Preview
Filing # 176552778 E-Filed 06/30/2023 02:20:45 PM
IN THE CIRCUIT COURT
OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
ARACELIS DEJESUS,
Plaintiff,
vs. Case No.: 2017-CA-2703
MARCOS LOPEZ, SHERIFF OF
OSCEOLA COUNTY IN HIS
OFFICIAL CAPACITY,
Defendant.
/
DEFENDANT SHERIFF’S SUPPLEMENTAL AUTHORITY IN SUPPORT
OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT IN
ACCORDANCE WITH PRIOR MOTION FOR DIRECTED VERDICT,
OR IN THE ALTERNATIVE FOR A NEW TRIAL
Defendant Sheriff Marcos Lopez, by and through undersigned counsel, hereby
provides the Court with supplemental authority for the proposition that other state
courts have universally refused to recognize the tort of “negligent investigation” in
the context of both search warrants and arrest.
Idaho
“Plaintiffs have cited to us no cases from Idaho or any other jurisdiction
recognizing the tort of negligent investigation of a crime. Our own research has
uncovered no states that have held that a cause of action for negligent investigation
exists. Therefore, we accept the statement in Dirienzo v. United States, 690 F.Supp.
1149 (D.Conn.1988), that the common law did not impose liability upon even a
private person for mere negligence in instituting or continuing a criminal prosecution
for a crime which has actually occurred. 690 F.Supp. at 1154.
“On the other hand, recovery for negligence in investigating or prosecuting a
crime has been specifically denied in a number of jurisdictions. See Dever v. Fowler,
63 Wash.App. 35, 816 P.2d 1237, 1242 (1991), citing Smith v. State, 324 N.W.2d
299, 302 (Iowa 1982); Drake v. State, 126 Misc.2d 309, 482 N.Y.S.2d 208, 210
(N.Y.Ct.Cl.1984); Gisondi v. Harrison, 120 A.D.2d 48, 507 N.Y.S.2d 419, 423
(N.Y.App.Div.1986); Boose v. Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 744
(N.Y.App.Div.1979). See also Johnson v. City of Pacifica, 4 Cal.App.3d 82, 84
Cal.Rptr. 246, 249 (1970), cited in Smith v. State, supra; Montgomery Ward Co. v.
Pherson, 129 Colo. 502, 272 P.2d 643 (1954); Wilson v. O’Neal, 118 So.2d 101, 105
(Fla.App.1960), cert. denied, 365 U.S. 850, 81 S.Ct. 813, 5 L.Ed.2d 814 (1961);
Bromund v. Holt, 24 Wis.2d 336, 129 N.W.2d 149, 153–54 (1964). We agree with
the policy that to hold investigators liable for their negligent acts would impair
vigorous prosecution and have a chilling effect on law enforcement. Dever v.
Fowler, supra at 1242. See also Thompson v. City of Capitola, 233 Cal.App.3d 465,
284 Cal.Rptr. 548 (1991), review granted in part, transferred, 286 Cal.Rptr. 780,
818 P.2d 63 (Cal.1991). We conclude that the summary judgment dismissing
2
Wimer’s and Hodge’s claim of negligent investigation was proper and entitled the
state to judgment as a matter of law.” Wimer v. State, 841 P.2d 453, 455 (Idaho Ct.
App. 1992).
New York
”It is well settled that an action for negligent arrest and investigation does not
exist in the State of New York.” Ferreira v. City of Binghamton, 975 F.3d 255, 275–
76 (2d Cir. 2020), certified question accepted, 35 N.Y.3d 1105, 157 N.E.3d 673
(2020), and certified question answered, 38 N.Y.3d 298, 194 N.E.3d 239 (2022).
Alaska
“The arresting officer owed John no duty of care to proceed without error
when he initiated legal action against Evan. Because the arresting officer owed John
no duty of care, no duty was breached, and no negligence claim can be maintained….
This conclusion is in accordance with numerous cases from other jurisdictions which
have declined to recognize the duty to conduct criminal investigations in a non-
negligent manner and have therefore refused to recognize a tort of negligent
investigation of a crime.” Waskey v. Municipality of Anchorage, 909 P.2d 342, 344–
45 (Alaska 1996).
3
California
“California law does not recognize a cause of action for false arrest/false
imprisonment predicated on a negligent investigation in pursuit of a search warrant.”
Garcia v. United States, SACV091169DOCRNBX, 2011 WL 13224877, at *4 (C.D.
Cal. Sept. 19, 2011).
