Officer-Involved Critical Incidents (OICIs)

Finalized reports of past officer involved critical incidents are available by public request.

 The State Attorney’s Role in Officer-Involved Critical Incidents (OICIs)

Melissa W. Nelson assumed the office of the State Attorney for the Fourth Judicial Circuit (the “Office”) on January 3, 2017.  Under the Florida Constitution, she is the chief state law enforcement official in the circuit, which covers Duval, Clay, and Nassau Counties. The State Attorney has no administrative authority or control over the personnel of the county sheriffs’ offices or other policing departments within the jurisdiction. But, the State Attorney is a state official and, therefore, does not answer to the municipal or county governments within the judicial circuit, including the county sheriffs and other policing departments. The authority and control of our municipal and county policing agencies reside with each municipal or county government.

Indeed, the American Bar Association’s Criminal Justice Standards specifically note, “The prosecutor generally serves the public and not any particular government agency, law enforcement officer or unit, witness or victim. When investigating or prosecuting a criminal matter, the prosecutor does not represent law enforcement personnel who have worked on the matter and such law enforcement personnel are not the prosecutor’s clients.” American Bar Association Criminal Justice Standards for the Prosecution Function, Std. 3-1.1 (4th Ed. 2017).

This Office strives to maintain that independence.

In fulfilling her mandate, the State Attorney employs investigators who are sworn law enforcement officers. The investigative capacity of the State Attorney’s Office, though, is limited. The primary function of the Office is the prosecution of criminal offenses within the circuit, and investigative resources within the Office primarily support that function.  The Office has no current ability to process crime scenes, conduct forensic analysis on evidence, and rarely, if ever, conducts primary investigations in homicide cases. For officer-involved critical incidents, most law enforcement agencies within the circuit use the Florida Department of Law Enforcement (“FDLE”) to investigate cases that result in death or serious bodily injury from the use of force by their officers. The largest law enforcement agency within the circuit, the Jacksonville Sheriff’s Office (“JSO”), does not. Instead, JSO assigns these cases to JSO Homicide detectives. While part of JSO, the scope of officer-involved critical incident investigations is broader than what FDLE investigates. Unlike FDLE, JSO investigates all officer-involved critical incidents (“OICIs”), regardless of whether death or great bodily injury results.

By history and custom, law enforcement agencies and departments in this circuit have called upon the State Attorney’s Office to independently review investigations of officer-involved critical incidents. That review is independent of the actual investigation and is designed to treat officer-involved shootings with the serious, objective, and independent review necessary when any human life is taken or great bodily injury occurs, particularly when law enforcement officers are involved.

Historically, a single prosecutor in this Office would review the OICI investigation and present his or her findings to the elected State Attorney, who would then issue a letter or memorandum of disposition to the sheriff or chief of the involved agency. As discussed below, those procedures have now changed under State Attorney Nelson’s administration.

The National Context of Officer-Involved Critical Incidents

Current research shows that over the past few years, law enforcement officers use force resulting in death about 1,000 times per year.[1]  Officer-involved critical incidents have become increasingly visible on a nationwide scale.[1]

Improvements and advancements in technology like smartphones, inexpensive surveillance equipment, mounted-car cameras, and officer-worn body cameras provide real-time depictions of law-enforcement officers using force when apprehending and interacting with suspects.  With the echoing effects of social media, images of these events have become all too prevalent, affecting the full spectrum of our nation’s communities, from big, urban cities to small, rural towns.  Uses of deadly force in places like Ferguson, Mo., North Charleston, S.C., Cincinnati, Ohio, and elsewhere have quickly become national media events, have fostered heightened civil unrest, and have garnered significant civil protest and debate. 

Against this backdrop, while police work has become increasingly public, police work also has become increasingly more dangerous.  The number of law enforcement officers injured or killed in the line of duty continues to increase.  According to the FBI’s National Press Office in May 2020, 48 law enforcement officers died from injuries incurred in the line of duty during felonious incidents in 2019.  As of June 18, 2020, 27 officers had been feloniously killed in 2020, an increase from 21 officers in the same time period for 2019.^[3]

Florida is one of the five most deadly states in the country for law enforcement officers.  Jacksonville officers have not been immune from this violence.  As of June 2020, the Jacksonville Sheriff’s Office reported that, in the history of its agency, 62 officers had died in the line of duty, with 32 of them killed by gunfire.  In recent years, a Clay County Sheriff’s Deputy was killed while executing a search warrant, a Nassau County deputy lost his life trying to apprehend an alien who entered the country illegally, and a JSO K-9 officer was shot in the face by a fleeing suspect.  Other examples exist. 

