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In Florida, Police Can Use Deadly Force Without Fearing Prosecution

| September 8, 2014

Police use of force in Florida appears immune from prosecution. (Garrett Wilber)

Police use of force in Florida appears immune from prosecution. (Garrett Wilber)

The New York Times reported last week that the state of Florida is not prosecuting police when they use lethal force. In fact, according to the Times, “in the past 20 years, not a single officer in Florida has been charged with using deadly force.” The Times reported:

As a grand jury considers the case of Darren Wilson, the officer who shot and killed Michael Brown on Aug. 9 in Ferguson, Mo., Florida’s experience points to both local and national factors making it extraordinarily difficult to prosecute, let alone convict, law enforcement officials for killing someone in the line of duty. Police officers have the authority to use lethal force if they believe they or others are in danger. More often than not, across the country, that right is one of the factors that make hurdling “beyond a reasonable doubt” a challenging task, prosecutors and defense lawyers said.

In Florida, even getting a decision on whether to seek charges is problematic. Three years after a particularly notorious episode in South Beach, a 2011 Memorial Day weekend shooting in which a 22-year-old was killed when the police fired more than 110 bullets at his car after it had stopped, prosecutors have still not decided whether to bring charges against any of the 12 officers, despite pressure to do so. Four bystanders were also wounded during the barrage. The shooting is one of 42 cases involving lethal use of force by the police, some dating back several years, now being reviewed by the Miami-Dade Office of the State Attorney.

Prosecutors and defense lawyers agree that the system is intended to protect police officers and give them the benefit of the doubt, though they can differ sharply on where they think the lines should be drawn.

Some prosecutors told the Times these cases require a thorough and lengthy investigation. Most of the time, these cases are very difficult to sort out, as well.

However, experts and civil rights groups point out that police aren’t getting prosecuted for using deadly force because the system in place for handling these cases is not working.

Miami Beach, for example, has had a lot of issues with police using deadly force in the past few years.

florida center for investigative reporting

Last year, a police officer tasered, and killed, an 18-year old who was spraying graffiti. This was one of the first times a medical examiner had ruled a taser as the cause of death. However, there has been no prosecution for the police officer for use of deadly force.

According to The Miami Herald,

On Aug. 6, a Miami Beach police officer caught Hernandez-Llach spray-painting a shuttered McDonald’s on North Beach. After a foot chase, Officer Jorge Mercado shot the local street artist with his department-issued Taser. The teen later died at Mount Sinai Medical Center. Miami Beach police have insisted that Mercado, who saw the teen rushing toward him, acted according to department policy in dealing with someone who was resisting arrest. Hernandez-Llach’s relatives have filed legal notice that they intend to sue the Miami Beach Police Department on a claim of excessive force. Todd McPharlin, the family’s lawyer, said the medical report supported their criticism of police.

“Our reaction is that these officers used what turned out to be deadly force for what everybody understands was a minor property offense,” he said. The medical examiner’s finding was unusual because a Taser, commonly used by police, has never been cited in an official cause of a death report in Florida. Most local Taser-related deaths have been ruled as cases of “excited delirium,” a rare brain malfunction — often fueled by cocaine or mental illness — that researchers say morphs victims into raging, violent, feverish attackers who often encounter police while in public spaces.

Just a few years prior, Miami Beach police were in national news for shooting up a car during Urban Beach Weekend in South Beach– killing one man and injuring others.

It’s been over three years since the incident and there’s still no sign that the police will face any charges, or even whether they should.

According to the Herald,

Miami-Dade prosecutors now say they are hoping to wrap up their probe within the next several months, meaning the public will finally get an in-depth look at the night a dozen officers from Hialeah and Miami Beach unloaded 116 shots at motorist Raymond Herisse, killing him — and wounding at least three bystanders. Miami-Dade state attorney’s spokesman Ed Griffith defended the pace of the probe. “This investigation has been complicated by a three-block-long investigative crime scene involving multiple police agencies, which added another layer to the comprehensive legal review of the facts and the evidence,” he said. “The work on this investigation has been steadily progressing and hopefully will be completed by the end of the summer.”

The investigation will show whether prosecutors believe any officers broke the law in discharging their weapons. Though criminal charges appear unlikely with the broad latitude officers are granted under the law, the findings also could play a key role in stalled civil lawsuits against Miami Beach and the police departments. Just on Friday, a lawyer for Cedrick Perkins, a bystander who still has a bullet lodged near his heart, filed an excessive-force lawsuit against Miami Beach, Hialeah and individual police officers. Another wounded bystander, Carlson St. Louis, will also file next week, said his lawyer, Eli Stiers.

The Times reports that it’s not just the law that stands in the way of getting prosecutions in cases like this.

According to the Times, “charging police officers for illegal use of force can pose a thicket for prosecutors for other reasons.”