“[T]he Hamiltons argue Officer Martinez’s decision to “book” them and
remand them to the custody of the sheriff required a reasonable investigation of the
crime on Martinez’s part. We disagree…. Where, as here, probable cause to arrest
had been established we are not aware of any authority which suggests police
officers must conduct some additional investigation before incarcerating a
suspect…. [A] lack of diligence, while unfortunate in light of the eventual outcome
of events, is not affirmative misconduct which gives rise to liability.” Hamilton v.
City of San Diego, 266 Cal. Rptr. 215, 218 (Ct. App. 1990), modified (Oct. 30, 1990).
Virginia
“Plaintiffs’ gross negligence claim with respect to the arrest of Ms. Safar must
also be dismissed because Officer Rodriguez did not owe Ms. Safar a duty to
withdraw the warrant for her arrest…. This is so because Virginia does not recognize
a cause of action for the negligent investigation or incorrect initiation of criminal
process. Boyce v. Bennett, No. 2:14cv249, 2015 WL 6873547, at *8 (E.D.Va. Nov.
4
9, 2015) (dismissing a plaintiffs claim that a police officer was “grossly negligent”
in an investigation because under Virginia law, there was “no viable state-law ‘gross
negligence’ cause of action against a city police officer for negligent investigation
and/or negligent production of investigative materials”).” Safar v. Tingle, 178 F.
Supp. 3d 338, 352 (E.D. Va. 2016), aff’d in part, rev’d in part and remanded, 859
F.3d 241 (4th Cir. 2017).
Kentucky
“Although Kentucky law is seemingly silent on the specific issue presented
herein, other jurisdictions have uniformly refused to recognize a tort of negligent
investigation. See Turner v. Taylor, No. 7:09–cv–02858–JMC, 2011 WL 3794086,
at *9 (D.S.C. Aug. 25, 2011) (holding that officers owe a duty to the public to detect
and investigate crime, but owe no duty to individuals for negligent investigation);
Fernander v. Bonis, 947 So.2d 584, 590 (Fl.Dist.Ct.App.2007) (“[Plaintiff] has
failed to establish that the police owed him a duty to conduct the polygraph
examination of Butler in a non-negligent manner.”)… Because these cases appear to
be consistent with Kentucky’s general approach that police officers do not owe a
duty of care to individuals, the Court finds each of these cases persuasive. As such,
Defendant did not owe Plaintiff a duty to reasonably investigate J.S.’s sexual abuse
allegations; therefore, Plaintiff’s negligent investigation claim is dismissed.” Wesley
5
v. Rigney, 913 F. Supp. 2d 313, 332 (E.D. Ky. 2012), rev’d and remanded sub nom.
Wesley v. Campbell, 779 F.3d 421 (6th Cir. 2015) (repetitive internal citations
omitted).
New Hampshire
“We note that courts that have considered whether to recognize a common
law tort of negligent investigation by law enforcement officers have held that no
such tort exists…. [P]olice officers’ interest in conducting criminal investigations
without fear of liability for negligence, which exists even in non-expedited cases,
weighs heavily against the significant interests of criminal suspects…. We conclude
that immunizing police officers from “extended liability” is an interest that
outweighs Lahm’s claimed interest in requiring a “reasonable investigation beyond
just finding probable cause” prior to arrest. Pesaturo, 161 N.H. at 555, 20 A.3d 284.
Therefore, we decline to recognize the duty Lahm seeks to impose. Because
Farrington owed no duty to Lahm, he cannot be found liable for negligence on these
facts.” Lahm v. Farrington, 166 N.H. 146, 150, 90 A.3d 620, 623–24 (2014).
Iowa
“In view of the well fixed rule that, for persuasive public policy reasons, law
enforcement officers have no liability for mere negligence in the investigation of
6
crime, we do not believe the legislature, in enacting the Iowa Tort Claims Act,
intended to create a new and hitherto unrecognized tort.” Smith v. State, 324 N.W.2d
299, 302 (Iowa 1982).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 30th day of June 2023, the foregoing is
being filed via Florida ePortal which also send notice via electronic mail to the
following: Thomas DeLattre, Esq. and William J. Wieland, Esq.,
tom@wdjustice.com, billy@wdjustice.com and tammy@wdjustice.com, Wieland &
DeLattre, P.A., 226 Hillcrest Street, Orlando, Florida 32802 and Jacob V. Stuart,
Esq., jvs@jacobstuartlaw.com, 1601 East Amelia Street, Orlando, Florida 32803.
s/ Thomas W. Poulton
THOMAS W. POULTON, ESQ.
Florida Bar No.: 0083798
poulton@debevoisepoulton.com
MATT A. KOZYRA, ESQ.
Florida Bar No.: 0093425
kozyra@debevoisepoulton.com
DeBEVOISE & POULTON, P.A.
