"Civilians often confuse use of force with excessive use of force," Commander David Robshaw told the Juice in an interview this week. "Lawful authority can be construed as excessive."
Robshaw thinks we've all been watching too many episodes of Law and Order. Public perception of police brutality is fueled by sensationalist media. In the glare, ordinary people tend to forget that most arrests involve some use of force, he says.
Robshaw, you may remember, was brought in to replace David Benjamin as head of BSO's Internal Affairs when Benjamin proved to be a bit of an embarrassment for the sheriff. Lamberti had to admit that keeping Benjamin on to oversee what could become an Internal Affairs investigation into his own ties with Ponzi schemer Scott Rothstein would be less than kosher.
Robshaw now runs Internal Affairs jointly with District Chief John Hale. So he looks at a lot of "use of force" reports. In the wake of a fatal Palm Beach Sheriff's Office shooting in Lantana this week, we sat down with Robshaw and Hale to parse the difference between force and excessive force.
It used to be that deputies had to obey rules of escalating force. But these days, Robshaw explained, they have a lot more leeway. Deputies can make their own decisions about how much force is necessary to effect an arrest. Florida Statute 776.05 lays it out:
A law enforcement officer... need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
2) When necessarily committed in retaking felons who have escaped; or
3) When necessarily committed in arresting felons fleeing from justice.
The key words are reasonable and necessary. And that's pretty much what Internal Affairs is supposed to determine. Let's take a look at some recent and controversial police cases in Broward and Palm Beach that have involved use of force. We'll put on our civilian thinking caps and see if we can tell what might constitute excessive.
1) Tuesday March 23, 2010: PBSO deputy shoots and kills Allen Hunter while serving a warrant for probation violation in Lantana. Details are still scarce, but the official story is that Hunter grabbed the male deputy's bat and started hitting him with it. The female deputy used her Taser, but it failed to stop Hunter. The male deputy then shot and killed Hunter. Hunter had at least 15 prior arrests and was, according to his family, bipolar and about to be committed. Top sheriff's officials were filmed laughing and mugging at the scene.
Excessive force? We say YES. Although the deputies weren't obliged to back off, they could have called for backup. Or even delivered a nonfatal warning shot. We're also deducting points for the bad behavior of PBSO brass on the scene.
2) December 5, 2008. Joshua Ortiz gets roughed up in a Las Olas parking garage elevator by Fort Lauderdale police, evidently for "battering" them verbally. He ends up with a broken nose and a felony charge of battering a LEO. It's all caught on video. Ortiz's battery charges are dropped by the State Attorney once they get an eyeful of the incriminating video -- it's not Ortiz doing the beating.
Excessive force? YUP. These officers' mothers apparently didn't teach them the old rhyme: "Sticks and stones will break my bones, but words will never hurt me." Nowhere in the statute above does it say that talking sass to an officer is grounds for a three-prong takedown.
3) June, 2009: Guma Aguiar hires Alan Dershowitz to prove police battery. Guma Aguiar has posted a YouTube video that purportedly shows him getting roughed up by police after he was arrested on a pot bust and taken to Broward County Jail. But anyone who can stay awake through this less-than-scintillating exposé will probably agree that it proves exactly nothing. The cops might as well be stroking a pet cat. Aguiar says they bent his fingers or something.
It probably doesn't help his case that Aguiar, who has billions made from natural gas exploration, has also publicly whined that the police didn't let him call his mommie. Dershowitz told news media he was going to be putting together a "high-powered team to get to the bottom of what happened."
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Excessive force? No way. Dershowitz is gonna have his work cut out. And when we last heard from Guma in January, he'd just been admitted to a psychiatric hospital in Jerusalem: not exactly good press for his case.
4) July, 2008: West Palm cops Kurt Graham and Louis Schwartz were caught on tape kicking Pablo Valenzuela while he was on the ground after they'd arrested him. And then the two cops took a break to talk it over and get their stories straight before they wrote their report. They started out saying Valenzuela had a knife near his face, until it was determined that -- oops -- the knife was actually in his backpack! Then they said the suspect was trying to bite them. The video shows pretty clearly that Valenzuela is just hanging out on the ground, fully cuffed and minding his own beeswax. And here's a case where Internal Affairs actually agrees with us: Schwartz was fired after the subsequent investigation, and Graham resigned. Take a look at the video here and judge for yourself.
Excessive force? YOU BETCHA!