Miami Dolphins

Attorney to judge: Throw out Mark Walton’s gun charge. Cops violated his rights.

Dolphins RB and former Cane Mark Walton talks about his troubled off season

Miami Dolphins running back and former Miami Hurricane talks about his troubled off season, May 11, 2019.
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Miami Dolphins running back and former Miami Hurricane talks about his troubled off season, May 11, 2019.

Dolphins running back Mark Walton wants his felony weapons charge dropped because “his due process rights were violated by egregious police misconduct.”

That’s according to his defense attorney, who filed a motion to dismiss the charge late last month.

A hearing on the motion is set for Friday — Day 2 of Dolphins training camp.

If Circuit Court Judge Teresa Mary Pooler rules in Walton’s favor, it would not only not only resolve the most serious of his three active criminal cases, but also help mitigate any punishment meted out by the NFL.

The league has not yet decided what, if any, suspension Walton will serve regarding his three arrests earlier this year, but said the matter remains under review.

Police say they found an illegally concealed 9 mm carbine rifle with several loaded clips and marijuana in a rented BMW registered to Walton, which he allegedly fled during a traffic stop in north Miami-Dade on March 12.

Body cam footage that has since gone viral captured one of the two responding Miami-Dade police officers tasing a man who emerged from the car. He was able to escape on foot after the voltage dropped.

The officers, Bryan Fernandez and John Childress, later determined that Walton was the man who ran, even though they did not immediately recognize the former University of Miami star and the body cam footage that’s been made public does not seem conclusive.

Michael Gottlieb, Walton’s attorney, argues that the very footage that made the arrest so infamous should be what gets the charge thrown out — not for what it shows, but what it doesn’t.

Childress’ body cam fell off when he began his chase through West Little River and captured nothing of value. Meanwhile, Fernandez turned the camera off twice during the stop, chase and subsequent investigation — which Gottlieb said was in violation of standard operating procedure.

Here’s why the defense says that’s important: There’s no video evidence of where the driver’s or passenger’s seats were positioned before cops searched the car.

“After the search has taken place, and the passenger seat-back and seat-rest have both been manipulated, a firearm has been located, a bag has been retrieved and is actively being searched, the [body cam] is turned on again,” Gottlieb wrote. “The entire issue in this case as it relates to the firearm is the position of the car seat in relation to the firearm for purposes of determining whether said firearm was ‘readily accessible.’”

Florida law allows legal gun owners to have one in their car without a concealed carry license “if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use.”

In other words: If the front seats were positioned in a way in which the rifle was not readily accessible, perhaps it was not illegally stored.

And since there was no body-cam footage of how the seats were positioned before the search, and neither officer remembers the original location of the seat bottoms or backs before moving them during their search, the burden to prove it was not within reach shifts to Walton, Gottlieb says. That could cause Walton to take the stand in violation of his Fifth Amendment rights.

Gottlieb in a separate filing also seems to raise the possibility that there was a second, unidentified person in the car with Walton that night, and perhaps he was the one police tased.

After the man who cops say was Walton fled, they determined he was their suspect by finding his rental agreement and then accessing his driver’s license photo in a police database.

The defense argues this was “so suggestive as to give rise to a substantial likelihood of irreparable mis-identification” and violated Walton’s due process rights.

After the March arrest, Walton lost his job, cut by the Bengals. He later signed with the Dolphins following a successful tryout and has an excellent chance to make the team — assuming he has no additional run-ins with the law.

“I think people deserve a second chance,” Dolphins coach Brian Flores said at the time. “I believe that. I think that’s the case. I don’t want to judge people based on one incident, two incidents. I think it’s a case by case situation for a player and for people in general. That’s kind of my stance.”

Free agent cornerback Tyler Patmon, who spent time with the Dolphins in 2015 and last played for the Jaguars, re-signed with Miami on Monday after working out with him earlier in the day.