Miami Beach

Police will face no charges in 2011 Memorial Day shooting on Miami Beach

In this screengrab taken from a YouTube video, Herisse’s car is shown speeding down a Miami Beach street Memorial Day weekend as officers surround it with guns drawn and fire.
In this screengrab taken from a YouTube video, Herisse’s car is shown speeding down a Miami Beach street Memorial Day weekend as officers surround it with guns drawn and fire. YouTube user Shawn Don

Prosecutors will not charge the police officers who killed a motorist on South Beach in a hail of bullets after a chaotic chase during Memorial Day weekend four years ago.

In a long-awaited ruling on the controversial incident, the Miami-Dade state attorney’s office officially ruled Tuesday that the 12 officers were “legally justified” in killing Raymond Herisse after he plowed into several cars and nearly ran over several bicycle cops. Police bullets — over 100 were fired in all — also wounded four bystanders.

Though opening fire on a Collins Avenue teeming with a holiday crowd might not have been a safe choice, prosecutors decided that under Florida’s “fleeing felon” law, the officers acted lawfully in trying to keep Herisse from hurting anyone.

“This was not a routine stop of an individual who had committed a traffic violation,” prosecutors wrote in an 87-page final memo detailing a May 30, 2011, shooting that drew national attention. “The surrounding officers obviously and correctly viewed this as a dangerous and potentially desperate suspect.”

The incident spurred a slew of lawsuits from outraged families, policy changes at the Miami Beach police department and scrutiny on the law enforcement presence during a holiday week that attracts tens of thousands of revelers, many of them black.

The release of the final report comes as fatal officer-involved shootings, particular the killing of an unarmed black teenager in Ferguson, Missouri, during a scuffle with a white officer, have put police use of force under increasing scrutiny.

The Herisse shooting ultimately led to a key policy change at the Miami Beach Police Department, where officers have been involved in a series of controversial or embarrassing episodes in recent years. In October, newly appointed Chief Dan Oates announced that officers would no longer be allowed to shoot at moving cars — a policy long in place across the bay in Miami.

Late Tuesday, State Attorney Katherine Fernandez Rundle met with Herisse’s relatives and their attorney to explain the decision.

“The family is disappointed in the outcome, but they are very happy that questions they’ve had for four years have been answered, that they have closure,” said lawyer Marwan Porter. “Raymond did not shoot a gun at any officer. That was a concern of theirs.”

Porter said the family is also pleased that Miami Beach has changed its policy on shooting at moving cars. Now, lawsuits by the Herisse family and three wounded bystanders — Cedrick Perkins, Carlson St. Louis and Sarah Garcia — can proceed in civil court, where the standard for proving liability is looser than proving guilt before a criminal jury.

“We believe there were clear policy defects that ultimately led to the death of a young man who, at worst, was driving recklessly,” Porter said.

Garcia’s attorney, Bradley Winston, said he can finally examine all the police evidence collected during the investigation.

“The delay in closing this criminal investigation has been inexcusable,” he said.

Despite criticism about delays in the probe, many legal observers said the decision was not unexpected.

State law gives police officers wide leeway to use deadly force while on duty. Florida’s “fleeing felon” law has been on the books since 1975, having withstood many legal challenges.

No Florida police officer has been charged for an on-duty fatal shooting since Miami Police Officer William Lozano killed two men on a speeding motorcycle in 1989. An appeals court later overturned his manslaughter conviction, and Lozano was acquitted at a second trial.

For Miami-Dade prosecutors, the probe entailed an exhaustive review of evidence — including trying to link every bullet fired to an officer’s gun — drawn from three separate shooting scenes along Collins Avenue. The memo, nearly four years in the making, provides the first detailed chronology of how the episode unfolded.

The backdrop: Urban Beach Week, which year after year draws tens of thousands of revelers to South Beach during the lead up to Memorial Day. That night, officers from departments including Miami Beach, Miami-Dade and Hialeah were on patrol.

For some residents, the throngs of visitors are considered a massive headache, creating traffic jams and raising concerns about crime. Civil rights advocates in turn have complained about racial profiling and a heavy-handed police presence to monitor the predominantly African American crowd.

According to the final prosecutors’ report, Herisse was driving a borrowed Hyundai Sonata along Collins Avenue just before 4 a.m. when he began accelerating, then abruptly braking and “spinning his wheels” at least three times. Unknown to police at the time, Herisse’s blood alcohol content level was twice the legal limit.

