OFFICE OF THE STATE ATTORNEY KATHERINE FERNANDEZ RUN DLE
ELEVENTH CIRCUIT STATE ATTORNEY

     

 

 

I
4 
MEMORANDUM
TO: TEAM July 2015
FROM: Howmd R. Rnsen RE: TASER DEATH CLOSEOUT MEMO
Ray Ami" . 

Assisuml Sm: Annmeys

UBECT: MimiBech 0mm Jorge cicada
Isml Hernandez-much, lrs.

DATE TIME Tuesday, August 6. 2013 5:20 AM.

Southwest comer of '11: City National Bank hem 300 71g Slrcet,
Mmi Beach. (The mm seen: is on the sidewalk on Hardmg Avenue.

 

 

 

 

Sta f?ng/Review Team Taser Death:
Page 26 SUBJECT: Of?cer Jorge Mercado

 

FACTUAL ANALYSIS

. was on his way to work when he saw Israel Hemandez-Llach spray painting

the building. This constitutes the crime of Criminal Mischief under Florida Statute ?806. 13. Pursuant
to that statute, a person commits the offense of Criminal Mischief if he or she willfully and maliciously
injures or damages by any means any real or personal property belonging to another, including, but not
limited to, the placement of graf?ti thereon or other acts of vandalism thereto. 1f the damage to the
property is less than $1,000.00, the crime is a misdemeanor. If the damage is $1,000.00 or greater, it is
a felony.

I - thought that what he had just seen was significant enough to bring it to the
attention of Of?cers Lattimore and Mercado. Israel Hemandez-Llach was approached by Of?cer
Mercado in direct response to what was reported to him by -. Of?cer Mercado had probable
cause to arrest Hernandez?Llach for Criminal Mischief. Hernandez-Llach began to run, and ran a total
of more than one third of a mile, running between buildings and jumping over at least one fence, in an
effort to do whatever he could to avoid capture. The police, whose obligation it is to enforce the laws
of the State of Florida, are not in the practice of allowing those who have committed cn'mes to simply
run away from the scene and escape, so they pursued him. He was observed committing a crime, and
had not been identi?ed by name. Had he successfully escaped from the scene, the police would have
had no way to identify him for later apprehension. Ironically, two other arrests had taken place hours
earlier of persons caught in the act of placing graf?ti on buildings located on Miami Beach.

When Of?cer Mercado reported to work on August 6, 2013, on his duty belt in a holster he had
a fully loaded Smith and Wesson .40 caliber ?rearm with one (1) live round in the chamber and
?fteen (15) live rounds in the magazine. He also had a second fully loaded magazine containing

 

 

 

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?fteen (15) more live rounds, at third fully loaded magazine containing ?fteen (15) more live roundsg, a
?ashlight, a set of handouffs, a police radio, a Taser, and a can of pepper spray.

Per the policy outlined in the beginning of Miami Beach Police Department Standard Operating
Procedure #017, which governs the use 'of force, ?the use of force, both deadly and non-deadly, is
justi?ed when of?cers reasonably believe it to be necessary to affect an arrest or to defend themselves
or another from bodily harm. A law enforcement of?cer need not retreat or desist from efforts to make
a lawful arrest because of .resistance to the arrest. The decision to resort to force, and the degree of
force to be used, shall be based on fact or what reasonably appears to be fact to the of?cer at the time
the action is taken. The appropriate force is the amount of force reasonably necessary to make the
arrest.? In other words, the officer has no duty to retreat from making an arrest.

Per Miami Beach Police Department Standard Operating Procedure #107 a Taser
device is considered a non-lethal weapon. The de?nition of a non-lethal weapon, and the use of non?
deadly force, is de?ned in that provision as weapon that is not ?mdamentally designed to cause
death or great bodily harm such as dart ?ring stun guns, expandable batons, ?ashlights, chemical
sprays, and the use of K-9. ?(emphasis provided). A Taser Is not ?fundamentally designed? to cause
death 01 great bodily ha1m.

Under Florida law, a ?deadly weapon? has generally been de?ned to be one likely to produce
death or great bodily injury. Dale v. State 703 So.2d 1045, 1047 (Fla. 1997); W, 885 So.2d
466 (Fla. 4th DCA 2004). A Taser device is not a device that is likely to produce death or great bodily
injury. No case in Florida has ever determined that a stun gun quali?es as a deadly weapon by its
or'dinaIy use as a matter of law Nguyen v. State, 858 So. 2d 1249,1260 (Fla. DCA 2003)
Mmeover, Florida Statute 790. 01(4) recognizes that stun guns such as that canied by Of?cer Mercado
are considered non-lethal.

 

The Spring Term 2004 Miami-Dade County Grand Jury reviewed the criminal justice system
and how it deals with persons suffering from mental illness. The report, which was issued by that
grand jury, entitled Mental Illness and the Criminal Justice system: A Recipe for Disaster A
Prescription for Improvement, also addressed how the use of Tasers by certain law enforcement
agencies had signi?cantly reduced the number of deadly shootings of aggressive mentally ill subjects
who were coming into contact with the police. The Spring Term 2004 Grand Jury strongly
recommended the use of Tasers by police as a ?less than lethal? weapon. '0

One of the major developments after the release of that'report was the decision of the Miami~
Dade Police Department to expand the level and number of officers who would be trained in the use of
and thereafter be issued Tasers.

