I can almost hear the moans coming from the State Attorney’s Office this week. Poor guys, can even a week go by without another bombshell motion being filed in the Peraza case?
Last week we learned Jermaine McBean, the man who sadly lost his life in this case, suffered from some very serious mental health problems that explain why he would walk down the street with a rifle, freaking everyone out, and then point the gun at police.
This week was even worse – we learned that Deputy Peraza has actually been immune from prosecution the entire time. No, not because he wears a badge, but because his case presents a textbook example of Stand Your Ground immunity under Florida law.
Earlier this week, Deputy Peraza’s attorney, Eric Schwartzreich, filed a Motion to Dismiss citing immunity from prosecution in accordance with Florida’s Stand Your Ground laws. The motion is public record and is available on the Broward Clerk’s website. You can also read it here: Motion to Dismiss (Stand Your Ground)
The Big Question
As you read this article and realize that Deputy Peraza has been immune from prosecution this entire time, I want you to ponder one simple question: Why did the State Attorney present this case to a Grand Jury?
Under Florida law, a prosecutor has the responsibility of being a “minister of justice” and not simply an advocate like a traditional attorney. In what way did the State Attorney act as a minister of justice in this case?
How did he pursue criminal charges knowing that they weren’t supported by probable cause due to the fact that Deputy Peraza has immunity under Florida’s Stand Your Ground law?
This isn’t a case where the facts are muddled or the question of immunity is hard to decipher or is clearly unwarranted. In fact, quite the opposite is true. Deputy Peraza’s case is the best example of Stand Your Ground immunity I have ever seen in the courthouse, and for good reason – cases like these do not get prosecuted.
In fact, I would bet this is the VERY first time a member of law enforcement has ever had to assert Stand Your Ground immunity following a law enforcement shooting.
Deputy Peraza’s Motion to Dismiss
Deputy Peraza’s Motion to Dismiss asserts that he acted lawfully under Florida’s Stand Your Ground law and is therefore immune from prosecution, as the law dictates. He claims that he acted in his own self defense as well as in the defense of his fellow deputies who were present and a large number of civilians who were all around them.
On the day of the shooting, Deputy Peraza explains that he received a dispatch about a man walking down North Dixie Highway with a rifle. He immediately drove to the area and saw Jermaine McBean openly walking with the rifle along the roadway. Sgt. Richard Lacerra also arrived on scene and saw the same thing.
Rather than rushing McBean or tackling him on sight, the deputies exercised restraint and waited for backup. However, the situation changed when McBean left the roadway and entered the Green Tree Apartments.
Deputy Peraza explained he had worked in that police zone before and was familiar with the apartment complex. Knowing it was full of people made both deputies fear that a dangerous situation was about to explode.
They reacted by turning into the Green Tree Apartments, exiting their police cars, and starting a foot chase after McBean. When they caught up to McBean, Sgt. Lacerra, who is a BIG DUDE (I know him from other cases – he’s a bear, don’t mistake it) yelled at McBean multiple times to “Stop!”, “Broward Sheriffs Office!”, “BSO, stop!” and “BSO, police!”, but McBean did not respond and kept walking.
At some point thereafter, McBean stopped and looked over his shoulder at deputies. This is important because that means he saw them. According to Deputy Peraza, it is also the second time he saw McBean notice law enforcement (McBean also saw Deputy Peraza’s police car before turning into the apartment complex).
Just as he stopped, Sgt. Lacerra yelled at McBean to “Drop the weapon!” and “Don’t turn around!”
Instead of dropping the weapon and refraining from turning around, McBean removed the rifle from his shoulders, turned around, and pointed the rifle at Deputy Peraza and Sgt. Lacerra.
At that moment in time, the Motion to Dismiss explains that Deputy Peraza was thinking the following:
- He is watching an active shooter situation unfold before his eyes;
- The gunman’s actions communicate that he is about to start shooting;
- This is happening in a dense residential area;
- Civilians are all around them, including children;
- McBean is armed with a menacing looking camouflage rifle;
- McBean is acting bizarre, in that he brazenly walked down North Dixie Highway and through the Green Tree Apartments while openly armed with the rifle;
- McBean was not responding to loud and clear commands to stop, drop his weapon, and not turn around;
- McBean took notice of law enforcement’s presence, both on the street and before turning around, yet he persisted;
- In a split second, McBean removed the rifle from his shoulders, turned toward Deputy Peraza and Sgt. Lacerra, and pointed the rifle at them;
- That McBean’s next move, in the coming fraction of a second, was to open fire on deputies, including Deputy Peraza;
- When McBean pulls the trigger, Deputy Peraza and those around him could be killed or suffer great bodily harm.
Fearing that McBean was about to open fire, Deputy Peraza, in a very controlled manner, fired three shots at McBean. All landed in the front of his body, thus proving that McBean was in fact facing Deputy Peraza at the moment he was fired upon.
Immunity From Prosecution:
Florida’s Stand Your Ground Law
Before we go there, you need to understand Florida’s Stand Your Ground law… here’s a crash course:
I. Fight or Flight
Florida’s Stand Your Ground was written to empower victims of crime by placing the decision of fight or flight in the hands of the victim… not a politician in Tallahassee and not a myopic prosecutor sitting behind a desk in an office somewhere.
That is where the name “Stand Your Ground” from… the old law requiring retreat was removed and it was replaced with the right to stand ground and fight back. Like any other right, a person has the choice to either exercise the right or not exercise the right.
