September 3, 2014
New York Times
MIAMI — For decades Florida has had a history of deadly, racially tinged police confrontations, many of them involving unarmed men, which have led to riots, protests and a steady undercurrent of rancor between minorities and the police. But in the past 20 years, not a single officer in Florida has been charged with using deadly force.
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.
“The system is incredibly biased in favor of the police and incredibly unfair to victims of police shootings and brutality,” said Jeff Weiner, a prominent criminal defense lawyer in Miami. Still, he added, “Of course the police are out there every day risking their lives and making split-second decisions, and nobody is taking that away from them.”
Prosecutors say the slow pace reflects the need for a thorough, rigorous investigation, adding that cases involving police officers, who must quickly make life-changing decisions, are seldom easy to navigate.
Miami, in particular, has been steeped in police-related shootings. In recent years, that history has included a botched 2011 operation that left four armed robbers dead, one of them a police informant, and seven deadly shootings in 2010 and 2011 that drew the scrutiny of the Justice Department and court oversight of the Miami Police Department.
Some legal experts point to Florida’s track record — no charges against officers in 20 years, according to the Miami-Dade state attorney’s office — to emphasize that the system is burdensome at best and broken at worst.
“What that means is that every shooting has been a good shooting, and that the police have never done anything wrong, and if you believe that, I have a bridge I can sell you,” said Howard Simon, executive director of the American Civil Liberties Union of Florida, who has been sharply critical of the dearth of police prosecutions.
In Miami, which last saw widespread unrest over police shootings in the early 1990s, the county’s top prosecutor, Katherine Fernandez Rundle, said her 26-member team conducted the state’s most thorough investigations of police shootings, beginning with sending two prosecutors to the scene immediately after a shooting. Cases are also automatically referred to the Justice Department for possible civil action, and she said she made a point of meeting with community members.
“It is much better to make the 100 percent decision you are going to tell the community about when you have 100 percent of the information,” she said about the slow pace of the investigations.
No police officers have been charged in cases involving lethal use of force in recent years, she said, because the cases are difficult and because the courts and laws grant officers wide latitude to defend themselves, particularly in Florida. However, her office has prosecuted officers for wrongdoing that did not result in a death.
The courts have ruled that police officers should not be penalized for using bad judgment in dangerous situations, said Don L. Horn, the chief assistant state attorney for administration.
“This does not mean that we believe all the shootings were appropriate,” Mr. Horn said. “We have had shootings that, based on the law, were legally justified but we also concluded were totally unnecessary.”
In many cases, prosecutors must rely on the word of police officers, Mr. Horn said. “And even though we may not believe a certain set of testimony, if we can’t prove it to the contrary, then that’s where we are,” he added.
But the relatives of those who have been killed by police officers lament the decisions not to prosecute and the slow pace of the investigations. As the days turn to months and years, memories fade and public outrage dissipates, all of which takes the pressure off prosecutors, legal experts said.
In one case last year, Israel Hernandez-Llach, 18, a graffiti artist, died of a heart attack after a Miami Beach police officer shocked him with a Taser. The officer said Mr. Hernandez-Llach, who fled after the police saw him tagging a building, had confronted him, prompting the officer to use his Taser to subdue him. Witnesses have disputed that account. Outrage in the community prompted the Florida Department of Law Enforcement to step in and review the Miami Beach Police Department’s investigation.
Supporters of Mr. Hernandez-Llach’s family continue to hold vigils and protests to push for a decision in the case.
“This is something that is very wrong with the system,” said Jorge Estomba, a friend of the family who spoke on its behalf. “This is not a case that, in and of itself, is complex.”
For the family of Raymond Herisse, the 22-year-old who died in South Beach in 2011, the clock has been running for years. The police said Mr. Herisse had been driving recklessly before dawn when he hit parked cars, bumped a police officer on a bike, endangered pedestrians and disobeyed commands to stop. Mr. Herisse was drunk at the time, toxicology reports showed.
Ultimately, Mr. Herisse did stop. About a minute later, 12 officers opened fire.
“What happened to Michael Brown is very unfortunate,” said Marwan E. Porter, the Herisse family’s lawyer, of the Ferguson case, “but it pales in comparison to what happened to Raymond Herisse.”
“Their silence on this speaks volumes,” he said of the state attorney’s office.
Frank Ledee, chief of the gang prosecution division and the prosecutor in charge of the case, said the Herisse shooting was one of the more complex cases the office had handled, involving multiple crime scenes and shooting scenes, police officers and victims, and hundreds of witnesses. Thoroughness, he said, takes time, and prosecutors must also keep pace with the county’s other homicides.
Beyond the law, though, 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.
“When you are charging a police officer with a crime, you are essentially asking most jurors to look at the world upside down: The good guys are in the defendant’s spot,” said David A. Harris, a University of Pittsburgh law professor who specializes in law enforcement behavior. “Prosecuting police officers successfully is a difficult task even in the strongest cases.”
A version of this article appears in print on September 4, 2014, on page A12 of the New York edition with the headline: Florida Prosecutors Face Long Odds When Police Use Lethal Force.