Florida Senate - 2021 SB 670 By Senator Jones 35-00671-21 2021670__ 1 A bill to be entitled 2 An act relating to the deprivation of constitutional 3 rights; creating s. 760.52, F.S.; providing for a 4 civil action against an officer, employee, or agent 5 acting under color of law of this state or its 6 political subdivisions for the deprivation of rights 7 secured under the United States and State 8 Constitutions; providing that certain claims may not 9 be used as a defense against liability; providing an 10 affirmative defense to liability if certain conditions 11 are met; specifying circumstances under which an 12 officer, employee, or agent is immune from liability; 13 providing for the award of attorney fees and costs to 14 a prevailing plaintiff; prohibiting a plaintiff from 15 recovering additional damages if he or she has 16 recovered damages pursuant to a civil action brought 17 by the Attorney General; specifying applicability of 18 laws governing the defense of civil actions, and the 19 payment of judgments or settlements, against specified 20 officers, employees, and agents; amending ss. 111.07 21 and 111.071, F.S.; conforming provisions to changes 22 made by the act; providing an effective date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Section 760.52, Florida Statutes, is created to 27 read: 28 760.52 Civil action for deprivation of constitutional 29 rights.— 30 (1) Any officer, employee, or agent acting under color of 31 law of this state or any of its political subdivisions who 32 subjects, or causes to be subjected, any individual within the 33 jurisdiction thereof to the deprivation of any rights, 34 privileges, or immunities secured by the United States 35 Constitution or the State Constitution is liable to the party 36 injured for legal and equitable relief or any other proper 37 redress. An individual who claims to have suffered a deprivation 38 of any rights, privileges, or immunities secured by the United 39 States Constitution or the State Constitution may file an action 40 under this section in circuit court. 41 (2) Notwithstanding any other law, it is not a defense 42 against, nor grounds to establish immunity from liability for, 43 an action brought pursuant to this section that: 44 (a) The rights, privileges, or immunities secured by the 45 United States Constitution or the State Constitution were not 46 clearly established at the time that any such right, privilege, 47 or immunity was deprived by the officer, employee, or agent. 48 (b) The officer, employee, or agent was acting without bad 49 faith, malicious purpose, or wanton and willful disregard of 50 human rights, safety, or property, or believed that his or her 51 conduct was lawful at the time it was committed. 52 (3) It is an affirmative defense to liability under this 53 section if a jury determines that the officer, employee, or 54 agent was acting in good faith and believed his or her conduct 55 was lawful. 56 (4) An officer, employee, or agent is immune from liability 57 under this section if he or she can establish, by clear and 58 convincing evidence, that his or her actions did not constitute 59 a deprivation of constitutional rights as established or 60 construed by binding legal precedent. 61 (5) In any action successfully brought under this section, 62 the court shall award reasonable attorney fees and costs to the 63 prevailing plaintiff. In any action brought under this section 64 where injunctive relief is sought, the court shall deem the 65 plaintiff to have prevailed if the plaintiff’s action was a 66 substantial factor in obtaining the results sought by the 67 litigation. 68 (6) If a plaintiff has recovered damages through a civil 69 action brought by the Attorney General pursuant to s. 760.51, he 70 or she may not seek additional damages for the same violation of 71 constitutional rights under this section. 72 (7) Except as otherwise provided, the provisions of ss. 73 111.065-111.071 apply to any claim brought under this section. 74 Section 2. Section 111.07, Florida Statutes, is amended to 75 read: 76 111.07 Defense of civil actions against public officers, 77 employees, or agents.—Any agency of the state, or any county, 78 municipality, or political subdivision of the state, is 79 authorized to provide an attorney to defend any civil action 80 arising from a complaint for damages or injury suffered as a 81 result of any act or omission of action of any of its officers, 82 employees, or agents for an act or omission arising out of and 83 in the scope of his or her employment or function, unless, in 84 the case of a tort action, the officer, employee, or agent acted 85 in bad faith, with malicious purpose, or in a manner exhibiting 86 wanton and willful disregard of human rights, safety, or 87 property. Defense of such civil action includes, but is not 88 limited to, any civil rights lawsuit, including actions brought 89 pursuant to s. 760.52, seeking relief personally against the 90 officer, employee, or agent for an act or omission under color 91 of state law, custom, or usage, wherein it is alleged that such 92 officer, employee, or agent has deprived another person of 93 rights secured under the United States
FederalConstitution, 94 federal orlaws, or the State Constitution. Legal representation 95 of an officer, employee, or agent of a state agency may be 96 provided by the Department of Legal Affairs. However, any 97 attorney attorney’sfees paid from public funds for any officer, 98 employee, or agent who is found to be personally liable by 99 virtue of acting outside the scope of his or her employment, or 100 was acting in bad faith, with malicious purpose, or in a manner 101 exhibiting wanton and willful disregard of human rights, safety, 102 or property, may be recovered by the state, county, 103 municipality, or political subdivision in a civil action against 104 such officer, employee, or agent. If any agency of the state or 105 any county, municipality, or political subdivision of the state 106 is authorized pursuant to this section to provide an attorney to 107 defend a civil action arising from a complaint for damages or 108 injury suffered as a result of any act or omission of action of 109 any of its officers, employees, or agents and fails to provide 110 such attorney, such agency, county, municipality, or political 111 subdivision must shallreimburse any such defendant who prevails 112 in the action for court costs and reasonable attorney attorney’s113 fees. 114 Section 3. Subsection (1) of section 111.071, Florida 115 Statutes, is amended to read: 116 111.071 Payment of judgments or settlements against certain 117 public officers or employees.— 118 (1) Any county, municipality, political subdivision, or 119 agency of the state which has been excluded from participation 120 in the Insurance Risk Management Trust Fund is authorized to 121 expend available funds to pay: 122 (a) Any final judgment, including damages, costs, and 123 attorney attorney’sfees, arising from a complaint for damages 124 or injury suffered as a result of any act or omission of action 125 of any officer, employee, or agent in a civil or civil rights 126 lawsuit described in s. 111.07, including any action rising 127 under s. 760.52. If the civil action arises under s. 768.28 as a 128 tort claim, the limitations and provisions of s. 768.28 129 governing payment shall apply. If the action is a civil rights 130 action arising under 42 U.S.C. s. 1983, or similar federal 131 statutes, payments for the full amount of the judgment may be 132 made unless the officer, employee, or agent has been determined 133 in the final judgment to have caused the harm intentionally. 134 (b) Any compromise or settlement of any claim or litigation 135 as described in paragraph (a), subject to the limitations set 136 forth in that paragraph. 137 (c) Any reimbursement required under s. 111.07 for court 138 costs and reasonable attorney attorney’sfees when the county, 139 municipality, political subdivision, or agency of the state has 140 failed to provide an attorney and the defendant prevails. 141 Section 4. This act shall take effect October 1, 2021.