Subsequently, another Miami-Dade County Grand Jury, in the Spring Term of 2005, issued a
report which speci?cally addressed the use of Tasers by law enforcement of?cers.- The Grand Jury
stated: 

 

9 A Miami Beach Police Department Standard Operating Procedure dictates that in addition to having a fully loaded
magazine in the ?rearm, all uniformed Miami Beach police of?cers must: carry two (2) extra loaded magazines.

'0 Final Report of the Spring Term 2004 Miami?Dade County Grand Jury, Mental Illness and the Criminal Justice System:
A Recipe for Disaster/ A Prescription for Improvement, at page 33.

 

 

 

 

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?Given the choice between being stunned?. ."and being beaten
with a baton and risk having bruises and possible broken bonelsi, we thinlc use of
the ECD (Elect? onic Control Device) is the better alternative. 

In an effort to provide guidance to the police departments in Miami-Dada County, the Miami?
Dade County Association of Chiefs of Police has created an Electronic Control Device Model Policy.
The 2005 Grand Jury agreed with the contents of that model policy, and recommended that allpolice
departments in Miami?Dade County adopt and enact an Electronic Control Device policy that is, at a .
minimum, consistent with and, at a minimum, as stringent as the Miarni? Dade County Association of
Chiefs ofPolice Model Policy 12

The 2005 Grand Jury further3 recommended that police departments continue with the
deployment of Tasers to their officers.13 The Grand Jury concluded that the use of electronic control
devices has been a bene?t to law enforcement o?icers in our community. They noted that it has led to
a reduction in the number of subjects who have been injured during an encounter with police, and also
to a similar reduction of injuries to police of?cers in those departments that are using such devices.
The Grand Jury speci?cally stated that ?absent the availability of these ECDs, many more Of our
citizens would have been shot by police in violent and aggressive situations. ?15 The 2005 Grand Jury
report stated ?we frankly believe that effective use of ECDS by law enforcement of?cers should
continue the reduction of the use of deadly force in Miami-Dade County.?l6 In its report, the 2005
Grand Jury stated that the overall conclusion that one can reach is that use of the Taser has been la

'benefit to law enforcement, the communities and the subjects who have encounters with the police.
The Grand Jury concluded its report by stating that they strongly feel that Tasers offer a less lethal
alternative to conventional weapons

At the time of his encounter with Israel Hernandez?Mach, Of?cer Mercado had a fully loaded
Smith and Wesson .40 caliber firearm withtwo (2) additional fully loaded magazines containing
fifteen (15) more live rounds each at his disposal on his duty belt. If he had intended to utilize lethal,
or deadly, force upon Hernandez-Mach, Of?cer Mercado could have unholstered his firearm, instead
of his Taser, and shot his ?rearm at Hernandez-Mach. Shooting his ?rearm clearly would have been
?deadly force."

 

Final Report of the Spring Term 2005 Miami?Dada County Grand Jury, users: Deadly'ForceP, at page 5.
[2 Final Report of the spring Term 2005 Miami?Dade County Grand Jury, Tasers: Deadly orceP, at page 7.
?3 FinallReport of the Spring Term 2005 Miami-Dade County Grand Jury, Tasers: Deadly Force7, at page 8.
'4 Final Report of the Spring Term 2005 Miami?Dade County Grand Jury, Tasers: Deadly 0rce?, at page 8.
Final Report of the Spring Term 2005 Miami-Dade County Grand Jury, Tasers: Deadly Force?, at page 8.
'6 Final Report of the Spring Term 2005 Miami-DadeCounty Grand ury, Tasers: Deadly Force?, at page 8.
Final Report of the Spring Term 2005 Miami?Dade County Grand Jury, Tasers: Deadly orce?, at page 9.

?a Final Report of the Spring Term 2005 Miami-Dade County Grand Jury, Tasers: Deadly orceP, at page 31.

 

 

 

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The Taser Model X-26 Conducted Electrical Weapon (CEW) utilizes a replaceable cartridge
containing compressed nitrogen to deploy two (2) small probes that are each attached to the Taser
Model X-26 device with either a ?fteen (15), a twenty?one (21), or a twenty-?ve (25) foot insulated
conductive wire. The Miami Beach Police Department uses the longer, twenty~?ve (25) foot wire.
When the device is activated, it transmits electrical pulses along the wires and into the body, affecting
the sensory and motor functions of the peripheral nervous system. If both probes do not hit the subject,
then there will not be'a completed electrical cycle, and the device will have very little, if any, effect.

