Probe of re­spon­ders crim­i­nal in na­ture

Agency in­ves­ti­gat­ing if po­lice who re­sponded to Park­land school shoot­ing acted legally

South Florida Sun-Sentinel (Sunday) - - Front Page - By Me­gan O’Matz

PARK­LAND — Florida’s top law en­force­ment agency says it is in­ves­ti­gat­ing whether po­lice com­mit­ted crimes while re­spond­ing to Fe­bru­ary’s mass shoot­ing at Mar­jory Stone­man Dou­glas High School.

Im­me­di­ately af­ter the shoot­ing, Gov. Rick Scott or­dered the Florida Depart­ment of Law En­force­ment to in­ves­ti­gate law en­force­ment’s re­sponse to the shoot­ing, in­clud­ing ac­tions by school deputy Scot Peter­son, who took cover out­side rather than rush into the build­ing as teach­ers and chil­dren were be­ing shot.

Now, the FDLE tells the South Florida Sun Sen­tinel that its in­ves­ti­ga­tion is crim­i­nal in na­ture. The claim sur­prised le­gal ex­perts and raised ques­tions about whether po­lice could be held crim­i­nally li­able for fal­ter­ing and not swiftly tak­ing down the shooter.

In ad­di­tion, ex­perts ques­tion whether the la­bel of a crim­i­nal in­ves­ti­ga­tion is ac­tu­ally de­signed to shield pub­lic records from view. Florida law al­lows law en­force­ment to with­hold some records re­lated to ac­tive crim­i­nal in­ves­ti­ga­tions.

Be­sides Peter­son, sev­eral other deputies, un­sure of where the shooter was, took cover be­hind cars dur­ing the shoot­ing. Po­lice did not en­ter the school un­til 11 min­utes af­ter the first shot. Seven­teen peo­ple, 14 of them stu­dents, died as a gun­man marched through the school with an AR-15

ri­fle.

The FDLE’s com­mu­ni­ca­tions direc­tor, Gretl Plessinger, said the agency is in­ves­ti­gat­ing “if there was any­thing il­le­gal done by the law en­force­ment of­fi­cers who re­sponded to the scene that day.” She would not iden­tify the tar­get of the in­ves­ti­ga­tion, but she said it is not Broward County Sher­iff Scott Is­rael,

“There have been a lot of blog­gers who have as­sumed that we were look­ing at the sher­iff,” Plessinger said. “We’re not.”

Pinel­las County Sher­iff Bob Gualtieri, who heads a fact-find­ing com­mis­sion into the Feb. 14 tragedy, told the Sun Sen­tinel that the crim­i­nal in­ves­ti­ga­tion “in­volves the re­sponse and Peter­son and a num­ber of things.” He said he was not at lib­erty to say more.

The FDLE would not re­veal what po­ten­tial laws Peter­son or any other of­fi­cers may have bro­ken that day, say­ing it will be up to the Broward State At­tor­ney’s Of­fice to de­cide. The State At­tor­ney’s Of­fice de­clined to clar­ify the mat­ter.

“We do not know what the po­ten­tial charges could be un­til the ev­i­dence is pre­sented,” said Con­stance Sim­mons, spokes­woman for the state at­tor­ney.

Le­gal ob­servers say an of­fi­cer could be pros­e­cuted for of­fi­cial mis­con­duct for fal­si­fy­ing or con­ceal­ing records. But such pros­e­cu­tions typ­i­cally in­volve a false ar­rest.

“If you could show the of­fi­cer was AWOL or un­der the in­flu­ence, there might be some case that he was in­volved in some sort of of­fi­cial mis­con­duct that im­pacted his abil­ity to re­spond to these events,” said for­mer New York po­lice of­fi­cer Eu­gene O’Don­nell, now a lec­turer at the John Jay Col­lege of Crim­i­nal Jus­tice in Man­hat­tan and a na­tion­ally rec­og­nized ex­pert on polic­ing is­sues.

It’s “in­con­ceiv­able,” how­ever, he said, that the state would pur­sue a crim­i­nal case on the grounds that Peter­son made a “tac­ti­cal judg­ment” not to in­ter­vene in a mass mur­der. Peter­son had a hand­gun while the in­truder wielded a semi-au­to­matic ri­fle.

Fort Laud­erdale crim­i­nal de­fense at­tor­ney Bruce Zimet, who is not in­volved in the mat­ter, said: “Cer­tainly, do­ing a bad job is not crim­i­nal. How­ever, ly­ing about what you did, if you’re a law en­force­ment of­fi­cer, could be, un­der cer­tain cir­cum­stances, crim­i­nal in na­ture.”

Told that the FDLE is con­duct­ing a crim­i­nal in­ves­ti­ga­tion, Jeff Bell, pres­i­dent of the Broward Sher­iff ’s Of­fice Deputies As­so­ci­a­tion, said he was “dumb­founded.”

