Investigation: Miami Beach Police Say 2011 Shooting "Under Investigation"

Police Tell FDLE Shooting Was Justifiable Homicide

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    NEWSLETTERS

    The FDLE is investigating the 2011 Miami Beach Police Memorial Day Shooting, but police said it was a justifiable homicide. (Published Wednesday, May 21, 2014)

    Just before 4 a.m. on Memorial Day 2011, partiers still strolling along Collins Avenue near 14th Street here heard four gunshots ring out, sending many of them scurrying and diving for cover.

    Two seconds later, the car being fired at by police officers specially assigned to patrol Urban Beach Weekend came to stop just before 13th Street.

    As a dozen officers surrounded the car, weapons drawn, at least two bystanders recorded video, which appears to show the blue Hyundai did not move again. But one minute and three seconds after the car stopped, one of the officers began firing at the driver, sparking colleagues to unleash a five-second fusillade of gunshots, killing the driver on the spot.

    Three years later, citing the still “ongoing investigation,” Miami Beach police say they cannot tell the public exactly why officers shot and killed 22-year-old Raymond Herisse.

    But the Team 6 Investigators found the department certified to the Florida Department of Law Enforcement in February 2012 that the killing was justifiable, stating in its crime statistics report that the “felon” was killed “in commission of crime.” Police agencies must base such a determination in their crime report “according to the investigating officer’s findings,” according to the FDLE guide manual issued to the departments.

    Team 6 Investigators asked the police department why it reported to FDLE that the homicide was justifiable, while publically claiming the shooting was still under investigation and no determination had yet been made. The agency cited the portion of the crime reporting manual that says “certain willful killings must be classified as justifiable or excusable” and that justifiable homicide includes “the killing of a felon” by police in the line of duty.

    Miami Beach Shootings

    [MI] Miami Beach Shootings
    Miami Beach Shootings (Published Monday, May 30, 2011)

    “He became a felon the minute he attempted to run over a Hialeah police officer with his car,” police spokesman Sgt. Robert Hernandez said today.

    That differs from what police said back in May 2011, when they claimed Herisse actually did strike an officer with his car, not just attempt to strike him.

    Officers said the car they shot at was driven recklessly south on Collins Ave., striking cars and a bicycle officer. Soon after, an officer fired the first of those four initial gunshots toward Herisse.

    In the end, 16 of the 116 bullets fired struck Herisse, who tests showed had not fired a gun that night, including one police said days later they found wrapped in a towel under a seat in the car.
    He had a blood-alcohol level of 0.14 percent, almost twice the legal limit of 0.08 percent.

    Other bullets, though, struck four bystanders, including Cedrick Perkins, a Tallahassee painter who tells the Team 6 Investigators he was standing outside the Delores Hotel when the shots rang out.

    “I was trying to get to a safe place,” he said. But, he added, there was no safe place – “not at that moment, not the way the police were shooting.”

    He passed out and came to in the hotel lobby surrounded by police and strangers trying to save him. “I thought I was dead,” Perkins said.

    He would live, albeit with a bullet fragment still lodged in his chest near his heart, his life “changed tremendously, … not able to do what I was able to do before I got shot,” he said.

    This week, his attorneys say Perkins – like Herisse’s survivors before him – will file a federal lawsuit accusing Miami Beach and Hialeah police of civil rights violations and other wrongdoing.

    What they did not know, until informed this month by the Team 6 Investigators, was the department had determined more than two years ago that it was a justifiable homicide, for purposes of reporting its crime statistics.

    Chuck Murphy, supervisor of FDLE’s crime reporting section, said an agency should not report a homicide was justified until it determines it was justified. “There shouldn’t be a difference, that I’m aware of” between what the agency tells FDLE and what its investigation determined about the nature of the killing, Murphy said.

    The UCR manual used by agencies to guide their reporting says the killing should be reported “according to the investigating officer's findings.”

    But, when then Chief Ray Martinez certified the crime report in February 2012, his investigating officer’s findings were not complete.

