public when such operation is concluded.

17  -    Encourages, but does not require, all law enforcement
         agencies to develop a protocol for dissemination of
18       information relating to such tactical operation.

19  -    Provides that the absence of such protocol is not a
         defense to prosecution.
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    -    Provides that the new section does not affect a
21       prosecution for resisting arrest (with or without
         violence) or a prosecution for any other violation of
22       state law.

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