Policing work is dangerous.  Our courts have long recognized this reality and are extremely reluctant to substitute hindsight for on-the-spot, split-second decisions made by officers in the line of duty.   “[The Constitution] does not require a police officer to wait until a suspect shoots to confirm that a serious threat of harm exists . . . And no court can expect any human being to remain passive in the face of an active threat on his or her life” Elliott v. Leavitt, 99 F.3d 640, 643 (4th Cir. 1996).  Put differently, “[t]he Constitution simply does not require police to gamble with their lives in the face of a serious threat of harm.” Id. at 641.  The United States Supreme Court has similarly counseled that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).  Officers need not be absolutely sure, however, of the nature of the threat or the suspect’s intent to cause them harm—“the Constitution does not require that certitude precede the act of self-protection.” Elliott, 99 F.3d at 644.

Thus, when we review officer-involved critical incidents, this Office must consider all of the evidence and decide whether the split-second judgment and decision of a particular police officer, usually operating under a tense, uncertain, and rapidly evolving situation, was justified or crossed the line into criminal behavior.  The role this Office plays has nothing to do with law-making or policy-making.  We do not craft the law or oversee police tactics and operations.  Instead, this Office is charged with reviewing the facts of each particular case to determine compliance or noncompliance with the laws enacted by the people’s representatives in Tallahassee and the provisions of our state and federal Constitutions.  We also must weigh facts in light of what the subject officer knew at the time he or she shot—not in light of what months of investigation has revealed.  

The Process Now Employed by the State Attorney’s Office

Local prosecutors’ offices around the country have employed a number of localized responses to investigate and review officer-involved critical incident cases.  Following much study and review of how other offices around the country respond to these matters, as well as review of current best practices,[4] the State Attorney has established a team of experienced prosecutors and investigators to respond to, review, and evaluate every officer-involved critical incident in this circuit (the “OICI Review Team” or “Team”).  The OICI Review Team captures the best talent and insights of many of the most experienced prosecutors and investigators in the Office.  In addition to the significant homicide experience each team member possesses, a number of Team members have unique experiences investigating officer-involved critical incidents and participating in the investigation and prosecution of federal civil rights offenses.  Additionally, the Division Chief of the Office’s Human Rights Division is an integral part of the Team.

In terms of day-to-day functioning, the office has established an OICI SAO Team Leader who leads an experienced group of prosecutors and SAO investigators on the examination of all OICIs. Minimally, when an officer-involved critical incident takes place, the OICI Team Leader is contacted by the investigating law enforcement agency.  The Team Leader (or his or her designee) becomes the primary prosecutor in charge of ensuring the integrity of the investigation and is charged with making initial contact with investigators on the scene, reviewing the scene, ensuring all appropriate evidence is collected and processed, and conducting whatever interviews and taking whatever witness statements are necessary.  The OICI Team Leader can request additional investigative assistance from one or more investigators on the team, if needed.

(The office updated its OICI Policy in August 2020. To see the policy in its entirety, go here,) 

Although the State Attorney’s investigative resources do not permit the State Attorney to conduct full-blown scene investigations, Florida law provides the State Attorney with extremely broad investigative subpoena powers.  Section 27.04, Florida Statutes, grants the State Attorney all of the mandatory process of the Courts of this circuit to command persons throughout the state to appear and provide testimony in these matters.  Florida courts “have repeatedly held that the state attorney acts as a one-person grand jury in carrying out investigations into noncapital criminal conduct, and the state attorney must be granted reasonable latitude in that role.”  See, e.g., State v. Investigation, 802 So.2d 1141, 1144 (Fla. 2d DCA 2001); see also Doe v. State, 634 So.2d 613, 615 (Fla. 1994); Imparato v. Spicola, 238 So.2d 503, 506 (Fla. 2d DCA 1970); State v. Nat’l Research Sys., Inc., 459 So.2d 1134, 1135 (Fla. 3d DCA 1984); Op. Att’y Gen. Fla. 94-86 (1994).

Thus, while the function of the State Attorney is not to conduct the primary investigation into officer-involved critical incidents, the State Attorney is an independent Constitutional officer who functions separate and apart from law enforcement agencies conducting these investigations.  Unlike the law enforcement agencies, the State Attorney has subpoena powers and can subpoena testimony and records that the investigating agencies cannot.

