in the circuit court of the 17th judicial circuit in and ... › 1c › 15 ›...

1 DIRUZZO & COMPANY

401 EAST LAS OLAS BLVD., SUITE 1400, FT. LAUDERDALE, FL 33301 • T: 954.615.1676 • F: 954.827.0340 • WWW.DIRUZZOLAW.COM

IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

____________________________________x SCOT PETERSON, : Petitioner/Plaintiff, : Case No. _________________ : v. : : MARJORIE STONEMAN DOUGLAS : HIGH SCHOOL PUBLIC SAFETY : COMMISSION, BOB GUALTIERI, and : RICHARD L. SWEARINGEN, : Respondents/Defendants. : ____________________________________x

PETITION TO QUASH & COMPLAINT

Joseph A. DiRuzzo, III Fla. Bar No. 0619175 DIRUZZO & COMPANY 401 East Las Olas Blvd., Suite 1400 Ft. Lauderdale, FL 33301 954.615.1676 (o) 954.827.0340 (f) [email protected] Attorney for Scot Peterson Dated: Nov. 15, 2018

Filing # 80833196 E-Filed 11/15/2018 10:26:40 AM

http://www.diruzzolaw.com/

mailto:[email protected]

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Petitioner/Plaintiff, SCOT PETERSON by and through undersigned counsel, hereby files

suit against the Respondent/Defendant MARJORIE STONEMAN DOUGLAS HIGH SCHOOL

PUBLIC SAFETY COMMISSION (the “COMMISSION”), and Defendants BOB GUALTIERI,

and RICHARD L. SWEARINGEN (collectively “Defendants”).

In support thereof, PETERSON alleges as follows:

PRELIMINARY STATEMENT

1. This is a civil action brought by PETERSON asking this Court to: (a) quash the subpoena

issued by COMMISSION (Count I), (b) declare the COMMISSION’s actions are in violation of

Florida Statutes and unconstitutional (as applied), and enjoin such illegal/unconstitutional acts

(Count II), and (c) enter a judgment for damages against the Defendants for abuse of process (Count

III).

JURISDICTION, VENUE & STANDING

2. This action is to quash a subpoena issued by the COMMISSION, to have this Court declare

that COMMISSION’s actions are in violation of Florida Statutes and enjoin such illegal acts, declare

the COMMISSION’s actions are unconstitutional (as applied) and enjoin such unconstitutional

acts, and enter a judgment for damages against GUALTIERI and SWEARINGEN for abuse of

process.

3. This Court has personal jurisdiction, subject matter jurisdiction, and amount in controversy

is satisfied pursuant to Fla. Stat. §§ 26.012 and 48.193.

4. Venue in the present action is proper in the 17th Judicial Circuit as the subpoena requires

PETERSON’s attendance in Broward County, and the COMMISSION’s focus is to investigate the

failure at Marjory Stoneman Douglas High School shooting.


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5. This Court has jurisdiction to issue a declaratory judgment pursuant to Fla. Stat. § 86.011.

6. PETERSON has standing to seek a declaratory judgment from this Court pursuant to Fla.

Stat. § 86.021.

PARTIES

7. Plaintiff, SCOT PETERSON is an individual who was formerly employed by the Broward

Sheriff’s Office (“BSO”) and was the School Resource Officer (“SRO”)1 at Marjory Stoneman

Douglas High School on February 14, 2018 and is otherwise sui juris.

8. Defendant MARJORIE STONEMAN DOUGLAS HIGH SCHOOL PUBLIC SAFETY

COMMISSION is an entity formed under color of the law of the State of Florida (Fla. Stat. §

943.687), which committed the acts giving rise to the instant complaint in Broward County, and is

otherwise sui juris.

9. Defendant BOB GUALTIERI is the chair of the COMMISSION, regularly conducts

business as the chair of the COMMISSION in Broward County, who committed the acts giving rise

to the instant complaint in Broward County, and is otherwise sui juris.