“I didn’t even know they were do­ing that,” he said.

The union rep­re­sents 1,300 Broward deputies. Bell said a cou­ple of dozen deputies were called in by the FDLE as wit­nesses but he knew of no deputy who has been in­ter­viewed as a sus­pect of a crime.

A crim­i­nal con­vic­tion against Peter­son could strip him of the $8,702 monthly pen­sion he be­gan col­lect­ing, shortly af­ter turn­ing in his badge a week af­ter the slay­ings. Un­der Florida law, a pub­lic of­fi­cial can lose re­tire­ment ben­e­fits if con­victed of cer­tain felonies in­clud­ing of­fi­cial mis­con­duct.

La­bel­ing the state in­quiry as “crim­i­nal” has other po­lit­i­cal and strate­gic ben­e­fits, as well.

It blocks the me­dia from ac­cess­ing records un­der Florida’s open records law and in­ter­fer­ing with the flow of in­for­ma­tion re­leased by Gualtieri’s com­mis­sion, the Mar­jory Stone­man Dou­glas High School Pub­lic Safety Com­mis­sion, which was cre­ated by law last March to in­ves­ti­gate sys­temic fail­ures re­lated to the shoot­ing.

The 16-mem­ber com­mis­sion has no crim­i­nal author­ity but is housed un­der the FDLE. It must pro­duce a re­port to the gover­nor and the Leg­is­la­ture by Jan. 1.

The FDLE said its crim­i­nal in­ves­ti­ga­tion also will not be com­pleted un­til the be­gin­ning of next year.

The Sun Sen­tinel re­quested tran­scripts or sum­maries of in­ter­views of com­mis­sion wit­nesses, but the FDLE said the records are pro­tected from pub­lic view be­cause they re­late to the crim­i­nal pros­e­cu­tion of the shooter, Niko­las Cruz, as well as the crim­i­nal in­ves­ti­ga­tion into law en­force­ment’s re­sponse.

Sher­iff Gualtieri said pub­licly in June that the com­mis­sion had “iden­ti­fied lit­er­ally hun­dreds, hun­dreds of peo­ple that need to be in­ter­viewed.”

Law en­force­ment of­fi­cers who work for the FDLE or the Pinel­las County Sher­iff’s Of­fice are con­duct­ing the in­ter­views, he said this week, and the com­mis­sion is shar­ing in­for­ma­tion with the FDLE’s Of­fice of Ex­ec­u­tive In­ves­ti­ga­tions.

That of­fice takes or­ders from the gover­nor and “con­ducts com­plex cases where pub­lic of­fi­cials are sus­pected of crim­i­nal ac­tiv­ity,” ac­cord­ing to its web­site.

Blur­ring of the lines be­tween a crim­i­nal in­ves­ti­ga­tion and the com­mis­sion, how­ever, could prove prob­lem­atic.

The com­mis­sion has sub­poe­naed Scot Peter­son to tes­tify at its meet­ing in Oc­to­ber. His lawyer de­clined to com­ment this week on whether Peter­son will ap­pear.

Ear­lier this month, Gualtieri was asked whether Peter­son could face crim­i­nal charges. He said, “That’s part of what’s be­ing in­ves­ti­gated by the Florida Depart­ment of Law En­force­ment.”

At the same time, he said he saw no ba­sis for Peter­son to in­voke his Fifth Amend­ment right to refuse to tes­tify be­fore the com­mis­sion. The amend­ment pro­tects a per­son from mak­ing in­crim­i­nat­ing state­ments that can be used against him in a crim­i­nal case.

Frank LoMonte, ex­ec­u­tive direc­tor of the Joseph L. Brech­ner Cen­ter for Free­dom of In­for­ma­tion at the Univer­sity of Florida, said po­lice agen­cies of­ten overuse the crim­i­nal in­ves­ti­ga­tion ex­emp­tion un­der Florida’s pub­lic records law to with­hold more de­tails of a crime than nec­es­sary to avoid com­pro­mis­ing a case.

“I don’t hear a lot of sce­nar­ios like this one, though, where there is un­cer­tainty as to whether a crime even ex­ists or not,” he said.

Un­der Florida’s pub­lic records law, an “ac­tive” crim­i­nal in­ves­ti­ga­tion must be one in which there is a “rea­son­able, good faith an­tic­i­pa­tion of se­cur­ing an ar­rest or pros­e­cu­tion in the fore­see­able fu­ture.”

“This is one where it’s re­ally dif­fi­cult to see what crime could be un­der in­ves­ti­ga­tion,” LoMonte said.

“I don’t hear a lot of sce­nar­ios like this one, though, where there is un­cer­tainty as to whether a crime even ex­ists or not.”

Frank LoMonte, ex­ec­u­tive direc­tor of the Joseph L. Brech­ner Cen­ter for Free­dom of In­for­ma­tion

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