Fall 2017
Stay the Course: Florida’s Marchman Act and Baker Act Remain in Full Force and Effect By: J. David Marsey, Rumberger, Kirk and Caldwell
The Florida Police Chief’s Association’s summer conference is a wonderful opportunity to socialize with old friends and meet new ones while at the same time staying abreast of the most current legal issues facing the law enforcement pro- fession. In furtherance of these professional goals, the Association frequently obtains speakers from other jurisdic- tions, whose state law and whose federal Circuit Courts of Appeals may have different interpretations of law. These may be wholly unrelated and inapplicable to Florida law enforcement. While we welcome these out-of-state guests, we should remain vigilant that we rely on Florida Statutes, Florida courts’ interpretations of Florida law, the Eleventh Circuit Court of Appeals and the United States Supreme Court’s interpretations of federal law. Some legal authority, which may be applicable in other jurisdictions, may not be applicable here.
In addition to the location of legal authority, the type of authority must be considered. For example, the court may overturn an order granting a motion to dismiss, not on the evidence, but merely on the words articulated by the attor- ney in the complaint. A ruling on a motion to dismiss considers only the allegations not the facts or evidence. Similar- ly, a case overturning summary judgment entered in favor of an officer or department may be a result of a single, dis- puted material fact. Dispositive motions like motions for summary judgment rely on the complete absence of disputed material facts, and if there are any, the motion must be denied, regardless of the law at issue. Although these types of cases may be instructive – and may even be binding – the mere fact that the appellate court reverses a successful trial court order does not signal doom for the defendant. There is an abundance of procedural reasons for the reversal of orders dismissing claims or entering judgment on behalf of defendants, without consideration of the merits.
Florida law provides for the temporary civil commitment in the absence of any criminal conduct under limited circum- stances. It is well-settled Florida law – that has been recognized by Florida federal District Courts – that officers may detain and take custody of citizens when the totality of facts and circumstances support their “arrest” pursuant to a civil commitment statute. Florida’s Marchman Act provides Florida’s officers authority to detain someone who has lost the power of self-control with respect to substance abuse and is in need of assistance. See §397.677, 397.675 and 397.6772, Florida Statutes. Similarly, Florida’s Baker Act provides Florida’s officers authority to detain someone who has a mental illness and is in need of assistance. §394.463, Florida Statutes. Here, these provisions are generally sum- marized; however Florida’s law enforcement officers are very familiar with the statutory requirements for detention under these civil commitment statutes. Nothing in federal law prevents the use of these civil statutes to detain and to take into custody people who meet their criteria. Nothing in federal law prevents the use of objectively reasonable force against those taken into custody under one of these civil commitment statutes. In fact, nothing in federal law prevents the entry of summary judgment in cases where there is no materially disputed fact and where the law compels dismissal. By way of example only, in Monday v. Oullette, a federal Court of Appeals affirmed summary judg- ment on a use of force claim involving the application of pepper spray on a non-violent subject of a mental health in- voluntary commitment. As in any criminal arrest where an officer deprives one of personal freedom or where force is used, the detention of and use of force against those suffering from mental health or substance issues may expose the officer and agency to liability. The level of, or even the absence of, a criminal violation is but one of the factors used to determine the objec- tive reasonableness of a use of force application. Officers are not prohibited from using force against civil commitment subjects, however, their impaired status should be a factor considered under the totality of circumstances analysis nec- essary to determine if the level of force used is the minimum necessary force to achieve the lawful objective.
Law enforcement executives should always consult legal counsel licensed to practice law in Florida prior to imple- menting changes in policies, procedures, training or operational guidelines. General, non-specific summaries of case law should never drive agency operations. Florida’s Chiefs are encouraged to use the member’s hotline for specific legal issues and should always consult their city attorneys prior to implementing or changing policies involving high lia- bility areas.
J. David Marsey is a former police officer, investigator and prosecutor and is a partner at the law firm of Rumberger, Kirk & Caldwell in Tallahas- see, Florida. He defends and advises corporations, government entities and their employees on casualty, employment and constitutional issues throughout the state. For more information, please visit
www.rumberger.com.
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