10. Defendant RICHARD L. SWEARINGEN is the commissioner of the Florida Department

of Law Enforcement (“FDLE”) and, by virtue of his position as the commissioner of FDLE, is

statutorily appointed to serve as a member of the COMMISSION. See Fla. Stat. § 943.687(2)(a). In

his role as a member of the COMMISSION, SWEARINGEN regularly conducts business in

Broward County, committed the acts giving rise to the instant complaint in Broward County, and

is otherwise sui juris.

1 PETERSON was named the SRO of the year in 2014 for Parkland, Florida, and Employee of the Month in Parkland in May 2012, September 2013, and May 2016.


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FACTS COMMON TO ALL COUNTS

A. February 14, 2018

11. On February 14, 2018, Nikolas Cruz entered Marjory Stoneman Douglas High School and

killed 17 victims and injured 17; Cruz was subsequently indicted for first degree murder.

12. PETERSON was the SRO assigned to Marjory Stoneman Douglas High School.

13. PETERSON’S actions on February 14, 2018 were consistent with the training he had

received for the past 30 years. PETERSON assessed the situation and acted accordingly to the real

time intelligence he assessed on the scene.

14. PETERSON’S actions on February 14, 2018 were completely consistent with the Broward

Sheriff’s Office (“BSO”) Department of Law Enforcement Standard Operating Procedures 4.37.2

Active Shooter policy regarding Response/Responsibilities. Attached as Exhibit 1 is a true and

correct copy of the BSO Standard Operating Procedures.

15. PETERSON was the initial “Incident Commander” on the scene. PETERSON was

responsible not only for coordinating the initial BSO response, but to place Marjory Stoneman

Douglas High School in a Code Red Lockdown to safeguard the 3,200 students and staff.

16. During the entire incident, PETERSON was not given any information whatsoever by BSO

communications2 regarding the location or description of the shooter(s) (subsequently identified as

2 Subsequent to the events of February 14th, information was released identifying systematic problems with BSO communications, to wit: all the 911 calls were being routed to Coral Springs instead of BSO and BSO radio communication failed because the system was unable to handle the high level of traffic (upon information and belief this system failure was known by BSO as the same problem that occurred during the Fort Lauderdale-Hollywood International airport shooting).


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Nikolas Cruz) or that there were any victim(s) inside the 1200 building on the Marjory Stoneman

Douglas High School campus.

17. PETERSON remained the Incident Commander during the events of February 14th. BSO

Parkland Command Staff (sergeant, lieutenant, captain) never relieved PETERSON of his

responsibility (transfer of command) as the Incident Commander on February 14th.

18. PETERSON initiated exterior perimeters to safeguard the public from entering the Marjory

Stoneman Douglas High School campus where an unknown active shooter(s) was in progress.

PETERSON’S actions were consistent with BSO Standard Operating Procedure 4.37.2(H)(4) -

“[c]oordinate the inner and outer perimeters.” Exhibit 1 at p. 3. This action is delegated (per BSO

Standard Operating Procedures 4.37.2(H)) to the Patrol Sergeant; on February 14th, PETERSON

had to immediately take action because no Command Staff (i.e., superior officer, to wit: sergeant,

lieutenant, captain) took control/command of the scene.

19. PETERSON assessed the scene and immediately (over the school radio) repeatedly ordered

the 45-acre Marjory Stoneman Douglas High School into a “Code Red lockdown” to safeguard over

3,200 students and staff.

20. PETERSON communicated (via the school radio) with the Marjory Stoneman Douglas High

School administration (Asst. Principal Morford) to obtain a description and direction of travel of

the shooter. PETERSON’S action was instrumental in the quick apprehension of Cruz.

21. PETERSON observed a Coral Springs tactical team approach the east side of the 1200

building. PETERSON immediately approached the team and identified himself as the SRO.

PETERSON provided classroom keys to the Coral Springs tactical team and immediately


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communicated via the school radio to ascertain a description and location of the shooter(s) for first

responders.3

22. PETERSON was successful in obtaining critical information regarding the identity and

direction of travel of the shooter (Cruz). PETERSON had to “yell out” the description and direction

of travel of the shooter (Cruz) to other first responders in the vicinity due to BSO radio “throttling”

failures which prevented transmitting over the BSO radios.