Once the investigating agency completes its investigation, the assigned prosecutor and investigator receive final reports from the investigating agency and then present the case to the entire OICI Review Team for review.  The team-review serves as one additional check and balance to ensure that the investigation is thorough, and the conclusions reached are sound in light of the facts and the applicable law.  The entire OICI Review Team then makes a non-binding recommendation to the State Attorney, who has ultimate authority to issue our Office’s opinion on the matter.

Once a report like this is issued, the investigating agency has reviewed the matter, an experienced prosecutor and investigator have reviewed the matter, a full team of experienced prosecutors and investigators have reviewed the matter, and the elected State Attorney has reviewed the matter.  These multiple levels of review, highlight the importance this Office attaches to making sure the opinions we render in these cases are thorough, correct, sound, and reliable.

The Office also seeks to ensure that its conclusions and reasoning related to OICI reviews are transparent.  To this end, we have prepared this comprehensive report available to the public.

Florida Use of Force Laws

Some of these are not relevant to the investigation. Accordingly, these will not be discussed in any detail. However, a white paper, Authorized Use of Force by Law Enforcement Officers in Florida, attached as Exhibit B more fully outlines Florida’s Use of Force laws.

A. Justification Generally

While the use of force to defend oneself is often referred to as “self-defense,” the appropriate legal term is “justification.” Accordingly, the question this Office must answer in any officer-involved critical incident is whether the use of deadly force was justified under the law.

Section 782.02, Florida Statutes, states, “The use of deadly force is justifiable when a person is resisting any attempt to murder such person or to commit any felony upon him or her.” Fla. Stat. §782.02 (2017). Similarly, Section 776.012 Florida Statutes, permits the use of deadly force when a person “reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”[5]

When considering whether the use of force was justifiable, the law does not require the danger be real, just that the danger appeared so. “Whether [a person] was justified in the use of deadly force, you must consider the circumstances by which he or she was surrounded at the time the force was used. The danger need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, [the person] must have actually believed that the danger was real.” Fla. Std. Jury Instrs. in Crim. Cases3.6(f) (2017).

These principles of justification apply to any case Florida law, however, provides additional justification to law enforcement officers.

B. Justification for Law Enforcement Officers

Law enforcement officers are specifically permitted to use force, including deadly force, in two primary areas, making arrests and preventing escapes. Section 776.05, Florida Statutes governs the use of force by law enforcement officers when making an arrest. A law enforcement officer need not retreat or desist from making an arrest simply because a person resists or threatens to resist the arrest. Namely, a law enforcement officer is justified in using any force.

1. Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
2. When necessarily committed in retaking felons who have escaped; or
3. When necessarily committed in arresting felons fleeing from justice.[6]

Fla. Statute §776.05 (2017).

Overarching Section 776.05 is the principle that, to be justified, force must be reasonably necessary under the particular circumstances of the case. 

Footnotes

[1] John Sullivan, Four years in a row, police nationwide fatally shoot nearly 1,000 people, Wash. Post, Feb. 12, 2019, https://www.washingtonpost.com/investigations/four-years-in-a-row-police-nationwide-fatally-shoot-nearly-1000-people/2019/02/07/0cb3b098-020f-11e9-9122-82e98f91ee6f_story.html?utm_term=.0b5b30b01a1e

[2] FBI Releases 2019 Statistics on Law Enforcement Officers Killed in the Line of Duty,  FBI National Press  Office, Wash. D.C., May 4, 2020, https://www.fbi.gov/news/pressrel/press-releases/fbi-releases-2019-statistics-on-law-enforcement-officers-killed-in-the-line-of-duty

[3]  Law Enforcement Officers Killed and Assaulted (LEOKA) Program, https://www.fbi.gov/services/cjis/ucr/leoka

[4]  See Association of Prosecuting Attorneys, 21st Century Principles of Prosecution: Peace Officer Use of Force Project, APAINC.ORG, (Mar. 9, 2017) http://APAINC.org/peace-officer-use-of-force/.

[5] Forcible felonies are “treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.”  Fla. Stat. § 776.08 (2017). In a recent opinion, State v. Peraza, — So.3d —- 2017 WL 3730352 (Fla. 4th DCA 2017), Florida’s Fourth District Court of Appeal ruled that law enforcement officers enjoy the same benefit of these general justification laws that ordinary Florida citizens do.

[6] In Tennessee v. Garner, 471 U.S. 1, 11 (1985), the United States Supreme Court addressed the use of deadly force against a fleeing felon.   The Court noted that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”