Why is it rare for officers to be charged in connection with police shootings?

MIAMI-DADE COUNTY, Fla. – It has been almost 30 years since a Miami-Dade County  police officer was convicted in a police-involved shooting.

And even then, the conviction didn't stick.

Officer William Lozano was charged for manslaughter after fatally shooting a black man while he was on duty. Ultimately, the conviction was overturned after he was given a new trial on appeal.

The case set a high legal bar for persecuting police, former State and Federal Prosecutor David Weinstein said.

These days, officers in Florida are rarely charged for on-duty police shootings and experts said that's due to state laws designed to shield officers, given the special and dangerous nature of their job.

No charges:

From 2011 to July 20,there have been a total of 140 police-involved shootings reported in Miami-Dade County to the State Attorney's Office.

Those shootings resulted in 78 deaths.

The number of times prosecutors have filed criminal charges against a police officer involved: Zero.

Some of the more high-profile cases include the 2011 death of Raymond Herisse, who was shot and killed by police during Memorial Day Weekend on Miami Beach. In 2014, teenager Jason Carulla died in a police-involved shooting of teenager during a car theft ring sting.

In both, prosecutors for the Miami-Dade Office of the State Attorney determined the officers were "legally justified," in their actions.  

"Can you understand why from a community's perspective the appearance of that would be that law enforcement officers are above the law?" Local 10 News investigative reporter Christina Vazquez asked. 

"I don't agree with that," Miami-Dade Chief State Attorney Don Horn said. "I can understand how some folks could reach that conclusion if they don't know the law."

He said the state attorney has encouraged his office to educate the community the law.

"Once you have an understanding of what the law is you get an understanding of not just how we are analyzing these cases with police officers, but how we are analyzing these cases even when civilians are using these same statutes and saying 'I was entitled to use deadly force because I was in fear for my life,'" Horn said.  

The Lozano case:

So what happens when an officer accused of shooting a person and goes to trial?

The landmark Lozano case changed how those cases are viewed in court.

"It is very hard to bring charges let alone get a conviction," Weinstein said. "The second Lozano re-trial was a perfect example."

The reason it set such a powerful precedent is that at trial, the state can't introduce evidence of the officer's training manual and written policies to rebut the argument that the officer used excessive force contrary to that training, according to Weinstein.

Horn, who is from Miami's Overtown neighborhood, was a prosecutor in the case.

"We have had cases where there have been training issues where it has been clear to us that the officer who was involved in the shooting acted contrary to his or her training but because of Lozano in those cases we would be precluded from presenting such evidence if the case were to go to trail," Horn said.  

'Stand Your Ground' law: 

Most of the police shootings that the Miami-Dade State Attorney's Office closes out are closed out based on by self-defense analysis, known as the "Stand Your Ground" law, according to Horn.

 "It is the same kind of thing that citizens who are using Stand Your Ground as their basis for using deadly force employ," he said.

Average citizens and officers aren't viewed equally under this law.

"It actually changes if one party has a badge because the Legislature has given greater discretion to police officers because of their job," Horn said. "I don't get called out to go confront people in the middle of the alley at 3 o'clock in the morning, and I don't walk around with a badge on my hip and a law that says 'I can do this if folks don’t do what I ask them to do.'"

He said given that officers respond to break-in cases, they risk being threatened and therefore are "given the privilege of having a gun to defend myself and defend others."

In reference to Chapter 776 of the Florida Statutes,Horn added, "Because extra laws and extra protections that the Legislature has given to officers they have got a broader range of opportunities where they can lawfully use deadly force that are not available to you or me."

Former Prosecutor David Weinstein spoke to the concerns expressed by communities nationwide on the topic of officer-involved shootings.  

 "They see it as a person who was killed, not by a police officer but just by another human being so they want it to be treated like a murder case," he said. "But the state attorney can't do that."

He said these cases need to be viewed under the lens of what a police officer would have done in that situation, and that I comes down to the nature of a police officer's job.

"What's happening in these situations is they're being interjected into some activity that is taking place either unlawful, lawful. They're not normal citizens; they're out performing their jobs," Weinstein said. "In the end, they need to both perform their job and make sure that nobody dies as a result of whether it is the person they are trying to apprehend or whether it is an innocent bystander and the key becomes do you have a fear for your life in what you're doing?"

Rebecca "Butterfly" Vaughns, a poet and spoke word artist is outspoken at community events such as last January's Stop the Violence forum in Miami Gardens.

She said the lack of answers in police-involved shooting cases can be frustrating.

"When it comes to police involvement in a shooting, and unfortunately when it is an African-American male or female, it is frustrating when there are no answers given, directly and at the moment, and possibly no justice served," she said. "That is an honest frustration, that's a deserving right frustration." 

While Vaughns understands a community's frustration, with relatives in law enforcement, she said, she can also appreciate their point-of-view.

"When they put that uniform on and all of that garment, at the same time they're also putting on their life, they're putting on what they may not come back home to,"  Vaunce said. "There will always be a little tad bit of racism or prejudice, but no one is going to tell me that your average officer, and especially white officer, wakes up in the morning  and their mind state is, 'OK which black woman's child am I going to kill on my shift?' That doesn't happen. The echo of this story for me would be all officers are not the same."

Body cameras - The new witness: 

Horn clarifies that his point isn't that every officer in every shooting was a legally justified shooting.

"There have been cases where we have spent a lot of time having meetings in our office, going over meeting with folks in the U.S. Attorney's Office but we don't have enough evidence to charge. There's nothing we can do," he said.

He said what happens in some police shootings that often times the only person who is living knows what happened and it is an officer and we can't force them to talk.

"One of the things that I think is going to make our job easier is the fact that a number of police departments are now going to be using body cameras, and the fact that these cameras are there will give us another bit of information and sometimes that may make the difference if we have sufficient evidence to charge," Horn said.

Length of investigations:

One criticism over the years has been the length of investigations into police shootings.

Right now, Miami-Dade's State Attorney's Office has 59 open investigations into police shootings from 2011 to July 20. Two cases date back to 2011.

"Part of the problem has been we don't start the clock running on our investigation until we get all the information from the investigative agency which includes all the police statements," Horn said.

This includes all the sworn statements, crime scene photos, autopsy report, autopsy photos, the photos taken by Medical Examiner's office, lab reports, blood reports, and anything else that may have been requested.

Depending on the department, it might take a year, or even longer, before the first wave of documents and evidence come in those cases.

"So our investigation isn't starting, in terms of our evaluation of the evidence, until a year-and-half sometimes two years, after the incident occurred because we don't have the material, even though we are out on the scene, the same night or same day that it happened," Horn said.