For starters, police departments investigate themselves, raising serious conflict of interest issues. As part of the same law enforcement team, prosecutors must rely on police work to make their cases and are reluctant to mar these relationships without unassailable evidence, legal experts said. “I’m not going to cast ill on it,” said Michael R. Band, a former top prosecutor here and now a criminal defense lawyer. “But it’s a fact of life. There is a relationship there.” And state attorneys are elected, making them vulnerable to political pressure, lawyers said. Police unions wield considerable power in elections. “They are in bed together, which is why police shootings should be investigated independently,” said Mr. Weiner, the criminal defense lawyer in Miami.

In the end, even if they are charged or indicted, most officers are acquitted by juries. The people who are shot are not always sympathetic in the eyes of jurors; in many cases, they were committing crimes when they were killed. Witnesses can sometimes suffer credibility problems. By contrast, police officers are often held in high esteem, depending on the jury, and are traditionally viewed as guardians of the community.

A 2007 Justice Department study of police use of deadly force in the United States found Florida—along with California and Texas—led the nation for its number of police killings and arrest-related deaths.

–Ashley Lopez, Florida Center for Investigative Reporting

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29 Responses for “In Florida, Police Can Use Deadly Force Without Fearing Prosecution”

  1. Local says:

    The liberal slant of this article is quite amazing.

  2. John Smallberries says:

    Thanks for this article. Some comments:

    1. The belief that an officer’s life or the life of someone else is in danger as the sole indicator that allows an officer to kill someone is ridiculous. How someone perceives a situation is heavily influenced by their mental state, making them feel threatened even if a threat isn’t present. This is compounded by the fact that the culture in departments cultivates an “us vs. them” mentality, where every traffic stop might be the officer’s last as he’s gunned down in cold blood, when in reality sanitation workers and truck drivers experience a much higher occupational fatality rate.

    2. Policing is a heavily incestuous field, where an officer in one precinct might have several federal lawsuits in progress against him or her for excessive force and yet can quit and join a different precinct without HR batting an eye. They also don’t like getting their fellow officers in trouble because it crosses the thin blue line, meaning that problem officers can and will be a problem for a very, very long time, at least until they do something that becomes a big enough embarrassment that something’s done about it. Just look at how Adrian Schoolcraft was treated by his fellow police officers.

    3. When something is done about it, the results are a farce. This happens because prosecutors want to be on the good side of police or suddenly police officers don’t show up for trials, or they lose critical evidence for the prosecution, or etc. Case in point: John and Lisa Murray, ex-bunnell police. For John, 6 felony charges somehow end up with 5 being dropped and a no contest plea for 20 grams of marijuana. Both he and his wife end up with community service and probation, when in reality there were charges involving evidence tampering, theft, possession of cocaine, xanax, and marijuana, and official misconduct for fixing traffic stops to go to one towing company for kickbacks.

    Ultimately, what you have is a profession that has lots of leeway for criminal behavior in its ranks, with little oversight that isn’t internal in nature, and that is almost never held accountable for any of its behavior.

  3. Pastor Jones says:

    So as a Black man I guest that a member of the police dept who mite have had a bad day, can kill me for nothing and don’t have to worry about prosecution. Good thing I know God. And i have a place in heaven.

  4. just saying says:

    There is just so much I want to say about this halfhearted, half researched and half told story that it angers me. To believe this drivel is reproduced as news is just frightening. Read some case law,

    Graham v. Connor
    DeShaney v. Winnebago County
    Tennessee v. Garner

    • w.ryan says:

      Just saying- What does case law have to do with anything? There are case law supporting racism and segregation! Look forward, not back! There is a great need to improve Policing! Just like parenting has changed so is the need to change the strong hand of thoses who we place the authority of life and death! What right does an agent of the state possess over our constitution? Years ago parents could use a belt to punish children, That is not lawful any more. We need protection from the states parenting in the same regard. Long ago there was an unquestionable authority to the Police. But now we know the law and are wiser. Policing must change to accommodate this new model of citizenry. After Ferguson we are getting a big picture of what poor people especially blacks go through by the hands of Law Enforcement and Municipal Governments who impose ridicules fines making life harder on the least able to afford it! I for one appreciate the attention to these facts about Police killing in the great state of Florida openning the door to Justice! RIP Troy Gorden, Michael Brown, kajiene Powell, Eric Garner, Amadou Diallo, Oscar Grant, Manuel Loggins Jr. Ronald Martin, Sean Bell and a host of others.

    • Johnny Taxpayer says:

      I’m not sure what 3 civil (not criminal) Supreme Court cases, none of which have any relevance to police prosecutions in Florida, or lack there of, have to do with this article?

      • Case law says:

        Case law is the difference between knowing your rights and understanding your rights.

