News: “Focus on the Relevant Issues: aka Avoid ‘Stupid Think’ ”

Today’s post involves a decision out of the Florida Supreme Court holding that police officers acting in the course of their duties are as entitled to seek self-defense immunity under Florida law as are non-LEOs, as reported by the Seattle Times newspaper.

That’s decision is not what’s interesting about this story, however. What’s interesting about this story is the extent to which the news coverage and the people quoted engage in stupid think.

‘Stupid think’ is perhaps too strong a phrase—really, ‘ignorant think’ would be more accurate, but headlines are jealous of their letter-count, so for the moment we’ll stick with ‘stupid think.’

What is ‘stupid think’ in the context of self-defense law analysis? It’s failing to focus on the issues that are actually relevant to that analysis, and giving weight to factors that may have considerable emotional appeal but that are utterly irrelevant to whether a use-of-force was lawfully justified.

Now, it must be said that some of this is not genuinely founded on stupidity or ignorance, sometimes the failure to focus on the relevant issues is deliberate. This is particularly likely to be the case when the person in question has some extra-legal reason for being engaged in the case and the actual facts and law are not in their favor.

There’s a cliché in the law that when the facts are against you, you pound the law; when the law is against you, you pound the facts, and when both facts and law are against you, you pound the table. Much of this apparent “stupid think” in use-of-force cases is simply self-interested participants pounding the table because they have neither the facts nor law on their side.

We saw a great deal of this in the trial over the shooting death of Trayvon Martin, for example. Trayvon was wearing a hoodie, he was carrying “skittles and ice tea,” he was killed for the crime of being a young black male, etc.

Of course there was no evidence—literally none—that any of these facts are what compelled George Zimmerman to shoot and kill Martin, and thus none of them were relevant to the legal analysis of whether Zimmerman’s use of force was lawful. (Spoiler: After 14 months of investigation and trial, a unanimous jury acquitted Zimmerman of all charges.)

We’re seeing much of this in the currently ongoing case of the “oops, wrong apartment” shooting, in which Amber Guyger shot and killed Botham Jean. The undisputed facts that Guyger was in Jean’s apartment, that Guyger was white and Jean was black, that Jean was doing nothing unlawful when he was shot, are all by themselves utterly irrelevant to whether Guyger’s killing of Jean was lawfully justified.

We now see much the same “stupid think” in the coverage and commentary in this “do police qualify for self-defense immunity” decision out of the Florida Supreme Court.

The facts of this case are straightforward. The victim, Jermaine McBean, was walking around a Broward County Florida apartment complex with an apparent rifle in his hands and acting erratically, alarming residents.

Sheriff’s Deputies were dispatched to the scene, including Deputy Peter Peraza. As Peraza approached McBean he and other officers loudly ordered McBean to put down his weapon. Instead, Peraza testified, McBean pointed his apparent rifle at the officers, and Peraza shot and killed him. The apparent rifle would ultimately prove to be an air rifle.

Peraza was charged with manslaughter, which would have carried a 30-year sentence if convicted. He sought self-defense immunity under Florida law, which was granted by the trial judge. State prosecutors appealed this decision, and it was affirmed by the Florida mid-level appellate court. State prosecutors again appealed this decision, and the grant of immunity has now been affirmed by the Florida supreme court.

The Seattle Times piece reporting on this case largely quotes from the attorney for the family of the deceased McBean, one David Schoen. Naturally, for the family (and thus for Schoen if he’s working on contingency in the context of a civil wrongful death suit, which I expect he is), there’s potentially a considerable sum of money at stake if they can win at trial. The grant of immunity to Peraza blocks their ability to get to trial, and thus they are naturally unhappy with this legal outcome.

Examples of facts recited in this reporting that constitute “stupid think”?

“McBean’s family has said he was diagnosed as bipolar in 2010 and had recently suffered a breakdown that required hospitalization.”

Given that the source of this information is McBean’s own family, it is presumably offered in support of the argument that Peraza should have been denied immunity. That is, McBean wasn’t really intending to threaten anybody with deadly force harm, rather he was mentally disordered.

This, of course, has nothing to do with whether Peraza’s perception of the apparent threat was reasonable—which is what actually controls the legal analysis in this case. After all, was Peraza supposed to psychically know McBean’s mental history? Was he supposed to conduct a mental health evaluation of McBean as the muzzle of the apparent rifle turned upon himself and other officers? Of course not: Peraza, like the rest of us, is permitted by law to act defensively against the reasonably perceived apparent threat.

Great emphasis is also placed on the fact that McBean’s “weapon” was in fact an air rifle. This fact may be true, but it is irrelevant if a reasonable person in Peraza’s position could have perceived the air rifle as an apparent firearm. If so, they are permitted to respond to it as a firearm. Period. We’re permitted to use defensive force against a reasonably perceived apparent threat. The threat need not be actual.

Emphasis has also been placed on the claim that McBean was wearing earbuds, and thus could not hear the officers commands to drop the air rifle. What McBean could or could not hear is utterly irrelevant to the officers’ use-of-force decisions, and of course it goes without saying that wearing earbuds does not entitle someone to point an apparent rifle at other people.

McBean could have been physically and totally deaf, and it would not change the use-of-force analysis in this case—Peraza and the other officers are permitted to respond to the reasonably perceived apparent threat.

Remember: We’re not required to make perfect decisions in self-defense, we’re only required to make reasonable decisions in self-defense. Mistakes are permissible, so long as they are reasonable mistakes.


Attorney Andrew F. Branca   Law of Self Defense LLC

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