Florida Senate - 2017 SB 52
By Senator Braynon
35-00051-17 201752__
1 A bill to be entitled
2 An act for the relief of Maury Hernandez; providing an
3 appropriation to compensate him for injuries and
4 damages sustained as a result of the alleged
5 negligence of the Department of Corrections; providing
6 legislative intent for the waiver of certain liens;
7 providing a limitation on the payment of fees and
8 costs; providing an effective date.
9
10 WHEREAS, on August 6, 2007, at approximately 11:45 a.m.,
11 Broward County Sheriff’s Office (BSO) Deputy Maury Hernandez,
12 then 28 years of age, was operating a BSO-assigned vehicle, and
13 WHEREAS, Deputy Hernandez observed David Maldonado, who was
14 operating a motorcycle, run through three traffic lights on
15 Pembroke Road in Pembroke Park, and
16 WHEREAS, Deputy Hernandez followed Mr. Maldonado to a
17 location in the 3700 block of Pembroke Road and, displaying his
18 badge, approached Mr. Maldonado and identified himself as a
19 deputy sheriff, and
20 WHEREAS, Mr. Maldonado told Deputy Hernandez that he was a
21 police officer from Opa-Locka, but then pushed Deputy Hernandez,
22 jumped from his motorcycle, and ran, at which time Deputy
23 Hernandez gave chase on foot, and
24 WHEREAS, within seconds, Mr. Maldonado turned around and
25 fired two shots from a .45 caliber handgun, striking Deputy
26 Hernandez in the head with one of the bullets, and
27 WHEREAS, Deputy Hernandez was rushed to Memorial Regional
28 Hospital in Hollywood in critical condition, and
29 WHEREAS, Mr. Maldonado was subsequently apprehended by
30 Hollywood police in a nearby condominium complex after he
31 attempted a carjacking, and
32 WHEREAS, the BSO conducted an investigation that concluded
33 that Mr. Maldonado should have been in jail at the time of the
34 shooting because he was serving 2 years’ probation and had
35 repeatedly violated the terms of his probation, but the
36 Department of Corrections had failed to bring the violations to
37 the attention of the State Attorney’s Office and the presiding
38 circuit judge, and
39 WHEREAS, the investigation found that on April 18, 2007,
40 Mr. Maldonado, a habitual traffic offender, pled no contest to
41 felony driving charges and was placed on probation for 24
42 months, and
43 WHEREAS, at that time, Mr. Maldonado had nearly 40 traffic
44 and administrative violations, including reckless driving,
45 speeding, and repeatedly driving without a license, and
46 WHEREAS, Mr. Maldonado was advised in writing of the
47 department’s zero-tolerance policy, which stated, “The
48 Department of Corrections has a zero tolerance policy as to
49 reporting violations of supervision conditions. This is
50 notification to you that you are subject to violations
51 proceeding, including arrest, if you are not in compliance with
52 all conditions of supervision as required by the sentencing
53 court or releasing authority,” and
54 WHEREAS, under s. 948.03(1)(m)1., Florida Statutes, Mr.
55 Maldonado was prohibited from possessing, carrying, or owning
56 any firearm unless authorized by the court, and under s.
