South Florida Sun-Sentinel (Sunday)
Cops use Parkland to justify shootout
Experts say that may be a stretch for what happened in Miramar
By invoking the Parkland school shooting, police officers may be going too far to justify their actions in a police shootout that left four people dead last week in Miramar, some experts say.
Officers contend that the shooting at Marjory Stoneman Douglas High School in 2018 has made them more aggressive on the streets. No one wants to be criticized for standing by like Scot Peterson, the school deputy who was widely vilified last year for not confronting the Parkland shooter, according to police union leaders.
Those arguments are flawed and misleading, according to experts. They could merely serve as cover for cops who may have gone too far, they say.
“The rationale should not be, ‘This is what we learned from Parkland,’” said Matthew Doherty, a retired Secret Service agent. “That’s apples and oranges.”
Seth Stoughton, a law professor at the University of South Carolina and former Tallahassee police officer, said anyone attempting to compare the two deadly encounters is “either not thinking it through or they are using it as cover — neither of which should be acceptable.”
On the day of the shootout, robbers held up a Regent Jewelers on
Miracle Mile in Coral Gables, then hijacked a UPS driver and led police on a wild chase. Once the robbers were boxed in by traffic in Miramar, they exchanged gunfire with at least 18 officers who were closing in on them. Killed in the shootout were the robbers, Lamar Alexander and Ronnie Jerome Hill, the UPS driver, Frank Ordoñez, and a commuter who was in his car, Richard Cutshaw.
“Parkland changed everything,” said Steadman Stahl, president of the Miami-Dade Police Benevolent Association. “We’re trained to engage the shooter. If they didn’t do it and something bad happened, [people would ask] ‘Why didn’t you engage them? Why did you allow this to happen?’ Cops now are told to be aggressive, he said. “It’s like a battlefield scenario,” he said.
Rod Skirvin, president of the Broward County Police Benevolent Association, brought up school cop Scot Peterson as part of the defense. “There was an outcry because the deputy didn’t go into a crowded school and start firing at [shooter Nikolas] Cruz,” he said. “The public wanted the deputy to go in and shoot at Cruz.”
But judging what happened in Miramar is impossible because the multiple police agencies involved won’t divulge specifics, including whose bullets killed Ordoñez and Cutshaw and who gave the order to shoot.
The FBI and Florida Department of Law Enforcement are investigating, and Broward prosecutors will review whether police officers were justified or broke the law. Cutshaw’s family on Friday demanded accountability after the shooting, just like Ordoñez’s relatives have wanted answers.
Robert Drago, who retired from the Broward Sheriff’s Office in 2017 as a lieutenant colonel, did not agree with the comparison between the Dec. 5 shootout and Parkland. But he does agree that Peterson’s criticism created ripple effects throughout South Florida law enforcement.
“No one wants to be vilified like Peterson,” he said. “Nobody wants to be the next guy to say he sat outside and didn’t go in.”
Drago said the Parkland shooting and the 1999 shooting at Columbine High School have influenced the way police respond to dangerous active shooter situations. Before Columbine, Drago said officers were told to wait for backup and SWAT teams. The large death toll in 1999 pushed many departments to shift their language to say officers “may” go in to an active-shooter situation, Drago said.
That was the language in the Broward Sheriff’s Office’s policy during the Parkland shooting and the language Peterson’s attorney has cited while defending his client in his pending criminal case. After the response to the way the Parkland shooting was handled, the policy changed; today it says officers “shall” intervene in active-shooter scenarios.
The FBI defines an “active shooter” as someone who is “actively engaged in killing or attempting to kill people in a populated area.” While most experts agree two robbers firing at police on a crowded street technically fits that definition, they disagreed that the situation is equivalent to someone with a specific intent to kill as many people as possible.
Were robbers ‘active shooters’?
The term “active shooter” instead is often associated with mass shooters such as Nikolas Cruz, the former student who killed 17 people and wounded 17 others at Stoneman Douglas High last year. There is a clear difference between school shooters intent on murdering until they are killed or take their own life, and shooters trying to escape, Stoughton said.
“We now have 20 years of
experience since Columbine that tells us an active shooter in a school requires an immediate and aggressive response,” he said. “But we also have decades of data that tells us that an immediate and aggressive response in other situations isn’t always appropriate.”
Doherty, who watched live video of the Miramar shootout on television, said he did not see a mass shooting on the scale of Parkland. “I see a robbery going bad. That is not an active shooter as we know it today.”