23. PETERSON was approached by BSO SWAT and escorted to the BSO SWAT command

post in the 1300 building. PETERSON was tasked with providing hand drawings of the school

campus to aid in the evacuation of the school campus.

24. On February 16, 2018, PETERSON gave a sworn statement to BSO Homicide regarding the

above stated actions. PETERSON stated his actions, as well as his assessment of the scene that he

thought the shots occurred outside.

B. Governor Scott Calls for a Criminal Investigation

25. Upon information and belief,4 Governor Rick Scott directed FDLE to commence a criminal

investigation into law enforcement’s response to the Marjory Stoneman Douglas shooting.

26. Indeed, it has been reported by the South Florida Sun Sentinel that FDLE’s investigation is

criminal in nature. See http://www.sun-sentinel.com/local/broward/parkland/florida-school-

shooting/fl-school-shooting-police-response-investigation-20180921-story.html (last accessed Oct. 5,

2018).

3 BSO Homicide Detective Zach Scott’s testimony to the COMMISSION on September 5, 2018 that PETERSON remained at the 700 building during the entire incident is entirely false. 4 See http://www.tampabay.com/florida-politics/buzz/2018/02/25/rick-scott-calls-for-fdle-investigation-into-actions-of-broward-county-sheriff/ (last accessed Oct. 5, 2018).


http://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-school-shooting-police-response-investigation-20180921-story.html


http://www.tampabay.com/florida-politics/buzz/2018/02/25/rick-scott-calls-for-fdle-investigation-into-actions-of-broward-county-sheriff/

http://www.tampabay.com/florida-politics/buzz/2018/02/25/rick-scott-calls-for-fdle-investigation-into-actions-of-broward-county-sheriff/

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27. The Sun Sentinel reported that “The FDLE’s communications director, Gretl Plessinger,

said the agency is investigating ‘if there was anything illegal done by the law enforcement officers

who responded to the scene that day.’” Id. But the “target” of the investigation would not be

identified by FDLE. Id.

28. The Sun Sentinel has also reported that “The FDLE would not reveal what potential laws

PETERSON or any other officers may have broken that day, saying it will be up to the Broward State

Attorney’s Office to decide. The State Attorney’s Office declined to clarify the matter. ‘We do not

know what the potential charges could be until the evidence is presented,’ said Constance Simmons,

spokeswoman for the state attorney.” http://www.sun-

sentinel.com/local/broward/parkland/florida-school-shooting/fl-school-shooting-police-response-

investigation-20180921-story.html (last accessed Oct. 5, 2018).

29. In contrast to criminal investigations undertaken by FDLE, when State Attorneys issue

subpoenas pursuant to Fla. Stat. § 27.04, the respondent to such a subpoena is, pursuant to Fla.

Stat. § 914.04, provided with criminal use immunity.

C. The Establishment of the COMMISSION, Statutory Purpose, & Subpoena Power

30. The Commission was established by SB 7026, the Marjory Stoneman Douglas High School

Public Safety Act, signed into law by Governor Scott.

31. Upon information and belief,5 the COMMISSION’s members include (in addition to

SWEARINGEN and GUALTIERI) numerous law enforcement and prosecutorial personnel, to wit:

5 See https://www.flgov.com/2018/03/20/gov-scott-senate-president-negron-and-house-speaker-corcoran-announce-appointments-to-the-marjory-stoneman-douglas-high-school-public-safety-commission/ (last accessed Oct. 4, 2018)





https://www.flgov.com/2018/03/20/gov-scott-senate-president-negron-and-house-speaker-corcoran-announce-appointments-to-the-marjory-stoneman-douglas-high-school-public-safety-commission/



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Larry Ashley (the Okaloosa County Sheriff), Kevin Lystad (Chief of the Miami Shores Police

Department), James Harpring (the undersheriff for Indian River County), Grady Judd (Sheriff of

Polk County) Chief Asst. State Attorney Bruce Bartlett (Pinellas County State Attorney’s Office),

Chris Nelson (Chief of Police for the City of Auburndale).

32. The statutory authorization for the creation of the COMMISSION is found at Fla. Stat. §

943.687.