    The department said it took two years to finish its initial investigation, then forwarded the matter to State Attorney Katherine Fernandez Rundle, who has yet to rule on whether officers were justified in killing Herisse.

    The police department’s claim to FDLE that the killing was justified was news to Perkins and his attorneys, including Benjamin Crump.

    “If they’re telling FDLE it’s a justifiable homicide, why don’t they close the investigation and give us the information so Mr. Perkins and the others who were injured that night can go ahead and go forward with their legal matters,” Crump said.

    “To say there’s an ongoing investigation but they have already presupposed the investigation’s conclusion is going to be justified, then why even have this farce and say it’s an investigation?” Crump asked. “We need a real investigation, a fair investigation, an impartial investigation that gives Mr. Perkins and the other victims out there their due process.”

    Like Miami Beach, the state attorney’s office declines to comment on the investigation.

    Crump, though, said dragging out a police-shooting investigation for three years or more is a tactic used by agencies who may fear they’re going to found liable for a killing.

    “Doing a lot of these police brutality cases, I just think that’s part of the playbook,” Crump said. “You always say it’s an ongoing investigation, it’s an ongoing investigation, and you continue to say that with hopes it gets swept under the rug. Well, Mr. Perkins isn’t going anywhere. The bullet in his body isn’t going anywhere.”

    Perkins said he had his own suspicions about why police and prosecutors are taking so long: “It’s obvious they have a lot to hide. They’re trying to cover things up, I believe.”

    For instance, Perkins and Herisse’s attorneys note, a judge last year found Miami Beach violated her court order demanding they turn over certain public records to the victims’ attorneys, even though the city claimed it could not do so while the investigation was ongoing.

    The city tried to claim the term “visual recordings” in the judge’s order did not include photographs, a stance the judge found so untenable, she sanctioned the city for forcing the victim’s attorneys to revisit the issue in her court after her order was final.

    Last week, the city asked an appellate court to reverse the trial judge’s sanctions order, which demands the city pay a still-undetermined share of the victims’ attorneys’ legal fees and costs.

    But at least one of the three appellate judges on the panel also appeared to have issues with the city’s stance.

    “Obviously, the trial judge wasn’t buying that,” said appeals court Judge Linda Ann Wells. “The trial judge in her order was, astoundingly -- astoundingly, when you read this order -- she is saying, you are slicing the onion so thinly, I’m not buying. She didn’t buy one bit of that.”

    Another judge noted the city was “fighting tooth and nail” to prevent the release of records about its officers’ conduct.

    One of Perkins’ attorneys, Jasmine Rand, said she knows why. “I think the reason they’re fighting every step of the way is because they know they’re wrong,” Rand said. “There is absolutely no justification for firing over 100 rounds of bullet son a crowded street in Miami Beach on Memorial Day weekend.”

    “Miami Beach’s conduct is some the most egregious that I’ve seen in any department in the nation,” Rand said. “Their use of force was unreasonable and completely unwarranted and they injured a lot of innocent people in the process.”

    Marwan Porter, an attorney for Herisse’s survivors and estate, said the records released so far
    “confirmed our belief that the officers involved in this shooting overreacted and not only put my client Mr. Herisse in harm’s way, but the public in general in harm’s way.”

    As for taking three years, or more, to investigate, Porter said, “Silence speaks volumes in some situations. This is one of those situations. It’s going to be very difficult in my opinion to justify that kind of conduct.”

    A federal court may ultimately decide if that is supported by the evidence, which the attorneys say they are grateful includes video recorded by bystanders.

    “The good things about this is we have videotape, so we don’t have to go by what they tell us happened,” Crump said. “We can see it for our own eyes.”

    Perkins, of course, saw it in person, carrying a reminder of Memorial Day 2011 close to his heart – centimeters away, in fact, in a bullet fragment.

    And, no matter how long police and prosecutors delay a decision, Crump said Perkins is not going anywhere. “He’s going to fight until the truth comes out and we’re going to continue to look at that video every Memorial Day and ask, ‘What happened?’ and ‘Was anyone held accountable for this?’”

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