A federal judge has dismissed claims against the apartment complex where Airman Roger Fortson was shot and killed, ruling that the facility and its employee were protected under Florida’s qualified privilege for reporting suspected criminal activity to law enforcement.
- U.S. District Judge T. Kent Wetherell II granted Chez Elan FL Property LLC’s motion to dismiss on Monday, finding that the negligence and gross negligence claims against the apartment complex did not meet the legal standard required to overcome reporting protections.
The ruling eliminates two of the five counts in the federal civil rights lawsuit filed by Fortson’s family in May. The lawsuit continues against Okaloosa County Sheriff Eric Aden and former Deputy Eddie Duran, who is charged with shooting and killing Fortson at his apartment on May 3, 2024.
According to the court order, a leasing agent identified as “Jane Doe” received a call from a tenant reporting a domestic disturbance that had been “going on for like thirty minutes” and “sounds like it’s getting a little handsy.” The agent then called the sheriff’s office non-emergency line to report the information she received.
- Judge Wetherell found that the leasing agent “did not embellish the report or suggest that she had first-hand knowledge of what was going on in Mr. Fortson’s apartment; she simply reported what she had been told,” according to the court order.
The judge wrote that Florida law provides “a qualified privilege for reporting suspected criminal activity to law enforcement” that encourages citizens “to report crimes without fear of liability for doing so if it turns out that the information they reported was inaccurate.”
In his order, Judge Wetherell stated that “the claims against Chez Elan are borderline frivolous because the complaint and its attachments establish that Ms. Doe did precisely what any concerned citizen should do under these circumstances: she called law enforcement, provided the information she had, and then let law enforcement investigate.”
The judge expressed concern about the broader implications of allowing such claims to proceed, writing that including the apartment complex in the lawsuit “contravenes the public policy underlying the reporting privilege and sends the wrong message to the public.”
- “It also undermines public safety because if ‘see something, say something’ becomes ‘see something, say something, get sued,’ concerned citizens will be discouraged from reporting potential criminal activity or public safety issues to law enforcement,” Judge Wetherell wrote in the order.
The court found that the conduct described in the lawsuit did not rise to the level of “punitive conduct” required under Florida law to overcome the qualified reporting privilege. Such conduct must demonstrate “reckless, culpable conduct to the level of punitive damages” and be “of a gross and flagrant character, evincing reckless disregard of human life,” according to the order.
The dismissal was granted with prejudice, meaning the family cannot refile these specific claims against the apartment complex.
- The remaining federal claims against Sheriff Aden and former Deputy Duran include allegations of excessive force, municipal liability under federal civil rights law, and wrongful death under Florida state law.
Duran was terminated by the Sheriff’s Office following an internal investigation that found his use of deadly force was not objectively reasonable. He was subsequently charged with manslaughter with a firearm and could face up to 30 years in prison if convicted.