33. The statutory purpose of the COMMISSION is to:

(3) The commission shall investigate system failures in the Marjory Stoneman Douglas High School shooting and prior mass violence incidents in this state and develop recommendations for system improvements. At a minimum, the commission shall analyze information and evidence from the Marjory Stoneman Douglas High School shooting and other mass violence incidents in this state. At a minimum, the commission shall:

(a) Develop a timeline of the incident, incident response, and all relevant events preceding the incident, with particular attention to all perpetrator contacts with local, state, and national government agencies and entities and any contract providers of such agencies and entities.

(b) Investigate any failures in incident responses by local law enforcement agencies and school resource officers.

1. Identify existing policies and procedures for active assailant incidents on school premises and evaluate the compliance with such policies and procedures in the execution of incident responses.

2. Evaluate existing policies and procedures for active assailant incidents on school premises in comparison with national best practices.

3. Evaluate the extent to which any failures in policy, procedure, or execution contributed to an inability to prevent deaths and injuries.

4. Make specific recommendations for improving law enforcement and school resource officer incident response in the future.

5. Make specific recommendations for determining the appropriate ratio of school resource officers per school by school type. At a minimum, the methodology for determining the ratio should include the school location, student population, and school design. (c) Investigate any failures in interactions with perpetrators preceding mass

violence incidents. 1. Identify the history of interactions between perpetrators and

governmental entities such as schools, law enforcement agencies, courts, and


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social service agencies, and identify any failures to adequately communicate or coordinate regarding indicators of risk or possible threats.

2. Evaluate the extent to which any such failures contributed to an inability to prevent deaths and injuries.

3. Make specific recommendations for improving communication and coordination among entities with knowledge of indicators of risk or possible threats of mass violence in the future.

4. Identify available state and local tools and resources for enhancing communication and coordination regarding indicators of risk or possible threats, including, but not limited to, the Department of Law Enforcement Fusion Center or Judicial Inquiry System, and make specific recommendations for using such tools and resources more effectively in the future.

Fla. Stat. § 943.687(3)(a)-(c). 34. The COMMISSION’s delineated purposes, as set forth in Section 943.687(c), do not include

criminal investigation(s) and/or prosecution(s).

35. However, the COMMISSION has the statutory power to investigate, Fla. Stat. § 943.687(4),

but in doing so the COMMISSION must rely on SWEARINGEN in his role as the commissioner

of FDLE to issue subpoenas, Fla. Stat. § 943.687(5).

36. Fla. Stat. § 943.687(5) does not give the COMMISSION independent subpoena power,

instead its subpoena power “piggy-backs” off of FDLE’s subpoena power. See id. (“[t]he

Commissioner of the Department of Law Enforcement shall use his or her subpoena power to compel

the attendance of witnesses to testify before the commission.”) (emphasis added).

C. The COMMISSION issues PETERSON a Subpoena for its de facto criminal investigation 37. The COMMISSION issued a subpoena to PETERSON to testify on October 10, 2018, at

8:30 a.m. A true and correct copy of the COMMISSION’s subpoena is attached hereto as Exhibit

2.


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38. The subpoena was signed by SWEARINGEN, in his capacity as the commissioner of FDLE.

Exhibit 2.

39. As a result of the damage that Hurricane Michael inflicted on parts of Florida, the

COMMISSION’s October 10th hearing was cancelled.

40. On October 30, 2018, The COMMISSION issued a subpoena to PETERSON to testify on

November 15, 2018, at 2:00 p.m. A true and correct copy of the COMMISSION’s subpoena is

attached hereto as Exhibit 3.

41. GUALTIERI has been quoted as telling “the Sun Sentinel that the criminal investigation

‘involves the response and PETERSON and a number of things.’” See http://www.sun-



42. Indeed, “[t]he Sun Sentinel requested transcripts or summaries of interviews of

COMMISSION witnesses, but the FDLE said the records are protected from public view because

they relate to the criminal prosecution of the shooter, Nikolas Cruz, as well as the criminal

investigation into law enforcement’s response.” http://www.sun-



43. Importantly, “the COMMISSION is sharing information with the FDLE’s Office of

Executive Investigations.” Id. The FDLE’s Office of Executive Investigations “takes orders from the

governor and ‘conducts complex cases where public officials are suspected of criminal activity[.]’” Id.










