Arrests

The purpose of Order 201 is to establish the procedures JSO officers use when making arrests.

The policy begins by defining the legal standards used during an arrest. A warrantless arrest requires probable cause. An investigatory detention requires reasonable suspicion, which is a lower standard than probable cause but requires more than a hunch.

Before making a physical arrest, an officer must determine whether arrest is the most appropriate response. For minor misdemeanor offenses and municipal ordinance violations, the policy identifies several alternatives. These include a warning, a Notice to Appear, a State Attorney referral, a criminal traffic citation, a juvenile civil citation, or an involuntary examination under the Baker Act or Marchman Act when the legal requirements for those procedures are met.

The Notice to Appear procedure provides additional rules for misdemeanor arrests. When a person meets the eligibility requirements, the officer is generally required to issue a Notice to Appear rather than make a physical arrest. If the officer decides to physically arrest a person who is otherwise eligible, a supervisor must approve the decision and the approval must be documented in the Arrest & Booking Report.

After an arrest, the officer must complete an Arrest & Booking Report. The report must describe the probable cause for each charge and must be written from a neutral perspective. A supervisor must review the report before the person is admitted to the Pretrial Detention Facility. JSO employees are prohibited from approving their own arrest reports.

The policy also establishes special procedures for arrests inside residences, arrests outside Duval County, arrests based on warrants, arrests involving juveniles, arrests involving medical conditions, arrests involving mental illness, probation violations, foreign nationals, diplomats, legislators, and people temporarily held in a JSO holding room.

Several of these procedures create additional safeguards.

Medical treatment must be requested when an arrestee is injured, ill, or requests medical attention. Medically unstable or infectious individuals cannot be transported by officers. Juveniles who are injured, intoxicated, or seriously ill must receive medical clearance before being taken to the Pretrial Detention Facility.

Warrants must be validated before booking. Local arrest warrants and capiases are also tracked through JSO's eWarrants system.

Temporary holding-room use is documented through an observation form. The form records the reason for detention, the time the person entered and left the holding room, observations by officers, and the provision of water, meals, or personal breaks.

Because Order 201 controls many different types of arrests, the policy combines routine arrest procedures with several areas involving additional constitutional or statutory requirements. Some of those specialized provisions require closer review.

One strength of Order 201 is that the existence of probable cause does not automatically require a physical arrest.

The policy instructs officers to first determine whether another lawful response can accomplish the purpose of the law. For minor or inadvertent misdemeanor offenses, officers may use warnings, Notices to Appear, State Attorney referrals, traffic citations, juvenile civil citations, or other appropriate alternatives.

This reduces the number of situations in which jail is treated as the only available response.

The Notice to Appear procedure provides another safeguard.

When a person meets JSO's eligibility requirements, the officer is generally required to issue the Notice to Appear. If the officer instead chooses physical arrest, the officer must obtain supervisory approval and document that approval in the Arrest & Booking Report.

This creates a second review before a person who could otherwise be released is taken to jail.

Florida Rule of Criminal Procedure 3.125 also recognizes the use of Notices to Appear instead of physical arrest for qualifying misdemeanor and ordinance violations.

The Arrest & Booking Report procedure is also relatively strong.

The arresting officer must document the elements of every offense and establish probable cause for each charge. The report must be written from a neutral perspective.

Afterwards, a supervisor reviews the report for completeness and probable cause. Self-approval is prohibited.

Therefore, the arresting officer does not make the final documentation decision alone.

The warrant procedures contain similar verification requirements.

Outstanding warrants must be confirmed before booking. Local warrants are validated through the Identification Unit, and eWarrant status must be updated when a warrant is served, recalled, or dismissed. A validated warrant also has a limited period during which it may be served before a new validation is required.

The medical provisions contain several useful protections.

When an arrestee requires or requests medical attention, officers must request Jacksonville Fire and Rescue Department personnel. If the person requires hospitalization, JFRD normally provides transportation.

Once a medical provider determines that an arrestee is medically unstable or infectious, JSO officers are prohibited from transporting the person themselves.

Juveniles receive additional protection. An injured, intoxicated, or seriously ill juvenile must receive medical clearance before being taken to the Pretrial Detention Facility.

The juvenile-arrest provisions also prohibit detention merely for convenience.

A juvenile cannot be taken into detention simply because a parent wants to avoid responsibility, because detention would make the juvenile easier for police to interview, because officers want additional time to investigate, or because the most appropriate facility is unavailable.

The holding-room provisions also contain documentation requirements.

Officers must search the detainee, inventory property, inspect the holding room, provide access to water and restroom breaks, document observation times, and record when the detainee enters and leaves the room.

The holding room itself must also be inspected annually, and affected personnel receive recurring training.

Finally, the probation-arrest procedure contains a useful verification rule.

Before making a warrantless arrest for violation of probation, the officer must confirm the person's probation status and applicable conditions through multiple sources. If the officer cannot confirm the conditions, the policy directs the officer not to make the warrantless arrest.

