Negligence, without consequence

Officer Jared Forsyth and his mother, Amy Forsyth Juliano

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Posted February 22, 2023 | By Jennifer Hunt Murty
jennifer@ocalagazette.com

Jared Forsyth and his Ocala Police Department partner Matt Sams were cleaning their service weapons after firearms training at a range adjacent to Lowell Correctional Institution when the unthinkable occurred.

A fellow officer who was cleaning his weapon nearby squeezed the trigger, sending a live round ricocheting around the area. The single slug from the Glock .40 caliber handgun struck the cleaning station surface and rebounded off several other objects before finding a gap between the panels of Forsyth’s vest and severing an artery on his right side.

Sams held his 33-year-old partner’s hand while first responders raced to help. Forsyth was taken to Ocala Regional Medical Center, where he was pronounced dead.

Nearly eight years after the April 6, 2015, tragic event, Forsyth’s mother, Amy Forsyth Juliano, continues to mourn her only child, who was unmarried with no children at the time of his death. Her heartache has been compounded, however, by a legal system that not only failed to provide her with any meaningful compensation for her loss, it targeted her as well as her attorneys, one of whom was seen as a nemesis to the law firm representing Ocala.

A Shooting Review Board report in January 2016 found three range safety rules in OPD’s training policy were violated in the incident. It concluded that Forsyth’s death was preventable and that the violations “developed from a department-wide firearms training complacency and a training culture which lacked structure, control and accountability.’’

In March 2017, Forsyth’s divorced parents filed a lawsuit claiming gross negligence against the officer who fired the errant shot and the city of Ocala. A Marion County judge, however, dismissed the suit in July 2018, finding the city is immune under Florida’s sovereign immunity and worker’s compensation laws.

Since then, the case has gone through a legal wringer related to the city’s efforts to extract legal fees from the fallen officer’s mother in response to her filing suit for his estate.

On Nov. 11, 2022, the new judge on the case, Fifth Circuit Judge Gary Sanders, closed the book on the case, ruling against city attorney Pat Gilligan’s request to allow the city to pursue collections against the officer’s mother. This past month, after numerous inquiries from the “Gazette,” the new attorney for the city, William Sexton, told the “Gazette” the city has decided it would forego any further collection efforts against Juliano.

Just last week, pursuant to the Final Judgement, Juliano filed the estate’s inventory with the city and the court, reflecting Forsyth’s estate has no assets for the city to collect against.

As the legal aftershocks finally subside, transcripts of so-called shade meetings—government meetings that are exempt from Florida’s Sunshine Law—between Gilligan and the Ocala City Council have been released as a public record. There was only one meeting held on this case, and that transcript sheds light on the deliberations among city leaders over the way to protect Ocala in the wake of the officer’s death.

Attorney Bobi J. Frank who, along with attorney Jarrod King, represented Juliano in the lawsuit, did not mince words in expressing frustration over the resolution.

“When the city of Ocala chose to fight Amy’s quest for justice for the loss of her only child’s life, it eviscerated any hope that Amy has at healing, at finding peace,’’ she said. “This is the city’s legacy… choosing to be cruel and inhumane rather than honoring the life of the law enforcement officer who chose to serve and protect the same city that waged war against his heartbroken mother once his watch ended. Incomprehensible.”

Negligence was clear

In a letter dated Jan. 26, 2016, nine months after the incident but before the estate brought its lawsuit, then-OPD Chief Greg Graham wrote of the incident to Mayor Kent Guinn: “There are many violations of policy and safety protocols that led to this tragic accident. At any point in time during the chain of events on April 6, 2015 that led to the discharge of the firearm, one change or alteration of those events would have prevented this from occurring. It is abundantly clear that the death of Officer Jared Forsyth was preventable.”

In a transcript of a June 16, 2020, meeting, Gilligan told City Council members Jay Musleh, Ire Bethea, Justin Grabelle, Matthew Wardell and Brent Malever, and newly appointed City Manager Sandra Wilson, “The police department and the city were clearly, in my opinion, negligent in terms of the way they set up the training exercise, the way the people that monitored the training exercise did it.”