D. PETERSON is Forced to Hire Counsel to Address the COMMISSION’s Subpoena 44. PETERSON has been forced to hire the undersigned, a Florida Bar Board Certified

Specialist in Criminal Appellate law, with extensive experience in contesting the propriety of

subpoenas, to defend PETERSON against any spurious claims of criminal liability.

45. PETERSON has also engaged the undersigned to ensure that PETERSON’s pension is

protected. See http://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-

school-shooting-police-response-investigation-20180921-story.html (reporting that the on-going

criminal investigation could place PETERSON’s pension at risk)

46. PETERSON has been monetarily damaged in that he was forced to expend his funds to pay

for legal fees and will be forced to expend additional funds in respect to the operative subpoena

(Exhibit 3) and any attendant litigation thereto.

47. With PETERSON’s limited financial resources, given the litigation over the issuance of the

subpoena by the COMMISSION to PETERSON (including the instant litigation), any attendant

related litigation (e.g. a petition to enforce), and any related appellate litigation, PETERSON’s legal

fees will undoubtably exceed his disposable income.

48. PETERSON has been forced to establish a “gofundme” page to raise funds to pay for his

legal fees. See https://www.gofundme.com/33h7kw-legal-defense-fund&rcid=r01-154221909859-

38295fb91237419b&pc=ot_co_campmgmt_w. PETERSON does not anticipate that his gofundme

page will raise sufficient funds to cover his legal expenses, thus PETERSON will be responsible for

any legal fees not covered by generosity of those who have donated.




https://www.gofundme.com/33h7kw-legal-defense-fund&rcid=r01-154221909859-38295fb91237419b&pc=ot_co_campmgmt_w

https://www.gofundme.com/33h7kw-legal-defense-fund&rcid=r01-154221909859-38295fb91237419b&pc=ot_co_campmgmt_w



E. PETERSON’s Attempt to Amicably Resolve the COMMISSION’s Subpoena is Rebuffed 49. On October 5, 2018, PETERSON, through counsel, reached out to Jason L. Jones, General

Counsel to the FDLE and author of the cover letter accompanying the subpoena, via correspondence

inquiring as to the COMMISSION’s purported statutory authority to issue a subpoena. A true and

correct copy of the undersigned’s correspondence is attached hereto as Exhibit 4.

50. As Exhibit 4 shows, PETERSON was attempting to ascertain the source of FDLE’s subpoena

power as the COMMISSION’s purported subpoena power, Fla. Stat. § 943.687(5), is dependent on

FDLE’s independent subpoena power.

51. Exhibit 4 shows that PETERSON raised the issue as to whether any subpoena issued by the

COMMISSION may be ultra vires.

52. On the same day Mr. Jones responded to Exhibit 4 via written correspondence. A true and

correct copy of Mr. Jone’s correspondence is attached hereto as Exhibit 5.

53. As Exhibit 5 demonstrates, Mr. Jones fails to provide any citation to any provision in Chapter

943 of the Florida Statutes (or any Florida Statute for that matter) that authorizes the FDLE to issue

a subpoena. And for good reason – none exits.

54. Notwithstanding PETERSON’s good faith attempt to amicably address the deficiencies in

the subpoena, Mr. Jones threatens PETERSON with litigation in that if PETERSON “refuses to

abide by the lawfully issued subpoena, the [COMMISSION] will have no choice but to apply to the

circuit court for an order requiring [PETERSON] to appear before the [COMMISSION].” Exhibit

5 at ¶ 4.




COUNT I – PETITION TO QUASH (against the COMMISSION)

55. PETERSON re-alleges paragraphs 1-54, supra, and incorporates said paragraphs by reference

herein.

56. The operative subpoena (Exhibit 3) issued by the COMMISSION to PETERSON does not

reasonably relate to an investigation within the COMMISSION’s purview as the COMMISSION

has no authority to conduct a criminal investigation. See Fla. Stat. § 943.687(3)(a)-(c) (listing the

COMMISSION’s statutory purpose).