One of the most significant weaknesses involves arrests of people who also qualify for an involuntary examination under the Baker Act.

Order 201 states that when an arrestee qualifies for involuntary admission under the Baker Act, the person shall be transported to the Pretrial Detention Facility or to UF Health Jacksonville when medical treatment is needed.

Florida law distinguishes between different situations.

Under Florida Statute § 394.462, when law enforcement has custody of a person because of noncriminal or minor criminal behavior and the person meets the criteria for involuntary examination, the officer must transport the person to the appropriate facility within the designated receiving system.

A different procedure applies when the person is arrested for a felony. In that situation, the person is processed through the criminal system and the receiving system is notified so that examination and treatment can be arranged.

Order 201 does not make this distinction.

Instead, the policy appears to direct an arrestee who qualifies for the Baker Act to the jail unless medical treatment is independently required.

The Duval County Clerk identifies several designated Baker Act receiving facilities. The Pretrial Detention Facility is not included in that list.

Based on Order 201 alone, the written procedure appears difficult to reconcile with the transportation requirement contained in § 394.462 for people whose custody results from minor criminal behavior.

The second major weakness involves warrantless arrests inside residences.

Order 201 generally requires a warrant before officers enter a residence to make an arrest. The policy then identifies several exceptions.

Many of those exceptions are consistent with recognized Fourth Amendment rules. Examples include immediate danger, prevention of escape, destruction of evidence, fresh pursuit, lawful consent, and probable cause that develops after officers have already entered the residence legally.

One exception is broader.

The policy permits an arrest without an arrest warrant when a violation is taking place inside the residence and the arrest is necessary to prevent the violation from continuing.

The Eleventh Circuit has stated that probable cause alone does not authorize a warrantless arrest inside a home. Officers must also have consent or an exigent circumstance.

The Supreme Court has also rejected the idea that every misdemeanor pursuit automatically creates an exigent circumstance. Instead, officers must consider whether the particular situation involves an immediate danger, likely destruction of evidence, escape, or another circumstance that makes obtaining a warrant impractical.

A violation can continue without creating an emergency.

Therefore, the phrase "necessary to prevent a continued violation" is broader than the constitutional exigent-circumstances rule if it is interpreted literally.

The policy should require a recognized exigent circumstance rather than treating the continued existence of an offense as a separate basis for warrantless entry.

The section concerning members of Congress also appears to describe the law incompletely.

Order 201 states that U.S. senators and representatives are privileged from arrest while attending or traveling to and from congressional sessions unless they commit a felony, including treason, or a breach of peace.

The Constitution uses the phrase "Treason, Felony and Breach of the Peace." However, the Supreme Court has interpreted "breach of the peace" in this provision broadly enough to include criminal offenses generally. The privilege primarily protects members of Congress from forms of civil arrest and does not create a general immunity from misdemeanor criminal arrest.

Because the phrase "breach of peace" has a narrower ordinary meaning today, the wording in Order 201 could cause an officer to believe that a member of Congress is exempt from arrest for a nonviolent misdemeanor.

The policy should explain the modern legal meaning instead of repeating the constitutional phrase without explanation.

The diplomatic-immunity section contains a similar problem.

Order 201 correctly recognizes that different diplomats and consular personnel have different levels of immunity.

However, it later states broadly that foreign personnel with State Department identification cards cannot be arrested for criminal traffic violations and are not required to pay fines associated with traffic citations.

Immunity depends on the person's exact status.

Some diplomatic personnel have complete criminal immunity. Other embassy and consular employees have immunity only for official acts or have more limited protections.

The U.S. Department of State therefore instructs law enforcement to determine the person's exact immunity status rather than treating all foreign personnel alike.

The statement concerning traffic fines is also problematic.

State Department guidance explains that diplomatic and consular personnel may receive traffic citations and are expected to resolve them. The Department does not describe mission personnel as generally exempt from paying traffic fines.

Another concern involves temporary detention of people identified as suicidal or a danger to themselves.

Order 201 requires officers to observe detainees in the holding room at least once every 15 minutes.

The same minimum interval applies to detainees identified as suicidal or a danger to themselves.

The Florida Model Jail Standards distinguish between periodic documentation and continuous observation. Under those standards, direct observation means continuous observation, while physical observations are documented at intervals not exceeding 15 minutes.

The Eleventh Circuit has also examined this distinction in litigation involving jail suicide. In Rogers v. Sheriff of Santa Rosa County, the underlying suicide policy required continuous visual observation along with documented 15-minute checks.

The JSO stadium holding room may not be governed by every provision of the Florida Model Jail Standards.

Therefore, Order 201 alone does not establish a violation of those standards.

However, the policy provides little difference between the observation required for an ordinary detainee and the observation required for a person already identified as suicidal.

The Notice to Appear criteria also deserve additional analysis.

JSO excludes some people from NTA eligibility based on Florida residency, an arrest during the previous six months, a failure to appear during the previous 12 months, and several categories of offenses.

One criterion is particularly important for accountability review.