        Maybe, just maybe the blind, ignorant hatred of cops has swayed me. Should we start with persecuting the ones who make the news now, or wait for their due process to be complete and then persecute them based on what we get from the news?

  5. Truth Seeker says:

    Here’s a thought:

    A.) Don’t give the police a reason to be involved in your day.
    B.) If they are, comply.

    This article casts a negative light on those in which we call on in desperate times. There are every day men and women who do a job that most don’t have the guts to do, at minimum pay. Instead of bashing “use of force” issues, how about we show more support for those who do a job we won’t.

    • w.ryan says:

      Most African American men teach our children in particular not to give a reason for police to stop us but for the attraction to policing harshly in black neighborhoods is irresistible to Law Enforcement. Jaywalkers get shot in Black communities by Police. Selling loose cigarettes tend to get a black man killed as well. Emmitt Till complied and was lynched. Black men are being shot because of the fear of unarmed Black people. Maybe they should look past darker complexion. Sounds like the argument about climate change! It’s happening but some republicans don’t want to see the reality! Policing is difficult and Law Enforcement is respected but the article stated facts about police shootings and who is exempt from prosecution.

    • Johnny Taxpayer says:

      Your comments are both scary and inaccurate. First of all, I don’t know of a single police department in this country that has trouble recruiting new police officers. It’s typically pretty competitive to get hired on. And as far as minimum pay most officers make a fairly decent living. Look at Palm Coast, it’s filled with 50 year old retired Police Officers living very comfortably.

      But the idea that we should just “not give the police a reason to be involved in our day” and “comply” is scary. Let’s remember the foundation of policing in this country is supposed to be “Policed by consent”… we free people consent to being policed by our peers in the community, they work for us, and their loyalty is supposed to be to public they allegedly serve, not to the Government. But that has gotten way off track to an “us versus them” mentality and a guilty until you prove otherwise approach. Everything goes in the name of “Officer safety”, they can stop and frisk you without a reason, just because of officer safety. If an officer tells you to do something and you don’t do it quick enough you’re likely to be tazered and charged with resisting arrest!. That’s not policing by consent, power run amok.

      • kbeed1938 says:

        The retired police officers that you speak of in Palm Coast are retirees from New York and New Jersey. Local police officers (Flagler County) are near the bottom of the national pay scale for police officers. As far as policing by consent, history shows that without the presence of police, our society turns to chaos, looting and vandalism. Look what happened after Katrina, the Watts riots in California and the chaos in Chicago during the Democratic Convention in the 60’s.I challenge you, Johnny Taxpayer, to put yourself on the front lines during our next civil disturbance, wherever it may be and see how long you leave your baton, taser or gun in their holsters. Thank God for the men and women in blue that provide the veil of security that we all live under every day of our lives.

        • austin says:

          No one is saying we should take LE away. But LE needs to be policed as well.

        • John Smallberries says:

          Indeed, look at the chaos that happened after Katrina, where New Orleans police shot and killed two men and wounded four others, all unarmed. They then made up a story about how they were responding to an officer down call and everyone was armed and trying to kill the poor, innocent policemen when in reality they were just shooting fish in a barrel. Those police were prosecuted and then had their charges vacated and a retrial was ordered for crap reasons.

          And then there’s this little gem,

          where NOPD officers are videoed looting a walmart after katrina.

          And let’s not forget that the Watts riots were in part due to systematic discrimination by the LAPD, discrimination that gave rise to the rodney king incident. Let’s not also forget that the LAPD was victim to ONE OF THEIR OWN, christopher dorner, who decided to start killing LAPD officers because he was fired from the LAPD for filing a false police report on a fellow officer for excessive force, which was in reality a true police report:

          And yes, you’re right, let’s not forget the Chicago riots in the 60’s, the ones that started because a kid lowered the american flag during a legal rally, which prompted the police to rush the rally and beat the crap out of the kid, causing the riot in the first place.

          You might want to pick your examples of shining police conduct better.

        • Johnny Taxpayer says:

          Does Flagler County have trouble recruiting deputies? I don’t think so… and while starting salaries maybe low at the FCSO, very few deputies actually make the starting salary with overtime and details. I’m not saying they’re getting rich, but they’re not vastly underpaid either.

          And I’m not sure what point you’re trying to make by citing riots and looting examples. In each example you list, the Police were present, and did not stop the rioting or looting from occurring, hell in some of those examples the argument could be made that the presence of police directly contributed to the riots and looting!

          As far as history, let’s not forget the modern policing is not all that old a concept. It wasn’t even around prior- to the mid-1800s, what did we do before then? Was it just chaos and anarchy?

  6. Jim O says:

    WOW – what a POS article. I am not in any way connected to law enforcement nor any member of my family. Being a police officer or teacher in today’s world is a thankless job and has way more downside the upside in my view. Thank you to all the fine members of the law enforcement community. Do your best and be safe.
    News flash… We are not all perfect.