57. The proper administrative procedures have not been followed as (a) the COMMISSION’s

subpoena power cannot be used for a criminal investigation, (b) Fla. Stat. § 943.687(5) is not an

independent font of authority, and (c) FDLE lacks independent subpoena power in this context.

58. The subpoena demands information/testimony for an illegitimate and/or improper purpose

as it is (a) improper to use a civil investigatory body to conduct a de facto and/or sub rosa criminal

investigation, (b) improper for the COMMISSION and its commissioners (including but not limited

to GUALTIERI, and SWEARINGEN) to investigate and subsequently provide

information/evidence to aid/assist in FDLE’s criminal investigation, (c) improper to use a civil

investigatory body to issue a subpoena to do an end-run around the criminal immunity requirement

found at Fla. Stat. § 914.04, and (d) improper as the COMMISSION’s actions in issuing a civil

subpoena to PETERSON to conduct an ultra vires criminal investigation and/or aid in FDLE’s

criminal investigation, have been (and continue to be) done in bad faith, violating PETERSON’s

right to due process (under both the Federal and Florida constitutions).




WHEREFORE, PETERSON prays that this Court quash the subpoena issued by the

COMMISSION to PETERSON, and provide for any other relief that this Court deems just and

necessary under the circumstances.

COUNT II – DECLARATORY JUDGMENT (against all Defendants)


herein.

60. PETERSON invokes Fla. Stat. §§ 86.011 and 86.021 to have this Court declare that

pursuant to Fla. Stat. § 943.687(3)(a)-(c) the COMMISSION cannot conduct a de jure, de facto, or

sub rosa criminal investigation.

61. PETERSON invokes Fla. Stat. §§ 86.011 and 86.021 to have this Court declare that it is

improper to use a civil investigatory body, i.e., the COMMISSION, to conduct a criminal

investigation


improper for the COMMISSION and its commissioners (including but not limited to GUALTIERI,

and SWEARINGEN) to investigate and subsequently provide information/evidence to aid/assist in

FDLE’s criminal investigation.


improper for the COMMISSION and its commissioners (including but not limited to GUALTIERI,

and SWEARINGEN) to use a civil investigatory body, i.e., the COMMISSION to issue a subpoena

to do an end-run around Fla. Stat. § 914.04 criminal use immunity requirement.




64. PETERSON invokes Fla. Stat. §§ 86.011 and 86.021 to have this Court declare that the

COMMISSION and its commissioners (including but not limited to GUALTIERI, and

SWEARINGEN) violate PETERSON’s right to due process under the 14th Amendment to the U.S.

Constitution when the COMMISSION issues a civil subpoena to conduct an ultra vires criminal

investigation and/or aid in FDLE’s criminal investigation.


COMMISSION and its commissioners (including but not limited to GUALTIERI, and

SWEARINGEN) violate PETERSON’s right to due process under the Article I, Section 9 of the

Florida Constitution when the COMMISSION issues a civil subpoena to conduct an ultra vires

criminal investigation and/or aid in FDLE’s criminal investigation.


COMMISSION’s, GUALTIERI’s, and SWEARINGEN’s actions (individually and collectively) are

unconstitutional under the Federal and/or Florida constitutions, as applied to the facts of this case.

67. As detailed above, there is a bona fide, actual, present and practical need for the declaration

as to the power of the COMMISSION to issue and enforce the subpoena (Exhibit 3) and

PETERSON’s duty to comply with the subpoena.

68. As detailed above, the power of the COMMISSION to issue and enforce the subpoena, is

dependent upon the facts or the law applicable to the facts.

69. As detailed above, PETERSON’s request for a declaration deals with a present, ascertained

or ascertainable state of facts and is judiciable controversy.

WHEREFORE, PETERSON prays that this Court enter a declaratory judgment against the

Defendants for the relief requested in paragraphs 59-69, supra, and, pursuant to Fla. Stat. §




86.011(2), provide PETERSON with additional/alternative/supplemental relief by ENJOINING

the Defendants from issuing additional illegal/ultra vires/unconstitutional subpoena(s) directed at

PETERSON. PETERSON also prays for the Court to provide for any other relief that it deems just

and necessary under the circumstance.