You can vote or you can abstain from voting. You have the right to remain silent and the right to have a lawyer, or you can waive those rights. You have the right to bear arms or not bear arms. It is entirely up to you.
So too with Stand Your Ground – under certain circumstances the choice of fight or flight is yours to make. It isn’t decided for you by the Florida Legislature.
When life or death is decided in fractions of a second, Stand Your Ground law eliminated the additional danger law abiding citizens had to incur by wasting precious time pondering the “Victim’s Dilemma”: Do I risk my life trying to escape or do I risk my freedom and material things to guarantee I survive?
Under Florida’s Stand Your Ground law, a person is immune from civil and criminal prosecution in cases where the use of force is justified. That means they can NOT be sued for money and they can NOT be prosecuted for a crime.
According to Fl. Stat. §776.012 –
- Deadly force is justified to defend against death, serious bodily injury, and forcible felonies;
- However, the threat of death, serious bodily injury, or forcible felony must be IMMINENT;
- The law applies to self defense and defense of others;
- The person claiming Stand Your Ground immunity cannot be committing a crime or be in a place where he/she is not allowed.
Keep in mind this synopsis is just that – a synopsis. If you need to know when you are allowed to kill someone under Florida’s Stand Your Ground law, either take your chances and read the law yourself or hire a lawyer for advice. Do NOT only rely on this discussion.
That said, here are some examples of what NOT to do:
You can’t use deadly force against someone who insults your mother in a bar. You also can’t leave the bar, get your gun, come back to the bar, and blast someone who threatened to kill you with a switchblade – the threat has to be imminent. Finally, if you are burglar or trespassing in someone’s home in the middle of the night, no, you cannot rely on Stand Your Ground in a fight against the homeowner.
II. Immunity from Prosecution
You also need to understand what “immunity from prosecution” means. Unlike an alibi, misidentification, insanity, or even traditional self defense, Stand Your Ground is not an “affirmative defense” to be debated at trial.
Immunity from prosecution means the person can NOT be prosecuted in the first place.
It means it is against the law to charge the person with a crime. It is against the law to arrest them. It is against the law to force them to litigate a case in the courts. It is against the law to convict them of a crime or sentence them for one.
Immunity = You can’t touch me.
A similar example can be found in the Statute of Limitations. Once the time limit for filing a criminal case passes, the prosecution is barred from pursuing the case. Another example is the Speedy Trial Rule. In Florida, prosecutors must press felony charges within 175 days of arrest. If they fail to do so, they are barred from pursuing the case.
This is basic stuff any first year prosecutor learns.
III. The Court Battle
This is where things get interesting. You can expect the hearing on this case to last at least a few days. I am sure both sides will spend a lot of time questioning and cross-examining witnesses, many of which will likely be experts. However, when the Judge conducts this hearing and listens to the evidence, he must apply some basic rules.
First, the law requires the Judge to consider the circumstances as they appeared to Deputy Peraza.
Second, the ultimate decision is whether or not Deputy Peraza’s actions were reasonable – not ultimately correct, but REASONABLE.
This means, for instance, the fact that the rifle in question turned out to be an unloaded air rifle is absolutely meaningless. To justify deadly force, it need only appear real to Deputy Peraza. Looking at the photo of this thing, it is clear to me that this is a non-issue… Deputy Peraza was right to fear the gun was real.
This ALSO means that the whole nonsense with the ear buds is also meaningless.
A person could be wearing ear buds for a number of reasons – one of which is to rock out to music as you go on a shooting rampage. It has happened before.
While McBean’s death was tragic, he is the one solely responsible for making communication impossible – and that assumes he really didn’t hear Sgt. Lacerra even though there is evidence to the contrary.
Here’s a tip: If you are going to freak people out by walking down the street with something that looks like a hunting rifle, at least make sure you can hear whats going on around you.
Here’s another tip:If you are going to freak people out by walking down the street with something that looks like a hunting rifle, stop and drop the second you see police.
IV: Will the Judge Dismiss the Case?
Ultimately, I have no idea what the Judge will do. I gave up predicting judges and juries long ago. Real trial attorneys don’t do that. Litigation is one of the most unpredictable endeavors possible.
That said, everything I know as a lawyer, as a former prosecutor, as a criminal attorney, and as human being with common sense tells me that this motion is true, it is correct, and it absolutely should be GRANTED.
Deputy Peraza was faced with a very dangerous situation and he acted in the public’s best interest. He didn’t make these circumstances. He didn’t put a gun in McBean’s hands. He didn’t force McBean to walk down Dixie Highway with a camo hunting rifle. He didn’t force McBean into a busy residential area full of people and children. He didn’t prevent McBean from hearing Sgt. Lacerra.
Deputy Peraza is not the responsible party here. Although he acted responsibly. He did his job as a cop.
He protected the residents of the Green Tree Apartments from a threat to their lives. He protected himself and he protected his fellow officers.
He did exactly what we all wish happened in every other shooting in this country from Sandy Hook, to Columbine, to Aurora, Fort Hood, San Bernadino, the Washington Navy Yard, Umpqua Community College, and others.
When the Motion to Dismiss goes to court prosecutors are going to be shamed. If they had the guts, they would voluntarily dismiss this case on their own – and they know it.
What You Can Do
Show your support for Deputy Peraza by signing the Change.org petition. Send a clear message that this type of prosecution doesn’t belong in YOUR courthouse. I am and this is my message: