Law enforcement

Miami cops won’t face charges in 2009 foot-stop killing

 

dovalle@MiamiHerald.com

Prosecutors won’t charge two Miami cops who fatally shot a box cutter-wielding man believed to have tussled with officers during a 2009 traffic stop in Allapattah.

But because the exact nature of what unfolded that day remains unclear — the officers refused to give statements to investigators — the Miami-Dade state attorney’s office stopped short of saying the cops were justified in using deadly force against Corey McNeal.

The decision was detailed in a batch of final memos on police shooting cases released last week. In all, prosecutors have closed seven investigations in recent months, including the fatal shooting of a masked robber at a supermarket and a South Beach murder suspect who embarked on a violent crime spree.

The state attorney’s office, which has been criticized in the past for delays in finishing police-shooting investigations, has yet to complete the final two probes into a string of seven shootings of young black men in Miami that roiled the department between July 2010 and February 2011.

McNeal’s case largely escaped public scrutiny.

Miami officers Omar Ayala and George Diaz shot and killed McNeal on the evening of Nov. 14, 2009, after pulling him over while on foot at Northwest 22nd Street and Fifth Avenue. He was shot 27 times.

Prosecutors believed the officers were patting McNeal down — his palm print was found on the front of their police car — when the man began to resist violently.

After the shooting, detectives found McNeal lying on the ground with a metal box cutter near his right hand and a wad of cash clutched in his left, as though the cops had asked him to empty his pockets. McNeal’s DNA was found on the box cutter.

Ayala himself was “very shaken,” one sergeant who arrived on the scene told detectives. His shirt was untucked and missing a button. He had a cut on his lip and a scrape on his elbow.

Another sergeant who arrived at the scene heard Ayala say something “to the effect that ‘it happened so fast,’ ” according to the prosecutor’s final memo.

Prosecutors believed Ayala had been forced to the ground. The reason, according to the memo: the trajectory of many of the bullets that felled McNeal was upward, as though “McNeal [were] standing over him, very possibly with a box cutter in his hand.”

Javier Ortiz, the president of the Fraternal Order of Police union, said he believed the shooting was “100 percent justified.”

“It doesn’t take a rocket scientist to reasonably come to the conclusion that if someone is trying to stab you with a box cutter, you have the right to protect yourself,” he said.

Suspect’s history

McNeal, 35, was no stranger to Miami police officers.

Another officer told investigators that McNeal had been arrested two months earlier for battering his uncle. “McNeal said it would take more than handcuffs to arrest him the next time the police had a problem with him, they would have to put bullets in him,” the memo said.

And McNeal’s roommate, Gregory Bell, said McNeal had grown paranoid and tired of police officers “bothering him.”

In an unrelated incident, McNeal, a big man with a deep voice, had been shot in the head in 2006. He refused to let doctors remove the bullet, suffered seizures and took medication, leading to a “personality change,” his roommate told detectives.

On the night he tussled with officers and was killed, McNeal also had cocaine in his system, an autopsy showed.

But exactly why Ayala and Diaz chose to pull McNeal over is a mystery.

“There were no radio transmissions concerning this incident, by either police officers prior to the shooting,” prosecutor David I. Gilbert wrote in his final memo. “Nothing transmitted after the shooting sheds any light on the interaction between Corey McNeal and the police officers.”

He added: “It is reasonable to conclude that Mr. McNeal became upset by the stop, whether legally justified or not.”

While prosecutors did not rule the shooting justified, they determined that there “is no evidence to rebut a claim of self-defense.”

Although every citizen has the constitutional right to remain silent to avoid self-incrimination, it is not unusual for officers to give investigators a version of events, even if through a lawyer. In the McNeal case, the lack of cooperation weighed on prosecutors who might have ruled the shooting justified.

“We cannot justify unknown actions,” Gilbert wrote.

McNeal’s family initially filed a lawsuit against the city and the officers, but the case was dropped until prosecutors finished their investigation. His relatives are now mulling renewing the suit, said their lawyer, Spencer Rhodes.

The lack of cooperation of officers involved in shootings is often cited as a reason for the delay in closing such cases.

In Miami-Dade, prosecutors review every police shooting to see if an officer broke state law in firing a weapon. In Florida, on-duty officers are generally given wide leeway in using deadly force to protect themselves or others — and prosecutors statewide, including here, virtually never charge cops for manslaughter or murder.

The seven police shootings in 2010 and 2011 — all but two of the men killed were armed — roiled the administration of then-Miami Police Chief Miguel Exposito.

At the time, critics bemoaned the lack of information on the shootings released by Exposito, who deferred to prosecutors. He later feuded with Miami-Dade State Attorney Katherine Fernandez Rundle over long delays in ruling on police shootings.

So far, prosecutors have yet to rule on the August 2009 killing of Tarnorris Gaye, 19, who police say wielded a shotgun while riding a bicycle; and 16-year-old Joeell Johnson, shot and killed during a robbery sting.

Both men were killed by then-Officer Ricardo Martinez, who was later booted from the force after his arrest by federal authorities for fencing stolen Bluetooth headsets.

The state attorney’s office could not immediately say when the investigations would be complete.

In all, the state attorney’s office is currently reviewing 110 open cases, some stretching back several years, others occurring in recent weeks.

In other cases decided in the past few months:

• Miami-Dade Officer Julio Ramos was cleared of shooting and killing Manuel Guifarro, who was holding up a West Miami-Dade Winn-Dixie store in 2009 while wielding a realistic-looking pellet gun.

• Several officers were cleared of killing Michael Davis as he reached toward his waistband while being chased by cops in February 2009. His spree included killing a Miami teenager, terrorizing a South Beach family at knife-point and choking a North Miami-Dade mother who jumped from her third-floor apartment window to escape him. He had vowed he would not be taken alive, officers said.

•  Prosecutors also cleared officers in the August 2012 nonfatal shooting of Stephen Arnoux, a suspected burglar who led police on a dangerous high-speed chase in South Miami; Officer Jerry Davenport was cleared in the nonfatal 2009 shooting in a car chase involving motorist Dario Ovejero; and Hialeah Detective Luis Garcia was cleared in the nonfatal shooting of a suspected armed robber in August 2007.

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