HB 0451 2004
1	A bill to be entitled
2	An act relating to actions against law enforcement
3	officers, correctional officers, and correctional
4	probation officers; providing a popular name; amending s.
5	111.065, F.S.; expanding the application of provisions
6	relating to the payment of costs and attorney's fees in
7	certain civil and criminal actions to include correctional
8	officers and correctional probation officers; revising a
9	definition to conform; revising circumstances under which
10	the employing agency of such officers has the option of
11	paying legal costs and attorney's fees in an action
12	arising out of the officers' official duties; requiring
13	the employing agency of such officers to pay legal costs
14	and attorney's fees under certain circumstances involving
15	an emergency, imminent death or bodily harm, or the
16	pursuit, apprehension, or attempted apprehension of
17	certain offenders; providing for jurisdiction relating to
18	legal costs and attorney's fees; providing certain
19	limitations of the amount awarded; amending s. 633.175,
20	F.S.; revising a cross reference to conform; providing an
21	effective date.
22
23	Be It Enacted by the Legislature of the State of Florida:
24
25	Section 1. This act shall be known by the popular name the
26	"Law Enforcement Fair Defense Act."
27	Section 2. Section 111.065, Florida Statutes, is amended
28	to read:
29	111.065 Law enforcement officers, correctional officers,
30	and correctional probation officers;civil or criminal action
31	against; employer payment of costs and attorney's fees.--
32	(1) For the purpose of this section only act, the term
33	"officer" means any law enforcement officer, correctional
34	officer, or correctional probation officer as defined in s.
35	943.10(1), (2), or (3) who is "law enforcement officer" means
36	any personemployed full time by any municipality or the state
37	or any political subdivision thereof or any deputy sheriff whose
38	primary responsibility is the prevention and detection of crime
39	or the enforcement of the penal, traffic, or highway laws of
40	this state.
41	(2) The employing agency of any law enforcement officer
42	has shall have the option to pay the legal costs andreasonable
43	attorney's fees and costs for any law enforcementofficer in any
44	civil or criminal action commenced against such law enforcement
45	officer in any court when the action arose out of the
46	performance of the officer's official duties and:
47	(a) The plaintiff requests dismissal of the suit; or
48	(b) The Such law enforcementofficer is found to be not
49	liable or not guilty.
50	(3) Notwithstanding subsection (2), the officer may
51	request and, if requested, the employing agency shall provide an
52	attorney and pay the reasonable attorney's fees and costs for
53	any officer in a criminal prosecution commenced against the
54	officer in any court if the employing agency determines that the
55	officer's actions that gave rise to the prosecution:
56	(a)1. Occurred in response to what the officer reasonably
57	believed was an emergency;
58	2. Occurred when the officer reasonably believed that his
59	or her action was necessary to protect the officer or others
60	from imminent death or bodily harm; or
61	3. Occurred in the course of the officer's fresh pursuit,
62	apprehension, or attempted apprehension of a suspect who the
63	officer reasonably believed had perpetrated, or attempted to
64	perpetrate, a forcible felony as defined in s. 776.08 or the
65	offense of escape;
66	(b) Arose within the course and scope of the officer's
67	duties; and
68	(c) Were not acts of omission or commission which
69	constituted a material departure from the employing agency's
70	written policies and procedures, or generally recognized
71	criminal justice standards if no written policies or procedures
72	exist.
73	(4)(a) If legal representation is requested under
74	subsection (3) and the employing agency determines that the
75	conditions set forth in subsection (3) have not been satisfied
76	or the officer does not choose to use the employing agency's
77	designated attorney, the officer may:
78	1. Select from a list of attorneys provided by the
79	employing agency; or
80	2. Choose his or her own attorney.
81
82	The officer may request the employing agency to reimburse
83	reasonable attorney's fees and costs if the officer's actions
84	giving rise to the prosecution did not result in the entry of a
85	plea of guilty or nolo contendere or in a finding of guilt by a
86	court or jury to any offense charged or any lesser or included
87	offense that is substantially related to any offense charged.
88	(b) If legal representation is provided in accordance with
89	paragraph (a), the amount of reasonable attorney's fees and
90	costs shall be determined as follows:
91	1. The officer shall submit an application for payment of
92	reasonable attorney's fees and costs to the employing agency no
93	later than 30 days after termination of the prosecution.
94	Thereafter, the employing agency and the officer must agree on
95	reasonable attorney's fees and costs to be paid within 30 days
96	after submitting the application for payment. The officer may
97	only apply for attorney's fees and costs incurred in the actual
98	defense of the prosecution of criminal charges, and the officer
99	is not entitled to seek or collect attorney's fees and costs
100	related to efforts to collect attorney's fees and costs under
101	this section.
102	2. The application for reasonable attorney's fees and
103	costs must include an itemization statement from an attorney or
104	expert witness representing or appearing on behalf of the
105	officer which states the actual time expended and the rate at
106	which fees and other expenses were computed.
107	3. If the officer and the employing agency do not reach an
108	agreement or if payment is not provided within the specified
109	time, the officer requesting payment of attorney's fees and
110	costs may submit the application to the court having
111	jurisdiction over the criminal action within 30 days after the
112	termination of the prosecution, failure to reach an agreement,
113	or failure to pay the fees or costs, whichever is later. The
114	court shall retain jurisdiction of the matter in order to
115	determine entitlement to payment and the amount of reasonable
116	attorney's fees and costs.
117	4. If the officer files an application for attorney's fees
118	and costs with the court, the employing agency shall have the
119	right to respond to the application. The court shall make its
120	determination as to entitlement and amount of reasonable
121	attorney's fees and costs based on:
122	a. Whether the officer's actions complied with the
123	requirements of paragraphs (3)(a), (b), and (c); and
124	b. Prevailing market rates in the appropriate market area
125	for defense of similar actions, as well as other relevant
126	factors.
127	(c) A lodestar or fee multiplier provision may not be used
128	in any criminal prosecution defended under this subsection and
129	the attorney's fees and costs awarded may not exceed $100,000.
130	Section 3. Subsection (1) of section 633.175, Florida
131	Statutes, is amended to read:
132	633.175 Investigation of fraudulent insurance claims and
133	crimes; immunity of insurance companies supplying information.--
134	(1) The State Fire Marshal or an agent appointed pursuant
135	to s. 633.02, any law enforcement officer as defined in s.
136	943.10(1) 111.065, any law enforcement officer of a federal
137	agency, or any fire department official who is engaged in the
138	investigation of a fire loss may request any insurance company
139	or its agent, adjuster, employee, or attorney, investigating a
140	claim under an insurance policy or contract with respect to a
141	fire to release any information whatsoever in the possession of
142	the insurance company or its agent, adjuster, employee, or
143	attorney relative to a loss from that fire. The insurance
144	company shall release the available information to and cooperate
145	with any official authorized to request such information
146	pursuant to this section. The information shall include, but
147	shall not be limited to:
148	(a) Any insurance policy relevant to a loss under
149	investigation and any application for such a policy.
150	(b) Any policy premium payment records.
151	(c) The records, reports, and all material pertaining to
152	any previous claims made by the insured with the reporting
153	company.
154	(d) Material relating to the investigation of the loss,
155	including statements of any person, proof of loss, and other
156	relevant evidence.
157	(e) Memoranda, notes, and correspondence relating to the
158	investigation of the loss in the possession of the insurance
159	company or its agents, adjusters, employees, or attorneys.
160	Section 4. This act shall take effect upon becoming a law.