Gilligan further explained to the council members, “Officer Forsyth was killed in the line of duty, it was a compensable accident under the worker’s compensation laws. And so, in Florida, you do not have the right to bring a personal injury or a wrongful death lawsuit if you’ve been compensated under the worker’s comp system.”

Gilligan told the council that compensation from workers’ compensation was all the officer was due.

“By statute, you cannot sue your employer if you receive comp benefits, even if it’s a death comp benefit. You have to take the comp benefit. And from there on, the employer is immune and not required to pay another penny,” he said.

Gilligan acknowledged to the council that “it may not be right or fair” but that the approximately $180,000 under the workers’ compensation death schedule was “what the Florida Legislature had decided” and “that’s just the way it goes.”

“Had it been a personal injury or wrongful death case, I can guarantee you it would be worth a lot more,” he pointed out.

Gilligan, however, omitted one key point in that meeting. Under the law, the workers’ compensation death benefit is only available to the decedent’s dependents. This does not include the officer’s parents.

The city’s workers’ compensation policy only paid for the fallen officer’s medical and funeral expenses. There would be no death benefit.

Current councilmembers Bethea and Musleh did not respond to the “Gazette’s” specific inquiry about what they understood about a workers’ compensation death benefit being paid to the officer’s family. However, Wardell told the “Gazette” he thought that the workers’ compensation carrier for the city had paid a death benefit based on what Gilligan told the council.

As part of their compensation package, every city employee has a Life insurance and Accidental Death & Dismemberment policy. Juliano received a payment of $84,000 from the insurance company.

As for what Juliano received from the city of Ocala, spokesperson Ashley Dobbs said Forsyth’s mother was given his last paycheck, what he had accrued in his pension, and “$1,166.74 for a Dedicated Memorial Ceremony.”

Despite accepting full liability for the incident due to sovereign immunity, the city attorney maintained throughout the lawsuit the city of Ocala did not have to pay a penny in additional compensation.

Instead, the city paid approximately $200,000 in legal bills to defend against the lawsuit filed by Forsyth’s estate and when they prevailed, instituted post-judgment collection efforts against the officer’s mother individually when judgment was entered in 2022.

During the June 16, 2020, meeting, Musleh was in favor of pursuing attorney’s fees in the case.

“I’m sorry Jared’s mother is going to be responsible for part of it,’’ he said. “I feel horrible about that. You got bad counsel, and maybe she gets out of it because she wasn’t properly advised.”

Wardell said, “If I knew that the pursuing the 79- or whatever thousand it is would come straight from (Juliano’s attorney) Bobbi Frank, I would say no problem going for that, either. But I’m almost feeling, you know, uncomfortable in pursuing that.”

Legal hurdles, and exceptions, emerge

Jarrod King, one of the attorneys for the officer’s estate, acknowledged the case had a few obstacles.

“This case involved two separate immunities which under normal circumstances would have prevented suit against the city and the officer who made the accidental discharge,’’ he explained. “However, the first immunity, which states that a sovereign entity cannot be liable in excess of $200,000 and their employee cannot be sued at all, has an exception which we strongly believe was met because case law supported that the employee acted with willful and wanton disregard or with gross negligence.

“The second immunity is a little better known and is referred to as Florida’s Workers’ Compensation immunity,’’ King continued. “That immunity also would have prevented suit; however, as stated before, the facts of the case supported that the actions at play here exhibited wanton and willful disregard of human rights, safety or property.”

King explained that “wanton and willful conduct” is defined by Florida case law as “more egregious than mere negligence, but less than intentional conduct.”

The case went before Fifth Circuit Judge Edward Scott, who disagreed that the facts met the level of gross negligence and ruled that the city and officer were protected under sovereign immunity. He dismissed the suit in July 2018.

The verdict went further. Frank, King and Forsyth’s estate were penalized financially for bringing the suit.

Although the case ended with King and co-counsel paying out of pocket at least $18,000 apiece to the city of Ocala and no recovery for their client after five years of litigation, King maintained it was the right thing to do.

