Miami Cops Win Stand Your Ground Immunity After Fighting With Partially Paralyzed Man in Wheelchair

Update, July 14, 2020: Pedro Brito shared more of his story with New Times following the killing of George Floyd.

Last summer, the Broward Sheriff's deputy who'd killed Jermaine McBean — a computer tech who was carrying an unloaded air rifle — tried something that had never been done before in Florida: He asked for a Stand Your Ground hearing. The bet paid off. In late July, a Broward circuit judge dismissed the manslaughter charge, leading to protests and pushback.

Now, one year later, the City of Miami has successfully used the same defense in civil court, and the circumstances are just as controversial as the McBean case. Two Miami cops will now be immune from paying damages for battery because a judge ruled they had just cause to defend themselves from two men — one of whom was disabled and in a wheelchair.

On June 14, Miami-Dade Circuit Judge Norma Lindsey found that Miami Police Sgt. Moses Martinez and Officer Walter Byars "reasonably feared" for their safety when they used force against Pedro Brito and his wheelchair-bound brother, Carlos, in a June 2010 altercation. The case is likely to have an impact on other Florida cities facing civil complaints of excessive force and wrongful death by police.

"This is the first case I am aware of in which a government entity was granted immunity in a civil case under [Stand Your Ground]," senior assistant city attorney Christopher Green tells New Times in an email.

The Britos' lawsuit dates back to April 2014, four years after the incident with officers. According to court records, the two men were arrested June 27, 2010, outside the Epic Hotel after their group allegedly failed to pay its bar tab. Both brothers say they were "punched, choked, kicked, and otherwise battered," and Carlos Brito says he was "thrown from his wheelchair." A woman who witnessed the altercation also joined the suit, saying Sgt. Martinez confiscated her phone to stop her from taking photos of the incident.

But police had a different version of events. The two officers said that after confronting the brothers outside the hotel, Pedro Brito punched Martinez in the face several times. Martinez said he punched back, throwing Pedro to the ground and handcuffing him with Byars' help.

While Martinez and Byars were arresting Pedro, his brother Carlos "rode his wheelchair toward the officers" and "lunged forward onto Sergeant Martinez's back and grabbed his face," the officers say. A security guard testified that Carlos, who is paralyzed from the waist down, somehow "hurled himself onto Sergeant Martinez's back."

Circuit Judge Norma Lindsey ultimately found that the city had a right to claim Stand Your Ground and that the officers were justified in their use of force.

“Because the city stands in the shoes of its officers, and the officers are entitled to immunity pursuant to the Stand Your Ground statute, the city is likewise entitled to statutory immunity pursuant to the Stand Your Ground statute as a matter of law," Lindsey wrote in her decision.

Whether police officers should be allowed to use a Stand Your Ground defense is still the subject of an ongoing legal debate in Florida. In the McBean killing, prosecutors have appealed the decision, saying law enforcement officers already have their own immunity statute. As written, Stand Your Ground isn't clear on this question, saying only that "a person" who uses force in self-defense is entitled to immunity.

"I've argued that if the Legislature did not want Stand Your Ground to apply to law enforcement officers, they would have said so," says attorney Eric Schwartzreich, who is representing BSO Dep. Peter Peraza, who fatally shot McBean. "Police, civilians, anyone, according to that statute, should be allowed to use that statute."

Broward assistant public defender Frank de la Torre, who teaches a Stand Your Ground class at Florida Atlantic University, says he expects the issue to go all the way to the Florida Supreme Court. Although his only personal experience with Stand Your Ground pertains to criminal cases, de la Torre says in theory there's nothing to lose by citing it early on in a civil case.

"There is no downside to it. If you lose, you can still raise [self-defense] at trial," he says. "If I was representing a police officer, I would certainly use it if applicable."

In the case pursued by the Brito brothers, the city's Stand Your Ground victory applies only to the battery claims, so the brothers still have the opportunity to pursue damages for false arrest and negligence. Their attorney, Jeffrey Jacobs, requested a new hearing earlier this week.