Garcia v. Reyes, 96-2924
| Decision Date | 09 July 1997 |
| Docket Number | No. 96-2924,96-2924 |
| Citation | 697 So.2d 549 |
| Parties | 22 Fla. L. Weekly D1696 Juan Luis GARCIA, Sr., Appellant, v. Cristobal REYES and The City of Fort Lauderdale, Appellees. |
| Court | Florida District Court of Appeals |
Steven Wisotsky, Miami, for appellant.
Raoul G. Cantero, III and Jonathan D. Colan of Adorno & Zeder, P.A., Miami, for appellees.
Juan Luis Garcia, Sr. (Garcia) appeals from the dismissal with prejudice of his third amended complaint in which he sought a declaratory judgment and damages for thirty months of wrongful imprisonment resulting from police misconduct. We affirm, finding that there is no cause of action for money damages against the state, its agencies or employees acting in their official capacities for police misconduct arising directly under the due process clause, article I section 9, of the Florida Constitution. We further find that if any such action existed, a lawsuit against the City of Fort Lauderdale and its police officer, Cristobal Reyes, would be barred by sovereign immunity. See generally § 768.28, Fla. Stat. (1995).
In his third amended complaint, Garcia does not allege violations of 42 U.S.C. § 1983, nor does he assert any causes of action for traditional common law torts such as false arrest. Instead, Garcia claims that our holding in Garcia v. State, 582 So.2d 88 (Fla. 4th DCA 1991), where this court reversed his conviction for attempted armed trafficking and conspiracy on due process grounds, carries with it presumptive liability for civil damages. Our holding in Garcia was based on our finding in Londono v. State, 565 So.2d 1365 (Fla. 4th DCA 1990), that Garcia's co-defendant was "objectively" entrapped as a matter of law in a reverse-sting operation by the police.
Garcia argues that police misconduct violated his state due process rights constituting a wrongful act within the meaning of section 768.28. However, our supreme court has announced that " § 768.28, when viewed alone, was intended to render the state and its agencies liable for damages for traditional torts under state law, but to exclude such liability for 'constitutional torts.' " Hill v. Department of Corrections, 513 So.2d 129, 133 (Fla.1987) (citation omitted) (emphasis supplied). The United States Supreme Court later overruled Hill 's prohibition against bringing federal civil rights actions arising under § 1983 in Florida courts. See Howlett v. Rose, 496 U.S. 356, 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990). It did not, however, disturb Hill 's broader statement that the waiver of sovereign immunity pursuant to section 768.28 extended to traditional torts but not to "constitutional torts."
"[T]he creation of section 768.28, waiving sovereign immunity in certain circumstances, created no new causes of action against a governmental entity which did not previously exist." Huff v. Goldcoast Jet Ski Rentals, Inc., 515 So.2d 1349, 1350 (Fla. 4th DCA 1987) (citation omitted); see also Trianon Park Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985). As our supreme court explained in Trianon:
[I]t is important to recognize that the enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities. The statute's sole purpose was to waive that immunity which prevented recovery for breaches of existing common law duties of care. Section 768.28 provides that governmental entities "shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances." This effectively means that the identical existing duties for private persons apply to governmental entities.
To allow Garcia to bring a cause of action based on a violation of our state's constitution, where no concomitant duty arises for private citizens, would extend the waiver of sovereign immunity beyond the stated intent of the statute. It would also create a duty of care arising from the state constitution where none has previously existed.
It is only "when a duty of care exists does the essential inquiry turn to the question of sovereign immunity." George v. Hitek Community Control Corp., 639 So.2d 661, 663 (Fla. 4th DCA 1994). There has never been a common law duty of care with regard to:
[h]ow a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body.... This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials ....
Trianon, 468 So.2d at 919 (emphasis supplied) (citations omitted). This reasoning extends to the type of police conduct that is the subject of this lawsuit--the decision to institute a reverse-sting operation as a means of enforcing compliance with the laws. See also DeMarco v. Publix Super Mkts., Inc., 360 So.2d 134, 136 (Fla. 3d DCA 1978) (1), aff'd, 384 So.2d 1253 (Fla.1980). But see Shuttleworth v. Broward County, 639 F.Supp. 654 (S.D.Fla.1986) (2).
Although Garcia asserts that Florida courts have recognized due process causes of action in related contexts, the cases he relies on--Metropolitan Dade County v. Sokolowski, 439 So.2d 932 (Fla. 3d DCA 1983), and City of Riviera Beach v. Fitzgerald, 492 So.2d 1382 (Fla. 4th DCA 1986)--involve federal civil rights actions brought in state court. As the eleventh circuit recognized in an action to recover just compensation through inverse condemnation for injuries sustained as the result of an unreasonable zoning ordinance, there is "no support for the availability of an action for money damages, based either on trespass or violation of the right of due process, as guaranteed by the Florida Constitution." Corn v. City of Lauderdale Lakes, 816 F.2d 1514, 1518 (11th Cir.1987) (emphasis supplied), rejected on other grounds, Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1574 (11th Cir.1989).
Accordingly, we affirm the decision of the trial court.
PARIENTE, J., concurs specially with opinion.
I concur with the majority opinion, but write to address additional areas of concern under the facts of this case. Garcia asserts that his third amended complaint states a cause of action for a "state constitutional tort" under section 768.28(5) that closely parallels the type of constitutional tort under 42 U.S.C. § 1983 for police misconduct.
If Garcia seeks to rely on federal precedent in civil rights claims, it is noteworthy that no federal court has found a due process violation even where it held that entrapment had been established as a matter of law. See, e.g., Gunderson v. Schlueter, 904 F.2d 407, 411 (8th Cir.1990); Schieb v. Humane Soc'y of Huron Valley, 582 F.Supp. 717, 725 (E.D.Mich.1984) ().
Garcia correctly points out that the eighth circuit in Gunderson recognized that outrageous conduct by law enforcement authorities that "shocks the conscience" might violate substantive due process. 904 F.2d at 410. However, the eighth circuit rejected finding a due process violation giving rise to a federal civil rights action under the facts of that case. To do so would have brought the court "too close to converting every successful entrapment defense into a section 1983 action for damages." Id. at 411. Similarly, finding a due process violation based on the facts surrounding Garcia's entrapment would likewise convert every successful entrapment defense into a claim for damages under the due process clause of the state constitution.
Even assuming that a set of facts could be sufficiently egregious to give rise to a state-based constitutional tort, the actions of the police giving rise to Garcia's entrapment defense, as detailed in Londono v. State, 565 So.2d 1365 (Fla. 4th DCA 1990), are not sufficiently egregious so as to shock the judicial conscience. In fact, I have serious doubts whether the facts as set forth in Londono would constitute objective entrapment of Garcia as a matter of current law in light of our supreme court's decision in State v. Hunter, 586 So.2d 319 (Fla.1991). 3
In Hunter, our supreme court found that the appellant, who had been approached by his co-defendant and had "minimal telephone contacts" with an informant, could not benefit from his co-defendant's successful entrapment defense. Hunter, 586 So.2d at 322. "When a middleman, not a state agent, induced another person to engage in a crime, entrapment is not an available defense." Id. A defendant "cannot raise 'due process violations allegedly suffered by...
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