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  • Baker Act - Use of Force and Warrantless Entry

    A hot topic of contention now, amongst many LE departments throughout the state, is the Baker Act Statute, and how it pertains to use of force and warrantless entry into a dwelling/structure/conveyance.

    The questions

    1. Can reasonable force be used to take a subject into custody that is lawfully Baker Acted by the L.E.O, who is a direct threat to himself/others? (not a court-ordered ex parte Baker Act!!) If so, to what degree can the force be used, and under what circumstances?

    2. Can L.E. make a warrantless entry into a dwelling/structure/conveyance to take a mentally ill subject into Baker Act custody if they are a direct threat to themselves or others?

    3. Does L.E. in FL have a statutory or constitutional obligation to protect the life of a Mentally Ill person who is potentially going to commit suicide, but non-violently refuses to comply with L.E. (such as verbally refusing to exit their dwelling).




    Before anyone starts researching or answering, I will tell you what I already found.

    http://www.leg.state.fl.us/Statutes/...94-%3EPart%20I


    The Mental Health Act (Baker Act), does NOT mention that force can be used for an L.E.O initiated Baker Act, but nor does it forbid it. This ambiguity is skewed even further by stating that the Court Ordered Baker Act (ex parte) CAN be served with all force reasonable and necessary.

    Furthermore, I could NOT find any statute expressly forbidding Suicide or intentional self-infliction of injury. I also could not find any statute, including the Sheriff statute, that expressly details that L.E.O's of any type, including Sheriffs/Deputy Sheriffs are required to protect life/property. (Obviously, we all know that we are supposed to do those things, but without statutory obligation, this makes the original case even harder to present).

    http://www.leg.state.fl.us/statutes/...3EChapter%2030



    So, given the facts, am I simply overlooking a particular statute? Does anyone here have a clear answer to this topic?

    Obviously, the warrantless entry/search exception for exigent circumstances (or welfare check), would definitely apply to someone with a MEDICAL EMERGENCY (including Mental Health).


    Here is basically how it normally goes:

    Upon entry of the L.E.O for the suicidal person, that person refuses commands and thus commits a crime, in this case, Resisting Officer Without Violence. Now the L.E.O can use any force, reasonable and necessary to make the arrest for Resisting w/o. However, given that it is a misdemeanor arrest, the L.E.O now has to Baker Act the subject after taking them into custody, and ultimately will either choose to file charges against them for the misdemeanor, or use misdemeanor discretion and choose not to.

    My only issue is that our scope of force and warrantless entry for Baker Act is not clearly defined in the statutes, nor is there a clause for the L.E.O to use any force necessary for protection of life and property.


    I'm hoping that you fine brothers and sisters of the blue line will be able to come up with something for us.


    On a side note, our department has no qualms in using force to apprehend Baker Acts, but we end up charging them with crimes either way, which usually are dropped by the SAO.

  • #2
    I work as a security gaurd for a hospital that is s receiving facility for baker acted patients. According to Leo that I have spoken with if the subject meets criteria to be baker acted then they are allowed to use what ever force is necessary to take the person into custody. Wet have had several patients that have come on as a basket act that have been tazed. Furthermore if said person meets criteria and want come out of a building the fact that they meet criteria is the probable cause needed to gain entry without a warrant. Like I said I am just a security gaurd (for now waiting for interviews with LE agencies) but I have asked the same questions to LEO's over the years I've been there. Also that's for FL it could be different for other states.

    Comment


    • #3
      1. Done it a few times, up to take downs and taser deployment. I've had to thump a few nutty folks, and just brought them to psych ward without any charges.

      2. I kicked in a door once to take a BA-52 into protective custody. I've gone into houses without consent to pull out a suicidal guy or two.

      3. Yes?

      The above are just one man's opinions, and do not reflect the official viewpoints of Florida law enforcement agency.

      Comment


      • #4
        Yes, you may use force.

        It's actually pretty simple. The statute says that a law enforcement officer shall take a person into custody and deliver them to a receiving facility if they meet Baker Act criteria. It does not give you the option of not doing so. Since the criteria for involuntary commitment rises to the level of an exigency, no warrant or ex parte order is necessary. That said, there would be nothing wrong with obtaining an ex parte order in such a situation, although it would take much more time to do so.

        Like any other seizure/use of force issue there is always the possibility that either you or the agency could be sued, but as long as you're acting in good faith and there is no negligence you won't have a problem. There is actually a decent amount of case law on this issue but I can't look it up now. You might want to get with your agency's legal counsel.

