Miami Business Owner Shot by Police

In the middle of the night, Miami business owner Jose Lazaro Rodriguez got a call from his security company that the burglar alarm at his store had gone off. They informed him that the police had been notified and were on their way. Mr. Rodriguez grabbed his licensed handgun and headed to his business.

He arrived at his store a few moments ahead of Miami-Dade Police Officer Hernandez, and noticed a person attempting to crawl through a hole in the glass of the front door.  As Mr. Rodriguez was getting out of his truck, Officer Hernandez rushed upon the scene and unloaded four bullets into Mr. Rodriguez’s back. A video surveillance camera at the business recorded portions of the event but did not capture the actual shooting.

Police wrongfully shoots business owner.

Police wrongfully shoots business owner.

Mr. Rodriguez filed a personal injury negligence complaint against Miami-Dade County, based upon the wrongful shooting and retention and supervision of Officer Hernandez.  Mr. Rodriguez claimed he exited his truck, gun in hand, with the sole intent of detaining the intruder until the police arrived.  He added that Officer Hernandez never identified himself as the police or yelled “Freeze” before the shooting.

Mr. Rodriguez hired an expert, a retired lieutenant from the City of Miami Police Department, to review the case; the expert found that Officer Hernandez himself created the dangerous situation by rushing upon Mr. Rodriguez without his partner, thereby placing himself in a position where he might have needed to use deadly force.

The County moved for summary judgment, which would dismiss this case before it ever got to a jury, arguing that the County is protected from suits on the basis of sovereign immunity and the police emergency exception.

SOVEREIGN IMMUNITY LAW IN FLORIDA

As a personal injury lawyer Miami, FL, I often write and complain bitterly about sovereign immunity cases in Florida because they provide governmental agencies like the police, hospitals, schools, and even the Department of Children and Family Services with enormous insulation from being held accountable for hurting and killing people.

Sovereign immunity is an ancient legal concept that we inherited from English Common Law, and it is supposed to protect the financial wellbeing of the general population by preventing large payouts or verdicts to individuals who have been harmed by the government or its employees.  Sovereign immunity often becomes a license to kill, and the case of Mr. Rodriguez against the Miami-Dade Police illustrates that it can put us all at great risk when the police, school teachers, or other public servants can act without concern about the potential consequences of their actions.

For more than 20 years and as a personal injury lawyer Miami, FL, I have sued virtually every City, County, and State agency in Florida, including Jackson Memorial Hospital, the City of Miami, and the Florida Department of Transportation. Currently I am suing the Florida Department of Corrections on behalf of a prisoner I believe was the victim of medical malpractice while in its custody.

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THREE IMPORTANT THINGS TO KNOW ABOUT SUING A FLORIDA COUNTY, CITY, OR THE STATE ITSELF

  1.  Shorter Statute of Limitations
  2.  Cap on Damages ($200,000 including attorney’s fees and court costs)
  3.  Cap on attorney’s fee at 25%

Certain exceptions to the $200,000 damage cap apply in civil rights cases, as well as in other types of claims against governmental agencies that bar all lawsuits when the cause of action is based upon what is considered to be a discretionary decision as opposed to an operational decision.  Discretionary acts are those involving the “exercise of executive or legislative power,” while an operational act is one that is “not necessary to or inherent in policy or planning and merely reflects a secondary decision as to how those policies or plans will be implemented.”

In Mr. Rodriguez’s case, I believe as a Miami injury lawyer, the trial court was clearly troubled by not being able to see the actual shooting on the videotape and refused to dismiss the negligence claim against the County, but agreed to dismiss the claim against the County for negligent retention of Officer Hernandez.

FLORIDA’S POLICE EMERGENCY EXCEPTION DEFENSE

The third defense presented was the “police emergency exception,” which is designed to protect the police from mistakes made in emergencies—life-and-death decisions—a finding which in this case was difficult for the trial judge to determine without the benefit of the video.

An appeal followed to Florida’s Third District Court of Appeal, claiming that if the remaining count of negligence were permitted to proceed to trial, “irreparable harm” would occur to the County, for which an immediate appeal called a “writ of certiorari” was required; once again the courts found a way to deny an injury victim justice by depriving him of his day in court. The Third District Court dismissed the entire case based upon the police emergency exception.  To prove that the exception pertains, one must show that . . .

  1.  A serious emergency existed.
  2.  The emergency was “thrust upon” the police by others.
  3. The officer had to make a “split-second” decision.

FLORIDA’S THIRD DISTRICT COURT OF APPEAL DISMISSES CASE

It is important to note that both the trial court and the Third District Court of Appeal were making this decision based upon the two-dimensional pages of lawyers’ carefully drafted affidavits of expert witnesses.  These facts were not being analyzed by a jury who has the benefit of listening to the live testimony of witnesses and cross examination.  Instead, this procedure is meant to intercept a case before a jury gets to hear what really happened from those who were actually there.

For some reason, just as in many of the cases as a Miami injury lawyer, I have reported about recently, the Third District Court once again dismissed the entire case.

FLORIDA’S SUPREME COURT DECISION

Fortunately, Florida’s Supreme Court accepted the case, reversing both the trial court and the Third District Court of Appeal for the following reasons:

  1.   No urgent appeal was needed, as going to trial on the negligent issue was not going to “irreparably harm” the County, and . . 
  2.   The “police emergency exception” cannot be used by state agencies to escape liability when they themselves have created the emergency through their own negligent acts or failure to adhere to reasonable standards of public safety.

There is much to be learned from this case as it involves controversial issues of gun ownership, police conduct, and public safety; however, as a personal injury lawyer Miami, Fl,  what I find to be most telling is the increasingly difficult road those injured in Florida are forced to travel to be able to present a personal injury case to a jury.  Had the Florida Supreme Court not intervened here and reversed the Third, this case would probably be quietly stored in a file room in the bowels of the courthouse. Instead, it can be used to set the community standard for fairly holding the police and other governmental agencies accountable for any harm they cause when they fail to serve and protect us.

Our law firm is passionate about providing assistance to those have been involved in a personal injury accident in Florida.  If you have a question regarding a potential claim, please Email me, Spencer Aronfeld, Miami injury lawyer, or call our Miami law firm at 305-441-0440 or Toll Free at 1-866-597-4529 for a free initial consultation regarding your legal rights. We proudly represent people across Florida in car accidents, slip and fall accidents, and claims against the State.

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