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Florida Supreme Court rules Miami civilian agency doesn't have power to subpoena police officer

By Elizabeth Alt | Jul 3, 2017

General court 03

TALLAHASSEE — The Florida Supreme Court ruled June 22 in a unanimous decision that Miami’s Civilian Investigative Panel (CIP) cannot compel Miami police officers to appear before its board while under investigation. 

The justices said the subpoenas violate special protections afforded police in Florida under a provision called the Police Bill of Rights.

CIP was created in 2002 following several highly publicized shootings. According to CIP, the organization provides independent and impartial citizens’ oversight of the Miami Police Department.

On March 5, 2009, a complaint was filed with CIP against Lt. Freddy D’Agastino for alleged misconduct during a traffic stop. The city of Miami Police Department’s Internal Affairs Division investigated and reported its findings were inconclusive due to a lack of witnesses aside from two other police officers. With the Internal Affairs investigation complete, the CIP issued a subpoena to D’Agastino, ordering him to appear before the CIP to testify.

D’Agastino filed an action in the circuit court, claiming that the CIP as an investigative authority conflicts with a component of the Police Bill of Rights (PBR) and asked for the subpoena to be quashed. The Fraternal Order of Police also filed a declaratory action, alleging that the CIP actions conflicted with Florida statutes. The two cases were consolidated, and the trial court ruled in favor of the CIP. D’Agastino appealed to the 3rd District Court of Appeal, which also ruled in favor of the CIP. D’Agastino then took the case to Florida’s highest court.

Lewis wrote that the Supreme Court cannot uphold the CIP’s subpoena.

“To uphold the CIP’s authority to issue subpoenas to officers in connection with investigations of their conduct would impermissibly countermand the rights conferred by the PBR upon the officer,” he wrote.

The justices wrote in the ruling that the CIP’s invocation of its subpoena power as it applies to police officers is unconstitutional, noting that compelling investigations of police officers in investigations that can lead to disciplinary actions is preempted by the PBR.

Lewis also wrote that upholding the trial and appeals courts' decision could render the limitations in the PBR meaningless and could lead to the formation of other groups like the CIP. He wrote that if given subpoena power, CIP could subject an officer to repeated governmental pressure over an extended period of time.

Justice Barbara J. Pariente concurred with the opinion.

She noted that "courts should be 'careful in imputing an intent on behalf of the Legislature to preclude a local elected governing body from exercising its home rule powers. I continue to urge courts to take an extremely narrow approach before concluding that a municipal ordinance is unconstitutional based on implied legislative preemption.'"

The petitioners were represented by Robert C. Buschel and Eugene G. Gibbons of Buschel Gibbons P.A. in Fort Lauderdale and Ronald J. Cohen of Rice Pugatch Robinson Storfer & Cohen PLLC, also in Fort Lauderdale.

The city of Miami was represented by Victoria Mendez, city attorney, and John A. Greco, deputy city attorney of Miami and CIP was represented by Edward G. Guedes, John J. Quick and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman in Coral Gables.

Supreme Court of Florida case number SC16-645

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