Published Tuesday, June 20, 2000, in the Miami Herald

Police shooting tale doubted
Settlement cost Miami $2.5 million
BY GAIL EPSTEIN NIEVES
[email protected]

The city of Miami settled a fatal police-shooting lawsuit for $2.5 million after an assistant city attorney found the accounts of participating Miami Police officers unbelievable and contradictory, leaving the city vulnerable to a large jury award, an internal legal memorandum shows.

The city also feared that a trial in the 1996 police shooting death of 73-year-old Richard Brown would feature an unwelcome sideshow: a recounting of “gun-planting” accusations under investigation in at least three other Miami Police shootings.

“Based upon the totality of the circumstances, there is considerable risk that a jury will not only return a very large verdict against the city and its officers, but also punitive damages against the officers,” wrote Assistant City Attorney Charles C. Mays, whose settlement recommendation was approved by the City Commission in January.

The city has already paid half the settlement to 18-year-old Janeka Brown, who was 14 when a Miami Police SWAT team burst through her front door on March 12, 1996, and fired 122 rounds, killing Brown, her great-grandfather. Six police officers said they returned fire after Brown, a suspected drug dealer, fired at them first and struck an officer’s shield.

Janeka Brown cowered on the bathroom floor during the raid as wall-piercing bullets crackled around her. Police said they did not know Janeka lived in the apartment at 1344 NW Seventh Ct. Donald Warshaw, then the police chief, told reporters that was the only flaw in an otherwise defensible operation.

But Mays, the author of the internal legal memo, reached some different conclusions.

Regarding one crucial legal element of the case, Mays wrote: “The officers’ account that they knocked and announced their authority before forcibly entering the plaintiffs’ apartment is contradicted by both direct and circumstantial evidence.”

Mays wrote that three neighbors, a former police officer watching the scene, and Janeka Brown herself all disputed the officers’ accounts. Brown told police she and Richard Brown believed they were the victims of a home invasion. She called 911 twice at Richard Brown’s instructions, she said, because nobody answered when he shouted, “Who’s there?”

Mays’ secretary said he was not available for comment Monday. But City Attorney Alejandro Vilarello said the memo does not conclude that Miami Police officers were being untruthful.

Asked why the city settled, Vilarello said: “We didn’t go to trial because we felt a jury could reasonably conclude, based upon the evidence in the case, that there was liability on the part of the city, obviously in amounts greater than we settled for.”

Police Chief Raul Martinez, who met with Vilarello and Mays Monday to discuss the memo, said he did not agree with its conclusions. But he acknowledged the operation “obviously was not the finest hour of our SWAT team,” and said the department has conducted more training and changed some procedures to prevent a similar situation.

None of the officers who were sued — Evelio Nogues, Arturo Berguiristain, Ralph Fuentes, William Abraira, Eliezer Lopez, Alejandro Macias and Willie Jones — was disciplined. They were all cleared at an inquest, by homicide investigators, by internal affairs and by a firearms review board. All but one remains on the SWAT team.

Fort Lauderdale lawyer Barbara A. Heyer, who sued on Janeka Brown’s behalf, said she was prepared to argue that the police killed Richard Brown in “a shooting frenzy” for no good reason and then manufactured evidence to support a coverup of the truth. The city denies any such wrongdoing.

Mays’ legal memo, written Nov. 8, 1999, addresses several issues point by point, concluding with each that the accounts given by police were not believable.

Mays wrote :

A six-foot swath of bullet holes left the Browns’ small Overtown apartment in shambles, suggesting the officers had lost their target and were shooting wildly. One SWAT officer was struck in the back by friendly fire.
“The officers maintain that at all times they had target acquisition,” he wrote. “That is to say, they could see Mr. Brown standing partially in the bedroom doorway when they returned fire. Their explanation is contradicted by physical evidence showing that the bedroom door was closed when one of the officers fired several rounds through the door from a position just west of the door.”

Police found no drugs inside the apartment, but speculated that Brown threw a container of cocaine out his second-floor window while police were trying to get in. An officer found a container of cocaine in the grass after the raid.
But Mays said evidence shows Brown could not have thrown the container from the window.

“The window to Mr. Brown’s bedroom . . . opens with a crank,” he wrote. “Photographs show that the window did not have a crank.”

Chief Martinez, who headed a firearms review board that examined the shooting, said the board asked hard questions but ultimately was satisfied with the officers’ answers. Since the shooting, SWAT has increased its target training. The department also changed policy so that armed, barricaded subjects — like Richard Brown, who fled into his bedroom — will immediately be given the opportunity to deal with a hostage negotiator.

Attorney Heyer also planned to show that three officers involved in the Brown case were at scenes where police may have planted guns to justify shootings. All three officers belonged to the now-defunct Street Narcotics Unit. The cases are under investigation by the Police Department, FBI and a federal grand jury.