Lakeview Office Park, Suite 1010
1035 S. Semoran Boulevard
Winter Park, Florida 32792
Telephone: 407-673-5000
Facsimile: 321-203-4304
Attorneys for Defendant Sheriff
7
Preview
Filing # 176552778 E-Filed 06/30/2023 02:20:45 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA ARACELIS DEJESUS, Plaintiff, vs. Case No.: 2017-CA-2703 MARCOS LOPEZ, SHERIFF OF OSCEOLA COUNTY IN HIS OFFICIAL CAPACITY, Defendant. / DEFENDANT SHERIFF’S SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT IN ACCORDANCE WITH PRIOR MOTION FOR DIRECTED VERDICT, OR IN THE ALTERNATIVE FOR A NEW TRIAL Defendant Sheriff Marcos Lopez, by and through undersigned counsel, hereby provides the Court with supplemental authority for the proposition that other state courts have universally refused to recognize the tort of “negligent investigation” in the context of both search warrants and arrest. Idaho “Plaintiffs have cited to us no cases from Idaho or any other jurisdiction recognizing the tort of negligent investigation of a crime. Our own research has uncovered no states that have held that a cause of action for negligent investigation exists. Therefore, we accept the statement in Dirienzo v. United States, 690 F.Supp. 1149 (D.Conn.1988), that the common law did not impose liability upon even a private person for mere negligence in instituting or continuing a criminal prosecution for a crime which has actually occurred. 690 F.Supp. at 1154. “On the other hand, recovery for negligence in investigating or prosecuting a crime has been specifically denied in a number of jurisdictions. See Dever v. Fowler, 63 Wash.App. 35, 816 P.2d 1237, 1242 (1991), citing Smith v. State, 324 N.W.2d 299, 302 (Iowa 1982); Drake v. State, 126 Misc.2d 309, 482 N.Y.S.2d 208, 210 (N.Y.Ct.Cl.1984); Gisondi v. Harrison, 120 A.D.2d 48, 507 N.Y.S.2d 419, 423 (N.Y.App.Div.1986); Boose v. Rochester, 71 A.D.2d 59, 421 N.Y.S.2d 740, 744 (N.Y.App.Div.1979). See also Johnson v. City of Pacifica, 4 Cal.App.3d 82, 84 Cal.Rptr. 246, 249 (1970), cited in Smith v. State, supra; Montgomery Ward Co. v. Pherson, 129 Colo. 502, 272 P.2d 643 (1954); Wilson v. O’Neal, 118 So.2d 101, 105 (Fla.App.1960), cert. denied, 365 U.S. 850, 81 S.Ct. 813, 5 L.Ed.2d 814 (1961); Bromund v. Holt, 24 Wis.2d 336, 129 N.W.2d 149, 153–54 (1964). We agree with the policy that to hold investigators liable for their negligent acts would impair vigorous prosecution and have a chilling effect on law enforcement. Dever v. Fowler, supra at 1242. See also Thompson v. City of Capitola, 233 Cal.App.3d 465, 284 Cal.Rptr. 548 (1991), review granted in part, transferred, 286 Cal.Rptr. 780, 818 P.2d 63 (Cal.1991). We conclude that the summary judgment dismissing 2 Wimer’s and Hodge’s claim of negligent investigation was proper and entitled the state to judgment as a matter of law.” Wimer v. State, 841 P.2d 453, 455 (Idaho Ct. App. 1992). New York ”It is well settled that an action for negligent arrest and investigation does not exist in the State of New York.” Ferreira v. City of Binghamton, 975 F.3d 255, 275– 76 (2d Cir. 2020), certified question accepted, 35 N.Y.3d 1105, 157 N.E.3d 673 (2020), and certified question answered, 38 N.Y.3d 298, 194 N.E.3d 239 (2022). Alaska “The arresting officer owed John no duty of care to proceed without error when he initiated legal action against Evan. Because the arresting officer owed John no duty of care, no duty was breached, and no negligence claim can be maintained…. This conclusion is in accordance with numerous cases from other jurisdictions which have declined to recognize the duty to conduct criminal investigations in a non- negligent manner and have therefore refused to recognize a tort of negligent investigation of a crime.” Waskey v. Municipality of Anchorage, 909 P.2d 342, 344– 45 (Alaska 1996). 