Florida Police Department Responsibility for Sexual Assault by Law Enforcement Officers

Florida police departments are not immune from employing a few bad apples. Occasionally, we learn of a law enforcement officer taking advantage of a vulnerable woman while in uniform during working hours. When such a vile event occurs, the legal question arises as to whether or not the offending officer’s agency must bear civil (as opposed to criminal) responsibility for the officer’s actions. The obvious reaction would seem to be, Yes, of course!!! Unfortunately, the reality is not so simple.

Florida employers may be held liable for the intentional actions of their employees under two legal principles: (1) Negligent hiring. Where the employer knew or should have known prior to hiring that the potential employee was of unfit character, but hired anyway; and (2) Negligent retention. When the employer knew or should have known after hire of an employee’s unfit character, but fails to terminate or modify the employment responsibilities.

However, merely establishing one or both of these principles is not enough. The victim must also show that (1) the unfit character of which the employer knew or should have known had some reasonable relationship to the bad acts committed; and (2) the bad acts were initiated in the course and scope of employment and to serve the interests of the employer.

One of the leading cases in Florida regarding this topic is Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. App. 1 Dist., 1991). Tallahassee Furniture’s employee was hired to deliver furniture to customers’ homes. More than one month after making a delivery, he returned to a female customer’s home and raped her. The young victim sued the employer, Tallahassee Furniture, for negligent hiring and retention.

During trial, the victim presented evidence of the driver’s unfitness for employment duties involving the entry of customers’ homes, including a juvenile record for armed robbery and burglary; adult records of arrest for assault and battery; voluntary hospitalization for psychiatric problems on two occasions, in 1979 and 1981, with a diagnosis of paranoid schizophrenia, including reported delusions of voices telling him to kill himself and to kill other people; and heavy drug use around the period of the assault.

The jury jury found Tallahasse Furniture Co., Inc. liable for personal injuries suffered by the victim, and awarded compensatory and punitive damages. The case was appealed to the Florida First District Court of Appeal, which, in a well-reasoned decision, affirmed the jury’s verdict. The Florida Supreme Court refused to review the 1st DCA’s decision.

Our law firm used the Tallahassee Furniture case to successfully sue a thrift store for the damage caused by one of its deliverymen from punching our client in the head. We learned during the disovery process that the offender had a record of resisting arrest and during his employment, was known as “Little Mike,” as in Mike Tyson, the former world heavyweight boxing champion, for his propensity to fight. The case settled out of court.

The law in Florida regarding agency/employer liability for the bad acts committed by law enforcement officers is the same as that clearly established in Tallahassee Furniture.

The defense often raised in all of these cases, including those involving police offcers, is whether or not the bad acts were initiated in the course and scope of employment and to serve the interests of the employer. This issue was addressed in Hennagan v. Dept. of Highway Safety and Motor Vehicles, 467 So.2d 748, 751 (Fla. 1st DCA 1985), which involved a highway patrolman’s sexual abuse of a minor, which occurred under the guise of a search for theft. Wisely, the appellate court concluded that even if an employee’s act is a criminal offense, it does not preclude a determination that the acts were initiated in the course and scope of employment and to serve the interests of the employer. The court held that regardless of whether the conduct itself is criminal, “conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and is activated at least in part by a purpose to serve the master.”

In our system of justice, nobody is supposed to be above the law. Thankfully, we have cases on the books that uphold this important principle.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

Contact us at 866-785-GALE or by email to learn your legal rights.

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