John J. Baeza, a former New York City Police detective and expert witness with the police consulting firm NYPDTruth.com, said despite the flying bullets and the large number of bystanders, police were wrong to approach the UPS truck during a hostage situation. “These cops made a conscious decision to get out of their car. Why did they leave the cover of their car?” he asked.
Baeza said it was an even worse decision to use the cars of bystanders as shields once bullets started flying. “You do not ever use an innocent bystander as a shield or as cover or concealment,” he said. “That would be like going into a school shooting and using a student in front of you as a shield.”
Many who have defended the actions of police on Dec. 5, such as Stahl, said the robbers might have endangered more lives by leaving the UPS truck and killing others in the street or trying to carjack another vehicle.
However, Stoughton said deciding on an aggressive
use of force shouldn’t be based on “what people think might have happened.”
To determine whether officers were in the right in using that force, he said they can use only the information available to them in the moment as well as their training. Based on those factors, Stoughton said, it is possible officers made a bad choice shooting on a crowded street with a hostage present, but also that the choice might still be legally justified.
“That is sometimes the case,” he said.
Legal justification
Many experts contacted by the South Florida Sun Sentinel did not agree with the way that police officers handled the shootout.
Others questioned the strategy of the chase and argued more could have been done to stop it before it ever escalated to a public shootout.
But most agreed it will be legally difficult to argue the officers who opened fire that afternoon were not legally justified in doing so.
Kenneth Harms, who served as the Miami-Dade police chief between 1978 and 1984, said that protecting innocent life is the utmost goal of police officers. But even when hostages and bystanders are present, the officers’ training gives them latitude to shoot when they believe their life or the lives of others might be at risk.
Harms has helped a number of police agencies in South Florida author useof-force policies and said they are generally modeled after standards set by the Commission on Accreditation for Law Enforcement Agencies, which accredits law enforcement agencies across the U.S.
According to the CALEA website, the agency accredits the policies of the Miami-Dade Police Department, Florida Highway Patrol and the Miramar Police Department.
Their standards say, “An officer may use deadly force only when the officer reasonably believes that the action is in defense of any human life in imminent danger of death or serious bodily injury.”
The deadly force policy at the Pembroke Pines Police Department largely follows that wording. However, the policy also states use of deadly force is prohibited “when there is the likelihood of inflicting death or serious injury” to those other than the intended target. The policy also says deadly force is prohibited when “circumstances do not provide a high probability of the intended target being hit.”
The department declined to share policies related to active shooters and hostages or barricaded subjects. The Miami-Dade and Miramar police departments didn’t respond to requests for their policies.
Stoughton said that before the armed robbers began firing, they would have been considered barricaded subjects with a hostage. He said police are generally instructed to slow things down and not react with fire in that situation.
Once the robbers made the decision to shoot at cops among other bystanders, the situation escalated into one which could justify return fire, he said.
The question, which Stoughton admitted is often easier to answer in hindsight, is: How dangerous did the situation become to officers and bystanders? “How dangerous would it have been to fall back? How dangerous would it have been to push forward?”
Brian C. Smith, a former police chief who is a national law enforcement trainer for the National Association of Chiefs of Police, said the officers’ decision in a moment like that is always difficult and happens in split seconds.
Some of the families who suffered the most from the Parkland shooting said they felt for the two innocent men who lost their lives, but also believed police made the right decision — even if it was a difficult one.
Andrew Pollack, whose daughter, Meadow, was killed in the Parkland shooting, echoed Stahl in saying that had the police not fired, the robbers could have killed far more than two innocent people. “You have to go in. Every officer in the country knows that from Parkland. When there’s shots you go toward the gunshots,” he said.
Fred Guttenberg’s daughter also was among the students murdered at Stoneman Douglas, but he said he was conflicted about the response by police in Miramar. “Listen, I’ve been thinking about this — these police officers are damned if they do and damned if they don’t,” Guttenberg said.
However, when comparing the officers in Miramar who fired to Peterson, who stood outside of Marjory Stoneman Douglas High, he said the risk was worth it if meant more lives spared.
Guttenberg said that if Peterson had engaged the Parkland shooter, a student could have been injured or killed when he opened fire in the hallway. But, he said, there could have been fewer deaths.
“I only wish Peterson would have taken the same kind of risk,” Guttenberg said.