Absolute governmental immunity (i.e., sovereign immunity) has been abolished in most jurisdictions and replaced by a state tort claims act or similar statutory framework. An applicable tort claims act defines the limited scope and types of claims that can be brought against the government.
Many of these state statutes have retained governmental immunity from any liability for negligence under a “discretionary function” exception. In general, these immune discretionary functions involve the powers inherent in government to exercise independent judgment in policy and planning decision making without fear of liability and being second guessed by the courts.
One such immune discretionary function generally includes policy decisions by governmental officials on the manner in which to deploy available law enforcement resources. In the case described herein, the issue was whether the county was immune from any liability for alleged negligent security in failing to deploy police to a public park where a shooting occurred. In resolving this issue, the appeals court had to determine whether the county had exercised judgment and discretion in establishing a park rental policy, which stipulated the county was not responsible for security during an event in a public park.
911 Shots Fired
In the case of Sanchez v. Miami-Dade County, 2018 Fla. App. LEXIS 5600 (Fla.App. 3 Dist. 4/25/2018), plaintiff Christopher Sanchez was shot in Miami-Dade County’s Benito Juarez Park while attending Eli Salgado’s birthday party. The specific issue before the court was whether the county was immune from any liability for alleged negligence in failing to “allocate off-duty police officers as security to protect [shooting victim Sanchez and] the partygoers” at Salgado’s event.
On August 24, 2012, Eli Salgado purchased a Miami-Dade County Park Foundation membership for $149. This membership included a coupon book containing several promotional items, including a coupon for the use of a park shelter without payment of the requisite rental fee.
Along with Salgado’s membership and the coupon booklet, Salgado was given a copy of the park’s rules and regulations to be followed when renting a park facility. These rules contained a section regarding when permits and off-duty officers are required and provided notice to Salgado that it was his responsibility to obtain the correct permit(s) and to hire off-duty police officers under certain circumstances.
When Salgado rented a shelter at the park for his September 22, 2012, birthday party, he simply asked to rent the shelter and used the free rental coupon contained in his membership coupon booklet. Salgado did not obtain any permits or hire any off-duty police officers. Instead, he procured two private security officers to provide security at the party.
The only park employee present for this after-hours private party was Diogenes Martin, a part-time park service aide, whose responsibilities were to clean the restrooms and the park before and after an event, keep the area clean and change the trash bags during the event. Also present was a teenage volunteer who was helping Martin that night.
Martin testified in his deposition that he performed his duties as required on the night of the party. He made sure the restrooms and area were clean, the trash was properly disposed of and the trash bags were changed when the cans became full. He explained that Salgado was celebrating his 18th birthday, and the party consisted of mostly 16- to 18-year-olds who were eating, dancing and just having a good time.
Salgado’s parents were present at the party. There were also two large men present, wearing “Security” T-shirts, who appeared to be patrolling the area and providing security for the party. Martin did not see anyone using drugs, fighting or having a confrontation with anyone. Everything was calm and everyone seemed to be having a good time when, suddenly, at around 10:00 or 10:30 p.m., he heard shots fired. As soon as he realized that some of the kids had been shot, he called 911 and then called his supervisor.
Inga Portilla, a park manager, confirmed that park service aides are only responsible for maintenance within the park. Park service personnel do not provide security, do not check to see if the renter has obtained the required permits, are not trained in crime prevention and are not authorized to “police” the area. Portilla explained that “once we rent the facility, we don’t have anything to do with direct involvement of the parties,” and “we are not responsible for the party.” According to Portilla, it was Salgado’s responsibility to follow the rules, obtain the necessary permits and hire off-duty police officers if he was having a party that required off-duty police officers.
Negligent Security Claim
Sanchez brought a claim of negligent security against the county. In so doing, Sanchez alleged the standard of care for the county was established by county procedures, which required “at least one off-duty police officer” at the party. Sanchez claimed the county had effectively admitted that “there should have been at least one off-duty police officer to provide security at the park,” because “the County park zone manager testified that off-duty police were required to deter crime and for safety and to be proactive.”
In addition, Sanchez’s “security expert” had testified “about the need for police at the event and the deterrent effect that police have”:
At least two off-duty officers should have been providing security according to the security expert. The record shows that the attack was both foreseeable and preventable...The county’s park manager admits that this event required at least one off-duty police officer to provide security...However, there were no off-duty police officers providing security at the party. Off-duty police officers provide much more effective security than private security guards who have no more authority than any ordinary citizen.
Accordingly, Sanchez’s security expert opined it was “foreseeable that there would be criminal activity at the party, but it could have been avoided had the county provided the off-duty officers.”
In response, under applicable state law, the county argued it was immune from any liability for negligent security. The trial court agreed and entered summary judgment in favor of the county. Sanchez appealed. On appeal, the issue was whether governmental immunity barred Sanchez’s negligence claims against the county.
Policy/Planning Immunity
According to the appeals court, the test for determining when a governmental entity enjoys immunity from liability would depend on whether the alleged negligence involved a policy/planning decision:
Certain quasi-legislative policy-making, planning or judgmental governmental functions cannot be the subject of traditional tort [i.e., negligence] liability...[On the other hand,] decisions or actions implementing policy, planning, or judgmental governmental functions — generally do not enjoy sovereign immunity...
