Did the Florida Supreme Court Just Give Cops More Leeway to Kill With Impunity?

The New York Times reports that the decision gives “broader immunity to law enforcement officers” and “could make it harder to hold police criminally responsible in disputed shootings.” It says the ruling “would allow police officers in some cases to avoid jury trials in controversial shootings in which officers believed they were acting in self-defense but might have had other options.” The Times notes that “the 2005 law eliminates a person’s duty to retreat from a dangerous situation and frees them to use deadly force ‘if he or she reasonably believes it is necessary’ to prevent harm or death.”

That gloss is misleading, because this case did not hinge on the absence of a duty to retreat, which in any event would not apply to Florida police officers even without the Stand Your Ground law. The case involves Peter Peraza, a Broward County sheriff’s deputy who was charged with manslaughter after a 2013 incident in which he shot and killed Jermaine McBean, who was carrying an air rifle as he walked down the street in Oakland, a town about 20 miles west of Orlando. Peraza and other deputies were responding to a 911 call about a man with a gun. According to the Florida Supreme Court, the caller said McBean, who “had been hospitalized a week earlier after experiencing a mental breakdown,” “appeared distraught and was acting in an aggressive manner.”

At his pretrial hearing in 2016, Peraza testified that McBean ignored repeated commands to drop the “weapon” and instead pointed it at the cops. “I’ve never been so scared in my life,” Peraza said, adding that he saw McBean as a threat not only to him and his colleagues but to “women and children in the pool area” of McBean’s apartment complex, which he was approaching. “Although one witness testified that McBean did not point the weapon at the deputies,” the Florida Supreme Court said, the judge overseeing the pretrial hearing “rejected this testimony and resolved all factual disputes consistently with Deputy Peraza’s self-defense theory.”

It turned out that McBean, who had just bought the camouflage-colored air rifle at a pawnshop and was heading home with it, was listening to music through earbuds that may have prevented him from hearing the cops’ commands. But Peraza said he did not know any of that at the time and took the action he thought was necessary to protect himself, his colleagues, and the bystanders. The judge agreed that McBean had shown it was more likely than not that the shooting was justified and therefore dismissed the manslaughter charge.

The state appealed, arguing that the relevant law in this case is a 1974 statute that says a police officer “need not retreat from efforts to make a lawful arrest because of resistance” and is “justified in the use of any force” when he “reasonably believes” it is “necessary to defend himself or herself or another from bodily harm while making the arrest.” Note that the cop-specific law already eliminated the duty to retreat for police officers, decades before the Stand Your Ground law did that for anyone else attacked in a public place. In any case, the duty to retreat did not figure in Peraza’s confrontation with McBean, who according to testimony that the judge accepted was pointing what appeared to be an actual rifle at the sheriff’s deputies (although Peraza was the only one of the three who fired his gun in response). For Peraza, the crucial difference between the 1974 law and the Stand Your Ground statute is that the latter grants immunity from prosecution, which entails a right to a pretrial hearing, as opposed to a defense that can be used at trial.

An appeals court concluded that a police officer in Peraza’s situation can take advantage of either law or both, and the Florida Supreme Court agreed. The more general self-defense law, it noted, applies to “a person” who “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another” Since a police officer is “a person,” the court said, a straightforward reading of the law indicates that Peraza had a right to a pretrial hearing on the self-defense issue.

Contra the Times, the decision does not give police officers any more leeway than they already had to use lethal force when they have “other options.” Rather, it allows them, like any other Florida resident, to assert a self-defense claim prior to trial. When Peraza had his pretrial hearing, defendants had the burden of proving by “a preponderance of evidence” that their use of force was lawful. If a defendant can meet that test, it logically follows that prosecutors could not have proven him guilty beyond a reasonable doubt at trial. The hearing allows a defendant with a strong self-defense claim to avoid the cost, stress, and inconvenience of a full trial.

In 2017 Florida legislators changed the rules for self-defense hearings, requiring prosecutors to prove “by clear and convincing evidence” that the defendant’s use of force was unlawful. There is no statutory basis for letting everyone but police officers take advantage of that option. Nor would that be fair. Too often it seems that cops who kill benefit from a double standard. The right response to that problem is not to reverse the inequality but to insist on the same standard for anyone who claims to have used lethal force in self-defense.

https://reason.com/blog/2018/12/17/did-the-florida-supreme-court-just-give