At 16th Street, Hialeah Cmdr. Oscar Amago rode his bicycle up to the driver’s side door and ordered the man to turn off the engine. He later told investigators he feared the car would hit a pedestrian on a street packed with weekend revelers.

When Herisse refused to turn off the car, Amago opened the door and grabbed the man’s arm. But Herisse brushed him off, sharply veering left and knocking him over with the Sonata before speeding off, the report said. Amago suffered “minor injuries,” the report said.

His actions, according to prosecutors, constituted an aggravated assault or battery against a police officer. “Mr. Herisse was now a fleeing felon,” the report said.

At high speed, the Sonata barreled down Collins Avenue — at one point on the sidewalk, then against traffic — as people began scattering. Two uniformed police officers jumped out of the way at the last second, their bicycles struck by the car, which were briefly dragged under the vehicle, the report said.

In short time, the Sonata struck an Audi, a taxi and a BMW, all occupied with people. Herisse’s car lost its own fender and sustained notable damage.

After nearly hitting Hialeah officers Marlon Espinoza and Erik Martin, the Sonata stopped briefly in front of the Royal Palm Hotel. Espinoza tried banging on the driver’s side window to no avail.

“Police officers were faced with a Hobson’s choice of letting Mr. Herisse continue southbound on Collins Avenue, in which case other citizen’s lives would be in peril due to his reckless driving, or using whatever force they deemed necessary,” the report said. “Neither option was safe.”

Both officers fired at the Sonata. Prosecutors could not determine whether their bullets struck Herisse.

Herisse accelerated again, scattering the crowds again in the 1400 block of Collins Avenue. Then, Miami Beach officers Leon Azicri, Frederick Dominguez, Phillip Elmore, Kenne Espada, Derick Kuilan and Hialeah’s Ricardo Babich opened fire.

“Regardless of the wisdom of opening fire” amid the crowds, prosecutors wrote, “the inescapable legal conclusion is that the officers cannot be charged with a crime” because they were lawfully trying to arrest a fleeing felon, prosecutors wrote.

It was during this second volley of police gunfire that three of the bystanders were wounded, according to the memo written by prosecutors Frank Ledee and Reid Rubin.

Prosecutors mulled a misdemeanor charge of “culpable negligence” but decided they could not, under the law, prove that they had acted with a “reckless disregard” for people’s safety — when they were trying to prevent Herisse from harming the public.

The third and final shooting was captured on two separate videos shot by bystanders, and later uploaded to the Internet.

Herisse’s car zoomed forward, stopping at 13th Street. Investigators are unsure why he stopped — Herisse might have been wounded, or the car might have failed.

The Herisse family attorney has long insisted that the motorist was stopped long enough to be allowed to surrender. “He posed no threat to anyone,” Porter said last year.

But prosecutors said it was clear that when officers surrounded the car and began yelling for Herisse to show his hands and get out of the vehicle, he “refused to comply.”

Herisse continued moving around inside the Sonata. Two civilians directly in front of the Sonata also saw Herisse “moving from side to side and downward toward the bottom of the seat.”

One witness said he heard a police officer yell “He’s got a gun!”

Sixty-two seconds passed before officers opened the lethal volley of bullets.

What spurred the first officer to shoot might never be exactly known — not one officer gave a statement, even through an attorney. Under the law, no one under criminal investigation can be forced to give a statement, and it is not uncommon for police officers to decline requests for testimony.

But prosecutors could not discount that an officer might have believed Herisse was armed, especially because a generally vague radio call of “shots fired” had gone out during the car chase. They added that officers, by law, did not have to “wait and see if he actually displayed a gun” or see if he began “to drive toward them.”

Three days after the shooting, Miami Beach detectives said they found a gun wrapped in cloth under the driver’s seat, a discovery that raised skepticism among Herisse’s lawyers. A gunshot residue test on Herisse’s hands showed that he had not fired a weapon.

The 9 mm Beretta had been reported stolen years earlier from Lake Worth in Palm Beach County, where Herisse lived. Ballistics tests showed the gun had been used in an armed robbery in Lantana, prosecutors said.

An autopsy showed that Herisse suffered 16 gunshot wounds.

Miami-Dade prosecutors review all police shootings to see whether officers broke any laws. Miami Beach and Hialeah must now determine whether their officers broke any internal police rules.

“It will include determining whether our officers acted within policy, as well as whether our tactics, training or policies need to be changed. It will be an exhaustive review, and our results will be made public,” Chief Oates said in a statement Tuesday. “We will do our best to learn everything we can from this incident.”

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