  7. Sherry Epley says:

    “Don’t give the police a reason to be involved in your day”. . . so that means that we should all stay in our homes 24/7 to keep us from possibly being innocent by standers, perhaps of the “wrong” color????

    How about the bright idea that police should be integrated into and representative of the community? They are hired to “serve and protect”. . . not to be a “combative force” against the very people they should be serving. The police are NOT judge and jury! Yes, of course they should protect themselves and us, but NOT without balance and complete impunity!

  8. HonkeyDude says:

    Case and point… Again criminals have more rights than cops.
    Hey y’all, let’s have Us a cop hanging for them saving our lives.
    People need to grow up and own their actions and families need
    to quit whining and suing for their beloved criminals who all of a sudden
    Were such great people. Blah blah BS
    And everyone needs to quit with this BS race card Bologna also.

    • John Smallberries says:

      The police have a number of rights that extend well beyond that of the average american, one of which is apparently near-immunity from prosecution. Hope that helps.

  9. Lin says:

    Why are the police guilty until proven innocent?
    Attitudes toward police that run towards danger when called make it so much harder for them to do their jobs
    Their rights seem to be secondary to all the “groups ” fighting them

    Let’s look at each officer as a human trying yo do their job until proven otherwise
    The anger here and generalizations are just perpetuating a stereotype
    Doesn’t help and this article shed no light just brought more clouds

    • NortonSmitty says:

      Lin, read the article. Not ONE officer has had charges brought against them in twenty years, despite having taken the lives of hundreds of our citizens in that time. Many killed under very questionable circumstances. So just where do you come up with the Guilty until proven Innocent statement? The statistics prove that they are Innocent until proven guilty at a rate of 100%, coincidentally with the same conviction rate. And you feel this is acceptable? Without question?

      The outrage is that in Florida today Law Enforcement Officers are killing normal citizens of all strata and regardless of the circumstances nobody never even seriously attempts to thoroughly investigate if the shooting was justified and bring them to justice if it was not.

      And in a free society there is no way we should allow this to go on for twenty years unquestioned.

      • Lin says:

        I did read the article
        There are a bunch of scenarios described that involved police shootings
        No charges
        Are you saying that you know better and that those police officers should be prosecuted?
        Without specific information that those particular officers are guilty of something, this article just contributes more debasing of police officers which media seem to throw at us a lot more

        Whenever a police involved shooting happens, and they will happen because of the nature of the job, we hear about all the other shootings and how oppressive, discriminatory, etc.

        I suggest that we should take each case on its own merits especially without the evidence to the contrary
        Do you have the evidence to indict these officers in the article ?
        If not then don’t pile on
        Just my opinion

  10. Sherry Epley says:

    Well put John Smallberries and Right On Norton Smitty. . . as usual! I wonder if Florida can now be characterized as a “police state”. . . since our police can kill citizens, on the spot, with little oversight, resulting in NO consequences for the past 20 years!

    • just saying says:

      It’s also possible that the shooting have been deemed justifiable under the objective reasonableness standard provided by SCOTUS under case law? If it wasn’t objectively reasonable that officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others, then a grand jury of your peers (not the state attorney’s office, FDLE or anyone else) should have the opportunity to hear actual evidence (not the drivel released by media to sensationalize the story for their own gain) and choose to convict or exonerate the accused.

      To go the other end of the story, there is no statutory or case law that requires any officer to put their life into jeopardy to save anyone else. Cops could stop responding to crimes in progress, and only show up once a time has elapsed that the criminal should have fled and the scene safe for them not need an abundance of caution. Would you rather have them show up, guns blazing to save guard you and your family, or show up a few hours after your desperate call for help so they can fill out the report for you?

  11. Winny says:

    Here’s the deal, the general public has the luxury of walking away from a fight. WE DON’T. The general public has an expectation of of police response during their moment of crisis. We have sometimes less than seconds to determine if the person who is about to take your life needs to be ventilated or not. Do you really want officers to second guessing themselves in your moment of crisis when saving your life is absolutely the right thing to do.

    Do you want to have to make those choices in your job on a daily basis? If not, shut up and let us take the bullet for you, so that you can go on living and running your jibs about how terrible we are.

    “Citizens sleep easy at night knowing rough men stand ready to do violence upon their behalf”
    George Orwell.
    21 years of service to you and it has Been my pleasure.

  12. jorge Rodriguez says:

    On March 13,2013 my brother Juan was
    killed by miami dade police. He was riding
    his bike a couple of blocks away from his
    house ,when police stopped him .its been almost two years and we still cant see his
    autopsy or anything because they say its under investigation.they killed an unarmed
    man .the police are so corrupt in miami that
    they really are getting away with murder.
    there is a GOD.And GOD will have his justice.
    everyone will have to anwser for what they do.

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