        Additionally, the Baker Act is not a criminal process so probable cause is not required to initiate a commitment. The statute uses the term "reason to believe," which is the same as reasonable suspicion.
        Last edited by Delta_V; 11-22-2014, 07:26 PM.

        Comment


        • #5
          Originally posted by Delta_V View Post
          Yes, you may use force.

          It's actually pretty simple. The statute says that a law enforcement officer shall take a person into custody and deliver them to a receiving facility if they meet Baker Act criteria. It does not give you the option of not doing so. Since the criteria for involuntary commitment rises to the level of an exigency, no warrant or ex parte order is necessary. That said, there would be nothing wrong with obtaining an ex parte order in such a situation, although it would take much more time to do so.

          Like any other seizure/use of force issue there is always the possibility that either you or the agency could be sued, but as long as you're acting in good faith and there is no negligence you won't have a problem. There is actually a decent amount of case law on this issue but I can't look it up now. You might want to get with your agency's legal counsel.

          Additionally, the Baker Act is not a criminal process so probable cause is not required to initiate a commitment. The statute uses the term "reason to believe," which is the same as reasonable suspicion.

          Good Morning.

          Although all of what you say sounds a lot like what we all normally say, the point of contention is that the particular statute for the Mental Health Act, does not directly authorize force, as it does with the ex-parte order. However, you bring up a very good point that it says the L.E.O., "SHALL" bring the subject to the nearest receiving facility. Although, the word "SHALL" is fairly open for interpretation in this case with reasonable/necessary going to be thrown around a lot.

          Of course, as with anything, we get sued all the time. The major concern is whether or not warrantless entry and/or force is OK to use to take a suicidal person, or Baker Act into custody for treatement in FL, per Statute or Case Law.

          If you can find the case law later, I would greatly appreciate it. I'm about 3 days into searching for the case law on this, with negative results unfortunately.


          Like I stated in the OP - what we do on a regular basis, and what the statute specifically allows for, is not matching up, and therefore has brought forth a point of contention, particularly amongst certain members of the admin.


          Thanks.

          Comment


          • #6
            "Shall" is not open to interpretation. It means "shall", not "may", not "possibly", not "if you feel like it if the stars are in alignment", it means "shall"....you will. That is a specific direction, not a discretionary decision. Would you prefer to get sued for not doing anything? I'll bet the word "shall" will be emphasized. This job is lose, lose sometimes. Do what is best to help.
            September 11, 2001 - All gave some, some gave all. Never forget -- Never forgive.......... RIP Brothers and Sisters.

            Comment


            • #7
              Originally posted by So Fla Cop View Post
              "Shall" is not open to interpretation. It means "shall", not "may", not "possibly", not "if you feel like it if the stars are in alignment", it means "shall"....you will. That is a specific direction, not a discretionary decision. Would you prefer to get sued for not doing anything? I'll bet the word "shall" will be emphasized. This job is lose, lose sometimes. Do what is best to help.
              I think you misunderstood my original post.

              I personally, do not have ANY qualms about using force to Baker Act anyone. I have no problem making a warrantless entry for exigent circumstances in which a person is having a medical emergency.

              However, I am merely asking for case law or statutes that could BACK us up for making a warrantless entry or using force to take a Baker Act into custody.

              The most major issue is that force is specifically mentioned for ex-parte orders, but not for standard Baker Acts. The same thing with arrests, force is clearly mentioned.

              For the fact that it is not mentioned, we are relying on "shall" as you stated. However, for me to explicitly show my superiors that using force and/or making a warrantless entry for a Baker Act is justified in FL law, I need something more.

              My efforts are purely of a research mission in order to basically win an argument with concrete facts on paper, against a certain supervisor who is interpreting the law to make us less effective as LE.

              Comment


              • #8
                Sorry for the delayed response.

                One case is Estes v. State, 960 So.2d 873. This is a 5th DCA case involving a battery on LEO arrest that all started from a Baker Act situation. The court ruled that the officers made proper entry into the residence because they felt that the subject was in need of immediate aid. Since the entry was lawful, their subsequent actions were lawful and the defendant was properly charged and convicted when he resisted the officers.

                There are additional cases that basically say the same thing without specifically referring to the Baker Act. This is really something that your agency's legal counsel should research and present to the administration. If you don't have a legal counsel, your agency's chief can ask the Attorney General for an official opinion on the matter.