57 948.03(1)(n), Florida Statutes, was banned from using
58 intoxicants to excess or possessing any drugs or narcotics
59 unless prescribed by a physician, and
60 WHEREAS, the department had a nondiscretionary duty to
61 report Mr. Maldonado’s violations of these laws to the assistant
62 state attorney and presiding circuit judge without delay, and
63 WHEREAS, Mr. Maldonado’s probation strictly prohibited him
64 from carrying a weapon without a court order, from using alcohol
65 in excess and prescription drugs that he had not been
66 prescribed, and required him to complete and submit honest
67 monthly reports to his probation officer, all of which he
68 violated over the course of the 4 months before he shot Deputy
69 Hernandez, and
70 WHEREAS, the BSO investigation found that despite
71 Maldonado’s admissions to carrying a weapon, his deceit
72 concerning the place of his employment, his false claim that he
73 was a United States Marine, his lies that he had a concealed
74 weapons permit and he needed his gun to be a security officer
75 and for his military service, and his confession to using
76 alcohol and nonprescribed drugs, the department unreasonably
77 failed to verify any of his statements regarding his employment,
78 military service, or otherwise act on any of Maldonado’s
79 probation violations, and
80 WHEREAS, the department knew or should have known that Mr.
81 Maldonado lied about his place of employment, his military
82 service, and the reasons he stated for possessing a firearm, and
83 WHEREAS, the department was on notice that Mr. Maldonado
84 had used alcohol and nonprescribed drugs but it did not act on
85 his self-confessed probation violations, and
86 WHEREAS, the department had a nondiscretionary duty to
87 enforce its zero-tolerance policy and report Mr. Maldonado’s
88 probation violations to the assistant state attorney and the
89 presiding circuit judge without delay, and
90 WHEREAS, although the department admitted that Mr.
91 Maldonado had violated the terms of his probation before he shot
92 Deputy Hernandez, it has never explained why it did not enforce
93 its own zero-tolerance policy as to Mr. Maldonado, and
94 WHEREAS, after the shooting incident, the state attorney’s
95 office announced that Mr. Maldonado’s probation violations
96 should have been reported to the assistant state attorney and
97 the presiding circuit judge assigned to the case, and that, if
98 the violations had been reported, Mr. Maldonado would have been
99 jailed without bond and would not have been on the streets at
100 the time he shot Deputy Hernandez, and
101 WHEREAS, the shooting of Deputy Hernandez by Mr. Maldonado
102 was a reasonably foreseeable consequence of the department’s
103 failure to enforce the conditions of Mr. Maldonado’s probation,
104 comply with the laws of Florida, and follow its own policies and
105 procedures, and
106 WHEREAS, Deputy Hernandez survived the shooting, was in a
107 coma and on life support for 3 weeks, underwent multiple
108 surgeries, and remained hospitalized for almost 3 months before
109 being discharged to the care of a rehabilitation hospital, and
110 WHEREAS, Deputy Hernandez was confined to a wheelchair and
111 underwent physical, occupational, speech, visual, and cognitive
112 therapies all day each weekday for a year, and
113 WHEREAS, Deputy Hernandez continued to receive physical and
114 occupational therapies and other medical care on a daily basis
115 until 3 years ago, when his insurance provider discontinued
116 payments to his health care providers, and
117 WHEREAS, as a result of the shooting, Deputy Hernandez
118 suffers from permanent brain injury and resulting hemiparesis to
119 the entire left side of his body, motor and sensory nerve
120 damage, spasticity, numbness, severe muscle weakness, impaired
121 abilities in walking and balance, hydrocephalous that is treated
122 with a permanent ventriculoperitoneal shunt, cognitive deficits,
123 and fragments of the bullet that are permanently lodged in his
124 brain, and
125 WHEREAS, Deputy Hernandez has continued, on his own, to
126 engage in physical and occupational therapies to improve his
127 hemiparesis, but still requires medical care and professional
128 therapy treatments to maintain maximum medical stability, and
129 WHEREAS, Deputy Hernandez has regularly received painful
130 Botox injections and other medications to improve muscle tone
131 and reduce spasticity, and
132 WHEREAS, at the time of his injury, Deputy Hernandez was
133 earning an annual salary of approximately $60,000, plus generous
134 benefits, including medical and retirement, and
135 WHEREAS, Deputy Hernandez’s injuries have catastrophically
136 changed his life and impaired his ability to earn a living, and
137 WHEREAS, Deputy Hernandez attempted to return to work at
138 the BSO, but was unable to perform to minimum standards, and
139 WHEREAS, Deputy Hernandez has suffered significant economic
140 damages, including lost income and the capacity to earn income
141 and job related benefits, including medical insurance and
142 retirement benefits, and
143 WHEREAS, Deputy Hernandez has received workers’
144 compensation benefits that have partially covered his loss of
145 income and medical care costs, but liens have been filed
146 amounting to hundreds of thousands of dollars, and
147 WHEREAS, Deputy Hernandez is 37 years old and has a life
148 expectancy of 42.6 years according to the Centers for Disease
149 Control and Prevention’s United States Life Tables, 2008, and
150 WHEREAS, Deputy Hernandez has suffered devastating and
151 permanent injuries and damages, including pain and suffering;
152 total disability; physical and mental impairment; disfigurement;
153 mental anguish; inconvenience; loss of enjoyment of life;
154 hospital and medical care expenses; the loss of earnings and
155 earning capacity; the loss of benefits, including medical and
156 retirement income benefits; liens; and other economic and
157 noneconomic losses, and
158 WHEREAS, a lawsuit filed on behalf of Deputy Hernandez in
159 the 17th Judicial Circuit in and for Broward County which sought
160 relief under s. 768.28, Florida Statutes, was dismissed by the
161 trial court based on the department’s argument that, despite its
162 failure to follow Florida law, its own policies and procedures,
163 and the terms of Maldonado’s probation, the department owed no
164 duty of care to Deputy Hernandez, and
165 WHEREAS, appeals of the court’s ruling would be fruitless
166 and would only cause further delay in bringing financial relief
167 to Deputy Hernandez, and
168 WHEREAS, despite the court’s ruling that he is legally
169 remediless to seek damages, Deputy Hernandez respectfully
170 requests that the Legislature find that a moral obligation
171 exists in this particular instance based on the Legislature’s
172 view of justice and fair treatment, and
173 WHEREAS, Deputy Hernandez respectfully requests that, as a
174 matter of grace, the Legislature exercise its lawful powers to
175 appropriate a sum of monetary compensation that fully recognizes
176 the magnitude of his injuries, disabilities, and economic
177 damages, and
178 WHEREAS, given the facts and circumstances that resulted in
179 his injuries and damages, Hernandez seeks equitable relief from
180 the Legislature, NOW, THEREFORE,
181
182 Be It Enacted by the Legislature of the State of Florida:
183
184 Section 1. The facts stated in the preamble to this act are
185 found and declared to be true.
186 Section 2. There is appropriated from the General Revenue
187 Fund to the Department of Corrections the sum of $10 million for
188 the relief of Maury Hernandez for injuries and damages
189 sustained.
190 Section 3. The Chief Financial Officer is directed to draw
191 a warrant in the sum of $10 million payable to Maury Hernandez
192 upon funds in the State Treasury to the credit of the Department
193 of Corrections, and the Chief Financial Officer is directed to
194 pay the same out of such funds in the State Treasury not
195 otherwise appropriated.
196 Section 4. It is the intent of the Legislature that all
197 lien interests held by the state, if any, arising from the
198 treatment and care of Maury Hernandez for the occurrences
199 described in this act are waived.
200 Section 5. The amount awarded under this act is intended to
201 provide the sole compensation for all present and future claims
202 arising out of the factual situation described in the preamble
203 to this act. The total amount paid for attorney fees, lobbying
204 fees, costs, and other similar expenses relating to this claim
205 may not exceed 25 percent of the total amount awarded under this
206 act.
207 Section 6. This act shall take effect upon becoming a law.