A police department in order to prevail in a discipline case need only prove the violation by preponderance of the evidence or at most, in very limited instances by clear and convincing guilt. The standard of proof for the State in a prosecution is of course the highest standard in the law, beyond and to the exclusion of all reasonable doubt.
As was made clear in the memorandum that we issued regarding the shooting of the late Mr. McNeil, in reviewing police use of deadly force, we determine whether the police action was legally justified under the criminal laws of our state. We do not engage in an examination of police procedures, protocols, or patterns and practices. This latter analysis does not fall within the scope of our role as state prosecutors. Civil or administrative remedies for suspected violations of police procedures, protocols, or patterns and practices exist in other forums outside of the state criminal justice system.
We have been legally prohibited from considering police procedures or protocols since the early 1990`s Lozano v. State, 584 So.2d 19 (1991) 16 Fla. L. Weekly D1673). In the trial of City of Miami Police Officer William Lozano who was prosecuted and convicted of manslaughterfor the 1989 deaths of motorcycle driver Clement Lloyd, 23, and his passenger, Allan Blanchard, 25, during a police chase (the last Florida conviction of a police officer for actions taken during a police involved shooting), we introduced, over the defendant`s objections, evidence relating to violations of police department rules in order to buttress our prosecution theory. The admission of this evidence was later held to be error by Third District Court of Appeals and in part caused the reversal of the conviction.Specifically, the appellate court recognized that:
[A] police department may lawfully impose upon its police officers a regulation concerning the use of deadly force which is more stringent than the law imposes upon police officers for criminal or civil liability, and while such regulation would not affect the standard by which the officers’ criminal or civil liability is measured, the violation of such regulation would properly subject the offending member to appropriate disciplinary action within the department. Lozano v. State, 584 So. 2d 19, 24 (Fla. 3d DCA 1991), citing Chastain v. Civil Service Board of Orlando, 327 So. 2d 327 (Fla. 4th DCA 1976).
The law in Florida is thus clear. Police departments may use rule violations to discipline, but these rule violations are irrelevant to a determination of criminal liability and prosecutors may not rely on them for supporting criminal charges.</< p> This difference is further echoed by a recent Facebook posting by former Opa Locka Police Chief and former Miami-Dade Police Lieutenant James B. Wright who wrote:
Violating departmental policy and what the law terms as justifiable homicide are two different matters. Florida State Statute 776.05 says that, in part, The officer is justified in the use of force which he/ she reasonably believes to be necessary to defend himself or herself or another from bodily harm. When the officer is mistaken, but still had a ‘belief’ based upon reason, his actions would be justified.
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