Fred Grimm

Fred Grimm: Prosecutors had no case in the police Taser death of a Miami Beach tagger

Israel Hernandez-Llach
Israel Hernandez-Llach Courtesy of family

A Taser death almost always brings this kind of disbelieving reaction. “He was killed for that?”

Tasers are supposed to give police officers a non-lethal means of dealing with uncooperative or combative miscreants involved in minor crimes. But when someone dies after getting zapped by a police stun gun, the community focuses on the no-account nature of the offense.

We cringe in disbelief at the lack of proportionality with the news that police “Tased to death” someone amid a schizophrenic episode or in the throes of a psychotic drug reaction or because of a drunken refusal to surrender. When young Israel Hernandez-Llach died in 2013 after he was hit with a pair of electric Taser prongs, the public demanded to know: “How could some kid be killed over graffiti?”

Community dismay over the Hernandez-Llach death re-erupted Thursday after the Miami-Dade State Attorney’s Office announced the decision not to charge the Miami Beach police officer who had fired the fatal Taser jolt. The 18-year-old Hernandez-Llach, who had been surprised by police while tagging a vacant storefront at Collins Avenue and 71st Avenue, was attempting to flee when he unwittingly found himself running straight at Officer Jorge Mercado.

According to the state attorney’s report, Mercado fired his X26 Taser from about seven feet away at the oncoming Hernandez-Llach. The Miami-Dade Medical Examiner’s Office reported that one of the dual electric darts happened to hit the skinny tagger on the left side of his chest between the fifth and sixth ribs, “the region where there is the least skin-to-heart distance.”

Hernandez-Llach collapsed and died of heart failure. It was tragic bad luck. It was not a crime. Not under Florida law.

As my Herald colleague David Ovalle pointed out, state law gives police officers so much license in their use of “reasonable force” that there hasn’t been a police officer anywhere in Florida charged with an on-duty shooting with a firearm since 1989. That last infamous case, when Miami police officer William Lozano shot an oncoming motorcyclist in Overtown and killed both the driver and his passenger, eventually ended in an acquittal.

The Broward state attorney pursued misdemeanor charges against a Hallandale Beach police officer accused of the unwarranted Tasing and choking of an unruly prisoner in 2005, but a county court jury deliberated only 24 minutes before acquitting the cop.

Finding criminal charges that would stick in the Hernandez-Llach case would have been even a tougher challenge for prosecutors. The outlaw tagger, who signed his illicit street art “Reefa,” had eluded his police pursuers through the streets and alleys of Miami Beach for a third of a mile before he rounded a corner and blundered toward Officer Mercado. According to the state attorney’s report, the on-coming Reefa ignored Mercado’s order to stop.

Remember, this incident was unfolding in Florida, a state with a radical “Stand Your Ground” self-defense law for civilians and which grants police officers even more latitude in confrontations. With the teen running headlong in his direction, Mercado could have legally unholstered his .40-caliber Smith & Wesson pistol and opened fire. State law holds that a police officer is “justified in the use of any force” to capture a fleeing felon. Apparently, the cost of erasing the swirling wave-like images that Reefa had sprayed across the doors, windows and walls of the vacant storefront would have pushed his transgression over the $1,000 threshold that defines a felony.

Instead, Mercado reached for his “conducted electrical weapon,” which is classified as a non-lethal device under Florida law. The state attorney report noted, “No case in Florida law has ever determined that a stun gun qualifies as a deadly weapon by its ordinary use as a matter of law.” Mercado, as part of his Taser training, had himself been shot with a stun gun. (Law enforcement’s assumptions about the safety of electronic disabling devices were illustrated, however stupidly, by five guards who were fired or forced to resign from their jobs at three Florida state prisons in 2009 after they jolted 43 children with stun guns during Take Your Sons and Daughters to Work Day.)

Perhaps the legal definition of a Taser underestimates the potential lethality of devices designed to temporarily disable human targets with a 50,000-volt surge of electricity. According to Amnesty International, between 2001 and 2008, 351 people in the United States died after being shocked by police Tasers. The blog Electronic Village claims to have documented another 283 Taser-related deaths in the U.S. between 2009 and 2014.

Except the alternative seems to be bullets and billy clubs.

“We believe Tasers save lives,” a Miami-Dade grand jury declared in a 2004 report on police encounters with the mentally ill. “Many community residents may take issue with this recommendation, as they believe it constitutes mistreatment of a segment of our population that is routinely misused and abused. However, the members of this grand jury have come to realize that in many cases, if police do not have ready use of a ‘less than lethal’ weapon, the likely end of the conflict will be the death of the mentally ill subject. Thus, when the choice is between five seconds of neurological incapacitation or death, we choose the former.”

In 2005, another Miami-Dade grand jury acknowledged incidents of abuse and the occasional death associated with stun guns and called for county police agencies to adopt stringent regulations. But that same panel concluded that “Tasers are still a tremendous benefit and tool for use by law enforcement leading to a reduction in both injuries and deadly force.”

Of course, there have been cases of unwarranted, sadistic use of Tasers by rogue police officers. (In April, a South Carolina policeman was sentenced to 18 months in a federal prison for shocking a handcuffed, mentally disabled woman eight times.) But without their Tasers handy, lousy cops would no doubt resort to low-tech beatings. One wonders if the kind of cops who beat black motorcyclist Arthur McDuffie to death in 1979, leading to devastating race riots in Liberty City and Overtown after their acquittal, would have been content in modern times to simply abuse their quarry with stun guns.

But in the Miami Beach case, the medical examiner found that Hernandez-Llach died after a single discharge of the duel-pronged gadget. He suffered no other apparent injuries. There was no evidence of torturous excess.

In this instance, a single jolt from a non-lethal weapon proved to be otherwise. As always happens in these cases, the death of young Reefa, however unintended, was juxtaposed against the utter pettiness of his offense. He died over graffiti.

A death stemming from such a mundane incident made for a wretched tragedy on Miami Beach. But in this state, it was just not a crime.

Related stories from Miami Herald