3 California “California law does not recognize a cause of action for false arrest/false imprisonment predicated on a negligent investigation in pursuit of a search warrant.” Garcia v. United States, SACV091169DOCRNBX, 2011 WL 13224877, at *4 (C.D. Cal. Sept. 19, 2011). “[T]he Hamiltons argue Officer Martinez’s decision to “book” them and remand them to the custody of the sheriff required a reasonable investigation of the crime on Martinez’s part. We disagree…. Where, as here, probable cause to arrest had been established we are not aware of any authority which suggests police officers must conduct some additional investigation before incarcerating a suspect…. [A] lack of diligence, while unfortunate in light of the eventual outcome of events, is not affirmative misconduct which gives rise to liability.” Hamilton v. City of San Diego, 266 Cal. Rptr. 215, 218 (Ct. App. 1990), modified (Oct. 30, 1990). Virginia “Plaintiffs’ gross negligence claim with respect to the arrest of Ms. Safar must also be dismissed because Officer Rodriguez did not owe Ms. Safar a duty to withdraw the warrant for her arrest…. This is so because Virginia does not recognize a cause of action for the negligent investigation or incorrect initiation of criminal process. Boyce v. Bennett, No. 2:14cv249, 2015 WL 6873547, at *8 (E.D.Va. Nov. 4 9, 2015) (dismissing a plaintiffs claim that a police officer was “grossly negligent” in an investigation because under Virginia law, there was “no viable state-law ‘gross negligence’ cause of action against a city police officer for negligent investigation and/or negligent production of investigative materials”).” Safar v. Tingle, 178 F. Supp. 3d 338, 352 (E.D. Va. 2016), aff’d in part, rev’d in part and remanded, 859 F.3d 241 (4th Cir. 2017). Kentucky “Although Kentucky law is seemingly silent on the specific issue presented herein, other jurisdictions have uniformly refused to recognize a tort of negligent investigation. See Turner v. Taylor, No. 7:09–cv–02858–JMC, 2011 WL 3794086, at *9 (D.S.C. Aug. 25, 2011) (holding that officers owe a duty to the public to detect and investigate crime, but owe no duty to individuals for negligent investigation); Fernander v. Bonis, 947 So.2d 584, 590 (Fl.Dist.Ct.App.2007) (“[Plaintiff] has failed to establish that the police owed him a duty to conduct the polygraph examination of Butler in a non-negligent manner.”)… Because these cases appear to be consistent with Kentucky’s general approach that police officers do not owe a duty of care to individuals, the Court finds each of these cases persuasive. As such, Defendant did not owe Plaintiff a duty to reasonably investigate J.S.’s sexual abuse allegations; therefore, Plaintiff’s negligent investigation claim is dismissed.” Wesley 5 v. Rigney, 913 F. Supp. 2d 313, 332 (E.D. Ky. 2012), rev’d and remanded sub nom. Wesley v. Campbell, 779 F.3d 421 (6th Cir. 2015) (repetitive internal citations omitted). New Hampshire “We note that courts that have considered whether to recognize a common law tort of negligent investigation by law enforcement officers have held that no such tort exists…. [P]olice officers’ interest in conducting criminal investigations without fear of liability for negligence, which exists even in non-expedited cases, weighs heavily against the significant interests of criminal suspects…. We conclude that immunizing police officers from “extended liability” is an interest that outweighs Lahm’s claimed interest in requiring a “reasonable investigation beyond just finding probable cause” prior to arrest. Pesaturo, 161 N.H. at 555, 20 A.3d 284. Therefore, we decline to recognize the duty Lahm seeks to impose. Because Farrington owed no duty to Lahm, he cannot be found liable for negligence on these facts.” Lahm v. Farrington, 166 N.H. 146, 150, 90 A.3d 620, 623–24 (2014). Iowa “In view of the well fixed rule that, for persuasive public policy reasons, law enforcement officers have no liability for mere negligence in the investigation of 6 crime, we do not believe the legislature, in enacting the Iowa Tort Claims Act, intended to create a new and hitherto unrecognized tort.” Smith v. State, 324 N.W.2d 299, 302 (Iowa 1982). CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 30th day of June 2023, the foregoing is being filed via Florida ePortal which also send notice via electronic mail to the following: Thomas DeLattre, Esq. and William J. Wieland, Esq., tom@wdjustice.com, billy@wdjustice.com and tammy@wdjustice.com, Wieland & DeLattre, P.A., 226 Hillcrest Street, Orlando, Florida 32802 and Jacob V. Stuart, Esq., jvs@jacobstuartlaw.com, 1601 East Amelia Street, Orlando, Florida 32803. s/ Thomas W. Poulton THOMAS W. POULTON, ESQ. Florida Bar No.: 0083798 poulton@debevoisepoulton.com MATT A. KOZYRA, ESQ. Florida Bar No.: 0093425 kozyra@debevoisepoulton.com DeBEVOISE & POULTON, P.A. Lakeview Office Park, Suite 1010 1035 S. Semoran Boulevard Winter Park, Florida 32792 Telephone: 407-673-5000 Facsimile: 321-203-4304 Attorneys for Defendant Sheriff 7