A person who was arrested during the previous six months is ineligible even if the earlier arrest did not result in a conviction.

An arrest and a conviction are different events.

Therefore, this rule may cause a person whose earlier case was dismissed or never prosecuted to receive a physical arrest when another similarly situated person receives a Notice to Appear.

That does not establish that the rule is unlawful.

It does mean that the effect of the rule should be measured.

The Baker Act section should be rewritten to follow the distinctions contained in Florida Statute § 394.462.

When a person is in custody because of noncriminal or minor criminal behavior and meets the criteria for involuntary examination, the policy should direct the officer to the appropriate designated receiving facility.

When the person has been arrested for a felony, the policy should separately explain the criminal-processing and mental-health procedures that apply.

The residence section should also be revised.

The exception for a continuing violation should require the officer to identify a recognized exigent circumstance.

For example, warrantless entry could remain available when immediate action is required to prevent serious injury, escape, destruction of evidence where legally sufficient, or another emergency recognized by law.

A continuing violation by itself should not be enough.

The congressional-immunity section could be corrected by stating that members of Congress do not have a general immunity from criminal arrest.

If JSO retains the constitutional phrase "Treason, Felony and Breach of the Peace," the policy should explain that courts have interpreted that language to encompass criminal offenses generally.

The diplomatic-immunity section could use the same approach.

Instead of giving officers a broad rule based on possession of a State Department identification card, the policy could require the officer to determine the person's exact immunity classification and consult State Department guidance when necessary.

The statement that foreign personnel are not required to pay traffic fines should also be removed or replaced with current State Department guidance.

The holding-room procedure should distinguish an ordinary detainee from a person presenting an active suicide or serious self-harm risk.

A person identified as actively suicidal could be placed under continuous direct visual observation until custody is transferred to medical, mental-health, or correctional personnel who can provide the appropriate level of monitoring.

The Notice to Appear procedure could also be reviewed using arrest outcomes rather than treating a prior arrest as equivalent to a prior conviction.

JSO could compare whether a recent arrest resulted in prosecution, dismissal, acquittal, diversion, or conviction and determine whether the current six-month disqualification is producing outcomes consistent with the purpose of the NTA system.

JSO could also review NTA decisions using arrest data.

The review could compare physical arrests and Notices to Appear by charge, officer, supervisor, district, age, race, sex, residency, recent arrest history, and eventual case disposition.

A difference would not establish improper conduct by itself.

The comparison would identify whether similar cases are being handled differently and whether particular eligibility rules are producing unexpected results.

When an officer physically arrests a person who otherwise qualifies for an NTA, the report could also require the officer to document the specific reason for the exception rather than only recording that supervisory approval was obtained.

Finally, JSO could periodically review arrest reports in which officers entered a residence without a warrant.

The review could record the legal basis for entry, the offense involved, whether consent was obtained, what exigent circumstance was claimed, and whether evidence or charges later survived judicial review.

This would give JSO a way to determine whether the exceptions described in Order 201 are being used as intended.

Order 201 contains a substantial amount of procedural detail.

The policy defines the legal standards for arrest, provides alternatives to physical arrest, requires supervisory review of Arrest & Booking Reports, validates warrants, provides medical safeguards, and creates additional procedures for juveniles and other specialized situations.

Many of these requirements reduce the amount of discretion available to a single arresting officer.

The larger concerns appear in the portions of the policy where JSO attempts to summarize complicated areas of constitutional or statutory law.

The Baker Act section is one example.

Florida law treats a person arrested for a felony differently from a person whose custody results from minor criminal behavior.

Order 201 does not clearly preserve that distinction.

Because the destination can determine whether the person enters a jail or a mental-health receiving system, the difference is important.

The residence section creates a similar problem.

Most of the exceptions to the warrant requirement identify circumstances that correspond to established Fourth Amendment rules.

However, the continued-violation exception does not expressly require an exigent circumstance.

An officer following the language literally could therefore understand the policy to authorize entry in circumstances where the Constitution may still require a warrant.

The congressional and diplomatic-immunity provisions create a different type of risk.

In both places, the policy reduces a complicated body of law to a short rule.

When the summary is inaccurate or incomplete, an officer may either exercise authority that does not exist or fail to exercise authority that does exist.

The temporary-holding section also shows why the exact wording of a policy matters.

Order 201 requires periodic observation of detainees and documents those observations.

That is useful for ordinary temporary detention.

However, a person who has already been identified as suicidal presents a different risk. A 15-minute observation requirement does not necessarily provide the same protection as continuous observation.

The Notice to Appear procedure raises a broader accountability question.

Order 201 creates records showing when an officer chooses physical arrest instead of field release and requires supervisory approval in some of those cases. Those records could be used to determine whether the discretion is being applied consistently.

Therefore, Order 201 should not be evaluated only by asking whether it contains procedures.

It contains many procedures.

The more important question is whether those procedures accurately describe the legal standard in situations where an officer's decision can immediately affect a person's liberty, medical placement, or constitutional rights.