While nearly every endeavor involves some level of discretion, it is the governmental quasi-legislative discretion exercised at the policy-making or planning level which is protected from tort liability.
In this instance, the appeals court found “the unrefuted evidence supports the legal conclusion that the County made a discretionary policy/planning decision to allow patrons of its parks to rent its facilities for private parties or events”:
Relying on its legislative/permitting/licensing authority, the County enacted certain rules and regulations governing the rental and use of its parks and the park’s facilities. Based on the County’s limited resources, it exercised its discretion to assign only twenty-seven officers to the Parks and Recreation Department to service all of the parks, beaches, and County-owned recreational areas located throughout the county and to direct those officers to primarily patrol the public beaches and marinas on the weekends, rather than directing them to patrol and monitor private parties being held in public parks.
As noted by the court, the county had “included certain restrictions and requirements within its enacted rules and regulations and rental agreements, which the party or event host was required to follow”:
Among other things, these rules and regulations required the renter to go to the police department and (1) obtain a broadcast permit if using a D.J., live music, or sound equipment; (2) obtain a special event permit if over 200 guests were expected to attend; and (3) hire off-duty police officers under each of these scenarios.
Further, the appeals court found that “the rules and regulations and the rental agreement specified that the County’s park employees would not be responsible for the failure to meet any of these requirements.” Moreover, the court noted Salgado did not abide by these rules and regulations when he used his free coupon to rent a pavilion for his birthday party:
Although Salgado had a D.J. and sound equipment at the party, he did not obtain a broadcast permit or hire off-duty police officers from the police department. Contrary to the County’s rules and regulations, Salgado had hired two private-duty security officers instead of obtaining the necessary permit(s) and hiring off-duty police officers.
Having found “the County’s decisions were quasi-legislative discretionary policy or planning decisions,” the appeals court determined governmental immunity would apply.
Police Deployment Discretion
In reaching this conclusion, the appeals court acknowledged the county’s power to govern was protected under the doctrine of sovereign (i.e., governmental) immunity whenever it “exercises discretionary authority to enforce compliance with the laws and protect the public safety.” In particular, the appeals court noted “[t]he decisions of the County regarding where and how to deploy its available manpower (sworn police officers) is a discretionary or planning function”:
It was a governmental decision made in the exercise of its discretionary authority regarding the manner in which compliance and enforcement of the law and the protection of the public would be effectuated.
As characterized by the appeals court, the county had decided not to assign officers to patrol or be present at private parties or events held in its public parks. Instead, the county required those who rented its park facilities to obtain permits and hire off-duty officers for certain types of events. Similarly, the appeals court found it was also a “planning/policy discretionary governmental decision” on the part of the county to determine how those who rented its park facilities would be notified of their obligations and responsibilities.
Law Enforcement Priorities
As cited by the appeals court, “the Florida Supreme Court and intermediate appellate courts have long held that a municipality’s decision on where to allocate its police resources is a planning level decision that is not subject to civil liability”:
The city has the right to set its priorities in reference to law enforcement. Inherent in the right to exercise police powers is the right to determine strategy and tactics for the deployment of those powers. The sovereign authorities ought to be left free to exercise their discretion and choose the tactics deemed appropriate without worry over possible allegations of negligence.
A government must have the flexibility to set enforcement priorities on its police power ordinances in line with its budgetary constraints. Without the ability to make such choices, a government must either pay the high cost of total enforcement or forego the exercise of its police power. Neither option serves the public interest.
Allocating Police Resources
Applying these principles to the undisputed facts in this particular case, the appeals court found that “the county had allocated only twenty-seven officers to the parks department, and of those twenty-seven, they were assigned primarily to patrol the public beaches and marinas”:
[T]he county made a strategic decision in allocating its law enforcement personnel to dedicate only a few dozen officers to its parks, rather than other high crime areas in the county, and to prioritize beach-and-marina parks over other ones.
In the opinion of the appeals court, “the county’s decision to allocate its scarce law enforcement resources to one area of the county over another is the kind of discretionary, planning and policy decision that is protected by sovereign immunity”:
To hold otherwise would be to require the county to allocate police officers to park birthday parties, to the exclusion of other high-crime or high-priority areas, or face millions of dollars in potential liability. Such a decision would violate the constitutional principle that policy-making, planning, and judgment calls by the government are reserved to the executive and legislative branches, and cannot be second-guessed and picked-over by the courts through traditional tort liability.
Given the need to allocate scarce law-enforcement resources, the appeals court recognized the county had made a conscious policy decision to require the person throwing a party in a county park to provide security, not the county. As a result, the appeals court determined the county’s alleged negligence in failing to allocate off-duty officers to the party was a planning decision, immune from any claims of negligence.
Conclusion
The appeals court, therefore, held “the county is shielded from liability for not allocating off-duty police officers,” because sovereign immunity “protects its policy and planning decisions about where to allocate its limited police resources.” Having found the trial court had “correctly concluded the county was entitled to sovereign immunity,” the appeals court affirmed the summary judgment in favor of the county.
In reaching this conclusion, the appeals court acknowledged that this was a “tragic case” in which “two young men were shot while attending a party.” In finding the county was immune from any liability, the appeals court, however, noted the shooting victims were not left without a legal remedy. On the contrary, the appeals court indicated the “shooters, the party organizer, the security guards and some others may be responsible for their negligent and willful actions,” in separate lawsuits not involving the county.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).