                Comment


                • #9
                  Originally posted by Delta_V View Post
                  Sorry for the delayed response.

                  One case is Estes v. State, 960 So.2d 873. This is a 5th DCA case involving a battery on LEO arrest that all started from a Baker Act situation. The court ruled that the officers made proper entry into the residence because they felt that the subject was in need of immediate aid. Since the entry was lawful, their subsequent actions were lawful and the defendant was properly charged and convicted when he resisted the officers.

                  There are additional cases that basically say the same thing without specifically referring to the Baker Act. This is really something that your agency's legal counsel should research and present to the administration. If you don't have a legal counsel, your agency's chief can ask the Attorney General for an official opinion on the matter.

                  A good case law indeed.

                  However, it only further solidifies charging Baker Acts with crimes if force is used.

                  What a sad state of times we live in...as the legalities grow, our ability as LE, decreases.

                  Comment


                  • #10
                    Originally posted by vacbanned4 View Post
                    A good case law indeed.

                    However, it only further solidifies charging Baker Acts with crimes if force is used.

                    What a sad state of times we live in...as the legalities grow, our ability as LE, decreases.
                    I haven't been online in a while and I know that this is a bit of an old thread, by why would you not want to charge someone with a crime just because they also meet Baker Act criteria? Just because they meet Baker Act criteria doesn't automatically make them either insane or incompetent, and even then that is a decision for a judge to make and not an officer on the street. That's one of the reasons that the statutes are clear about how a felony arrestee who meets Baker Act criteria should be transported to jail and processed like any other prisoner. The Baker Act is secondary at that point.

                    As in the case law that I mentioned above, I previously have been involved in Battery on LE cases where the defendants have been Baker Act subjects. That did not alter the criminal case one bit. In fact, charging them with a crime actually means that there's more of a chance that they will end up getting court ordered psychological treatment if they need it. It's rare around here that someone taken into custody per the Baker Act is actually kept for 72 hours, and it's even more rare that the receiving facility petitions the Court for a longer commitment.

                    Comment


                    • #11
                      Originally posted by Delta_V View Post
                      I haven't been online in a while and I know that this is a bit of an old thread, by why would you not want to charge someone with a crime just because they also meet Baker Act criteria? Just because they meet Baker Act criteria doesn't automatically make them either insane or incompetent, and even then that is a decision for a judge to make and not an officer on the street. That's one of the reasons that the statutes are clear about how a felony arrestee who meets Baker Act criteria should be transported to jail and processed like any other prisoner. The Baker Act is secondary at that point.

                      As in the case law that I mentioned above, I previously have been involved in Battery on LE cases where the defendants have been Baker Act subjects. That did not alter the criminal case one bit. In fact, charging them with a crime actually means that there's more of a chance that they will end up getting court ordered psychological treatment if they need it. It's rare around here that someone taken into custody per the Baker Act is actually kept for 72 hours, and it's even more rare that the receiving facility petitions the Court for a longer commitment.

                      Agreed - however the issue here is more of the warrantless entry approach, and also if you need to use force to B.A. someone.

                      Example, Joe Blow the local signal 20 decides he's going to play in traffic.

                      You arrive, he refuses voluntary exam or can not make a decision for himself - he flees from you. You chase him, tackle him, and into custody he goes.

                      While he does not actually fight you, he technically commits the act of Resisting Officer w/o Violence by refusing your lawful commands and obstructing your investigation/lawful duties.

                      My point is, why bother charging him with a simple R/A misdemeanor? He's a regular B.A., and I believe force should be used without having to charge him separately with that crime.

                      Moreover, assume someone is holed up in their house, threatening that they are going to kill themselves. They have not yet made the attempt to do so (as far as you know). The issue here is that this might not qualify for exigency (on terms of preservation of life) warrantless entry (or at least the lawyers are trying to tell us that).

                      I'm very much used to simple baker acts....using force to take them into custody and bringing them to the receiving facility. IF they get incredibly violent with us, we charge them with the felony and take them to county jail instead of the receiving facility.

                      My major issue here is having to charge them with a petty misdemeanor if you want to use force to B.A. them as a CYA policy. It's a lot of unnecessary paperwork, and it actually opens us up to more litigation (at least in my opinion).


                      Sorry if this post is all over the place, I just can't seem to wrap my head around this new way of doing things.

                      Comment

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