“We believe the facts supported our attempt to seek justice for Mr. Forsyth’s family, and although many attorneys may shy away from difficult cases it has never been my practice to turn away deserving clients just because they may have a difficult case.

King and Frank both expressed frustration that Gilligan categorized the mother’s claim against the city as “murder.” Frank provided a letter she wrote a letter to Gilligan at the beginning of the litigation asking him to stop using inflammatory language that violated the rules of professional conduct requiring attorneys to be truthful to the judge and fair to opposing counsel.

“No one ever said one officer murdered another,” said King.

Gilligan would not respond to requests from the “Gazette” to talk about the case.

Separate, but related – personal vendettas came into play

An undercurrent throughout the June 2020 meeting transcript was the animosity voiced against Bobi J. Frank, one of the attorneys for the estate. Gilligan characterizing her work as “despicable.”

Juliano acknowledged that her case might have been handled the way it was because Frank was one of her attorneys. “I chose Bobi because she was in no one’s pocket,” she said.

In hindsight, she said, she would still have hired Frank.

Musleh, speaking of Frank in the 2020 meeting, said, “I’m going to tell you, she’s going to keep coming down here and suing us until she gets handed back to her.”

The angst between Frank and the city of Ocala had arisen from another incident that had occurred after the death of Forsyth. Frank would come to represent Rachel Magnum a/k/a Rachel Sams and Matt Sams, the main witnesses to Forsyth’s death, who along with a few other officers would bring claims of sexual harassment and retaliation against the Ocala Police Department.

Musleh may have been referring to the $500,000 settlement the city paid those officers after the Federal Equal Employment Commission weighed in on the merits of their claims just the year before.

Recently, the “Gazette” has learned that Frank had put the city on notice of a violation of that settlement agreement when Ocala Mayor Kent Guinn publicly disparaged Rachel Sams during her 2022 run for a county commission seat. The settlement agreement, which was reviewed by the “Gazette,” prohibits either party from disparaging the other or “taking any action that would be detrimental to business.”

OPD Chief Michael Balken declined to comment on Forsyth’s case, explaining he had no part in how the city council decided to handle the litigation.

Guinn told the “Gazette” he had “no interest” in commenting on the Forsyth case.

Forsyth’s gun

Another sign that the Forsyth case had become personal had to do with his service sidearm.

When an officer dies, it has become customary to deliver his or her service weapon to the fallen officer’s family. Juliano told the “Gazette” that when Graham offered her the gun, she asked that it be held in the care of her son’s former partner, Matt Sams, because she did not have a concealed weapons permit and did not know how to return to New York with the gun without one.

Graham’s deposition testimony supported Juliano’s recollection of being offered the gun and her directing it to Sams.

“I left it with his partner, who held his hand while he died,” she said.

Sams told the “Gazette” that he held the gun for Juliano until Graham sent an officer to his home asking to retrieve Forsyth’s gun.

Juliano sent a letter to Graham asking for the return the gun when she got her concealed carry permit, but her response was a letter from Gilligan telling her not to further contact Graham.

Frank sent a letter to the attorney for Graham, Edward McClellan, that said Juliano “only asks that you now allow her to obtain said handgun as it is no longer being utilized in the line of duty by her son’s close friend and former brother in blue.  The sentimental value that his mother places on Officer Forsyth’s handgun can’t be expressed in words.”

Graham, who according to Sams sometimes wore Forsyth’s pistol, died in an airplane crash in 2020. The whereabouts of Forsyth’s gun are unknown.

The litigation has taken a toll on Juliano, who lost her husband in 2021. But she wouldn’t stay on that topic for long.

Instead, she focused on her son.

Before his tragic death, Jared was “living his dream as a police officer,’’ she said. “Ever since he could talk, even before he could pronounce the word ‘police,’ he wanted to do that job.

“He treated everyone with dignity and respect,’’ she added. “Even the ones he had to arrest.”

At first, Juliano said, the city told her it was an accident that no one could have foreseen. But later, when she read investigative reports about what happened, she realized that was untrue and filed a suit.

“This all could have been avoided,” she said. “I wanted the officer that shot my son fired. Instead, the city gave him a promotion.”