COUNT III – ABUSE OF PROCESS (against GUALTIERI and SWEARINGEN)


herein.

71. GUALTIERI and SWEARINGEN knew (or reasonably should have known given their

respective extensive backgrounds in law enforcement) that the issuance of the subpoena (Exhibit 3)

to PETERSON from a civil investigatory body, i.e., the COMMISSION, was illegal, improper,

and/or a perverted use of process.

72. SWEARINGEN knew (or reasonably should have known given his official position as the

commissioner of FDLE, which has in-house legal staff) that the issuance of the subpoena (Exhibit 3)

from the COMMISSION, which is based on FDLE’s purported subpoena power, to PETERSON

was illegal, improper, and/or a perverted use of process as FDLE has no independent subpoena

power under Chapter 943 of the Florida Statutes (or any Florida Statute for that matter).

73. As detailed above, GUALTIERI and SWEARINGEN (individually and/or collectively) had

ulterior motives (i.e., conducting an improper de facto and/or sub rosa criminal investigation) or

purposes in exercising such illegal, improper, or perverted use of process by issuing the subpoena

(Exhibit 3) to PETERSON to require his testimony before the COMMISSION.




74. As a result of the acts of GUALTIERI and SWEARINGEN (individually and/or collectively),

PETERSON has suffered damages in the form of legal fees, PETERSON continues to incur legal

fees, and PETERSON reasonably expects to incur additional legal fees in the future.

WHEREFORE, PETERSON prays that this Court enter judgement against GUALTIERI

and SWEARINGEN (a) for a sum to be determined at trial for damages, (b) for interest thereon at

the legal rate, (c) for punitive damages according to proof, (d) for reasonable attorneys’ fees and costs

incurred herein, and (e) for such other and further relief as the Court may deem just and proper.

Respectfully submitted, _______________________ Joseph A. DiRuzzo, III Fla. Bar No. 0619175 DIRUZZO & COMPANY 401 East Las Olas Blvd., Suite 1400 Ft. Lauderdale, FL 33301 954.615.1676 (o) 954.827.0340 (f) [email protected] Attorney for Scot Peterson Dated: Nov. 15, 2018


mailto:[email protected]

EXHIBIT 1

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

Oct. 5, 2018 Via Email Only: [email protected] Jason L. Jones, Esq. Florida Department of Law Enforcement PO Box 1489 Tallahassee, FL 32302

Re: Scot Peterson Subpoena Dear Mr. Jones: In my review of the subpoena issued by the Marjory Stoneman Douglas High School Public Safety Commission calling for my client’s testimony on October 10, 2018, it appears that the purported statutory authority for the issuance of the subpoena is Fla. Stat. § 943.687(5). Section 943.687(5) provides, in relevant part:

The Commissioner of the Department of Law Enforcement shall use his or her subpoena power to compel the attendance of witnesses to testify before the commission. The Commissioner of the Department of Law Enforcement shall use his or her subpoena power to compel the production of any books, papers, records, documentary evidence, and other items, including confidential information, relevant to the performance of the duties of the commission or to the exercise of its powers.

As you can see, the Commission’s subpoena power piggy-backs off of the FDLE’s subpoena power, but fails to cross-reference where in Chapter 943, Florida Statutes, FDLE’s subpoena power is found. I have been unable to find where in Chapter 943 the Florida Legislature provided the FDLE with subpoena power. It appears to me that if FDLE lacks the independent statutory authority to issue a subpoena the Commission’s subpoena issued to my client would be ultra vires. Please provide to me the statutory citation to FDLE’s subpoena power for my review and consideration. I thank you in advance for your attention to this matter. Kind Regards, Joseph A. DiRuzzo, III JAD/

/s/ Joseph A. DiRuzzo, III Digitally signed by /s/ Joseph A. DiRuzzo, III Date: 2018.10.05 10:51:15 -04'00'

EXHIBIT 5

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