Mimesis Law
22 July 2019

Florida Deputy Granted Immunity Under State’s “Stand Your Ground” Law

August 11, 2016 (Fault Lines) — Broward Sheriff’s Deputy Peter Peraza was one of the only two law enforcement officers employed by the Sunshine State that had been criminally charged for an on-duty shooting in over 25 years.  The other is Palm Beach Officer Nouman Raja, who has been charged with charged with manslaughter following the shooting of drummer Corey Jones.

For the time being, Raja is the only one scheduled to face a jury of his peers, as Peraza has become the first Florida officer to have been granted immunity under Florida’s “stand your ground” statute.  The Sun Sentinel reports:

The decision by Broward Circuit Judge Michael Usan, dismissing a manslaughter charge against Peraza, will be appealed by prosecutors, according to a statement from the Broward State Attorney’s Office.

McBean was shot on July 31, 2013 after ignoring orders to drop an air rifle he had been holding while walking through an Oakland Park neighborhood. Deputies arrived after several calls to 911 had been made.

Broward Police Benevolent Association lawyers Eric Schwartzreich and Anthony Bruno, who represent Peraza, presented their argument to Usan during six days of hearings last month, with prosecutors Tim Donnelly and Ryan Kelley arguing that Peraza is not entitled to immunity from prosecution under the state’s “stand your ground” law.

The deceased in this case is Jermain McBean, who in 2013 was shot by Peraza while he was walking home in Oakland Park, Florida. That day, some people “saw something” and “said something”: multiple 911 callers said they had seen McBean, an African-American, walking across their neighborhood with a rifle slung over his shoulder. In reality, McBean was holding an air rifle he had just purchased at a nearby pawn shop when several cops, including Pereza, responded to the scene.

They approached him from behind, purportedly told him to drop the rifle, but Peraza claimed that McBeam turned and pointed the gun at them, so Peraza shot McBean to death. McBean’s family claimed that he always wore earbuds, but the cops said there was no reason to believe McBean could not have heard the command.  But later, a photo emerged showing earbuds in his ears immediately after the shooting – those same earbuds that were later found stuffed in McBean’s pocket — and one of the 911 callers said he never saw McBean point the gun at the officers.  During the internal investigation of McBean’s shooting, Peraza received a “Gold Cross” award for his “bravery” during the same incident.

In what can be characterized as a freak occurrence an almost unprecedented turn of events, the case was sent to a grand jury and an indictment was returned for one count of manslaughter with a firearm, in violation of Florida statutes §§ 782.07 & 775.087(1).  Peraza’s defense lawyers went on the offensive, and moved to dismiss the charge on two grounds: (i) that he was immune under Florida’s “Stand Your Ground” statute; or, in the alternative (ii) that as a police officer, his use of force was justified under Florida law.

The defense got Peraza two bites at the apple, as they should, so long as their actions are effective, legal and ethical. So if he succeeded in one, he would be off the hook.  The state responded that the “stand your ground” defense is not available to a law enforcement officer but reserved to the general public, as per the decision from Florida’s Second District Court of Appeals’* decision of State v. Caamano.  Judge Usan sided with Peraza, ruling that he had met his burden by a preponderance of the evidence with regards to his “Stand Your Ground” claim:

“McBean pointed the weapon at or in the direction of the deputies,” Usan said. “[Peraza] was in fear for his life and the lives of others.”

Usan also ruled that the “stand your ground” law applies to police officers on duty because it applies to “a person who uses force…”

“A law enforcement officer under any reasonable understanding of our language qualifies as a person,” Usan wrote.

The order also delved into McBean’s mental health history, and how it was relevant to help explain his encounter with law enforcement, in that McBean’s action was “consistent with someone having a psychotic episode and was likely reacting to paranoid delusions.”  But this analysis was unnecessary for the judge to rule on the defense’s motion, as it has nothing to do with the perceived threat at the time of the shooting.  If McBean was not acting bananas when Peraza fired the fatal shots, and the police officer didn’t fear for his life as a result of McBean’s actions, it has no bearing on whether the shooting was justified.

With regards to the issue of the earbuds, the judge made short work of that issue:

While the issue of ear buds might account for the victim’s behavior, they do not change the perceived threat from the perspective of the defendant. A person pointing a weapon at a law enforcement officer, whether he hears or does not hear a command to drop the weapon will not diminish the threat environment.

The state has already appealed to the 4th DCA, and if the order is upheld it will create an additional escape valve for those police officers who find themselves at the receiving end of an indictment.  It’s as if the “reasonably scared cop” rule hasn’t already tilted the scales in favor of Peraza and his brethren.

*The Fourth District Court of Appeals has jurisdiction over Broward County.  The Second District does not.

4 Comments on this post.

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  • Paul L.
    11 August 2016 at 11:54 am - Reply

    Doesn’t Law Enforcemet automatically get “stand your ground” protections on steroids under Federal law?

    • Mario Machado
      11 August 2016 at 4:07 pm - Reply

      “Stand your Ground” grants immunity from prosecution under Florida law, and it has mostly been used by civilians (my post discusses how Peraza is the first Florida officer to use it successfully). The “reasonable officer” standard that’s applied to police shootings was created by the U.S. Supreme Court in Graham v. Connor, and it is different from Stand Your Ground.

      I hazard to say anything happens “automatically.” Even when a cop gets a free pass for shooting an unarmed civilian, some process/investigation/dog-and-pony-show usually goes down before the officer is cleared.

  • Rick
    11 August 2016 at 7:51 pm - Reply

    “In reality” an air rifle is a rifle, it may not be a lethal weapon but most people could not make that distinction on the spur of the moment. When police are responding to a call of ” a man with a rifle” they arrive with an expectation that that’s what they will find. To expect them to be able to make the distinction between a lethal weapon rifle and an air rifle in an unknown situation seems to me to be unrealistic. Here’s a study I found on the police response to the thousands of crimes committed each year with toy and air guns.
    http://www.bjs.gov/content/pub/pdf/tg-icep.pdf

    • Mario Machado
      12 August 2016 at 10:46 am - Reply

      Air rifle or not, McBean’s shooting was not “spur of the moment.” Far from it actually. Peraza and his team showed up at the scene, in broad daylight, approached McBean from the back, and then supposedly told him to drop the rifle several times before he shot McBean. And this is not about “most people.” It’s about a police officer, who carries a gun and may be justified in shooting a person if he can later show he felt reasonably scared at that moment.

      The officers were also given background information from the 911 dispatcher, so it wasn’t an “unknown situation” as you claim. As for the study, it doesn’t add to the discussion as to whether the shooting was justified. For more on that question, go to Simple Justice’s article on McBean, since this post was about how Peraza was successful in using an immunity statute that was used by (and meant for?) civilians.

      You’re welcome. And please try not to sound like a police union mouthpiece. I’m still not desensitized to that tone and such lazy attempts at obfuscation. I have feelings too, you know.