The two (2) probes are vertically oriented. The top probe discharges in a straight line. The
bottom probe discharges at an eight degree downward angle below the top probe. Accordingly, as
the two (2) probes are discharged, they separate from each other as they move through space towards
the target. This results in a Spread of approximately one 1) foot between the two (2) probes for every
seven (7) feet of distance from the target. Greater probe spread increases the effectiveness of the
device. The Operating Manual for the Taser Model X-26 states that if possible, a minimum of a four
(4) inch spread between the probes is recommended. The distance between the puncture wound on the
t0p of Israel Hernandez-Llach?s left shoulder and the puncture wound on the left side of his chest was
approximately 11.5 inches. Similarly, the two (2) defects in the shirt that Israel Hernandez-Mach was
wearing were approximately one (1) foot apart ?om each other. This measurement of a one (1) foot
spread between the probes when they struck Israel Hernandez-Mach indicates that when Of?cer
Mercado discharged his Taser he was approximately seven (7) feet from Hernandez?Mach. However, 
due to the fact that Israel Hernandez-Mach and Of?cer Mercado Were running in the direction of each
other at the time of the Taser discharge, and the corresponding distance between them was therefore
decreasing, the distance between them at the time that the Taser was discharged could have actually.
been greater than seven (7) feet.

In addition to the Operating Manual for the Taser Model there is a separate document
that is entitled ?Taser Handheld CEW Warnings, Instructions, and Information: Law Enforcement.?
This document talks about safety and health information. It contains a section that states 
Cardiac Capture. CEW exposure in the chest area near the heart has a low probability of inducing
extra heart beats (cardiac capture). In rare circumstances, cardiac capture could lead to cardiacarrest.
When possible, avoid targeting the frontal chest area near the heart to reduce the risk of potential
serious injury or death.? The document goes on to state that ?Cardiac capture may be more likely in
children and thin adults because the heart is usually closer to the CEW-delivered discharge (the dart-
to?heart distance)? It states that to reduce the risk of injury, preferred target areas should be utilized.
The preferred target area for the front is the lower center of mass, below the chest. It states that the
preferred target areas increase the dart-to-heait distance and reduce cardiac risks. However, the
Operating Manual for the Taser Model states that the device should be aimed at the center of
mass of one of the large muscle groups such as the torso or thigh. (In training, police are always taught
to aim for the center of mass. Additionally, when discharging a conducted energy device such as the
Taser Model X-26, if both of the probes do not strike the subject, then the device will have little to no
effect. Aiming at the legs or the arms minimizes the chances of both probes striking the subject.

Aiming of the Taser at Hernandez-mach at the time of the incident was further complicated by
the fact that this was a very fluid situation. It was not a static situation where Hernandez-Mach was
standing still and Officer Mercado was also standing still and carefully taking aim. To the contrary, it
was a dynamic situation wherein both Hernandez-Mach and Mercado were running. It could clearly be

 

 

 

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heard on the police dispatch tapes that Of?cer Mercado was out of breath at the time. Accordingly,
Of?cer Mercado was aiming at a moving target while he himself was moving rapidly as well.

A review of the Taser?s event log indicated that Of?cer Mercado discharged his Taser at
Hemandez?Llach only one time, and only a six (6) second cycle of electricity was discharged. This
would normally not be likely to cause death or great bodily harm. Neither Of?cer Mercado nor any
other of?cer ever drew their ?rearm during their encounter with Hernandez-Llach, and Hernandez-
Llach was certainly not ?red upon with a ?rearm. The evidence shows that to the contrary, Of?cer
Mercado chose to use less than lethal force in apprehending Hernandez-Mach. While he could have
taken the course of action of attempting to physically tackle Hernandez-Llach to the ground, the
ground at the scene was concrete, and from any police of?cer?s perspective, given the fact that there
were previously no documented cases wherein an individual died solely as a result of being tasered, the
likelihood of the subject or the of?cer sustaining an injury during the course of a tackle onto a hard
surface such as concrete was greater than the likelihood of an injury, let alone a death, caused by a
Taser deployment. In determining that the manner of death was accidental, Associate Medical
Examiner Dr. Mark Shuman speci?cally stated that conducted energy devices are not likely to cause
sudden cardiac death. It was most unfortunate that one of the probes struck Hemandez-Llach in the
left ?fth intercostal space, which has been shown to be the region where there is the least skin-to-heart
distance.

LEGAL ANALYSIS

As a general matter, we note that our role as prosecutors is to enforce the criminal laws of the
State of Florida and to prosecute those who violate those laws. In reviewing police use of force, we
determine whether the police action was legally justi?ed under the criminal laws of our state.

We do not routinely engage, nor would it be appropriate for us to 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 begin our legal analysis by first addressing what potential crimes, if any, might arise out of
Of?cer Mercado?s actions. Because this is obviously a matter dealing with the death of a human
being, we will consider violations of Chapter 782, Florida Statutes, relating to homicide.

The fact pattern presented in this case does not support consideration of the crime of First
Degree Premeditated Murder, Section Florida Statutes (2013). We do not even reach
the issue of whether Of?cer Mercado engaged in premeditation as de?ned by law. More basic to our
analysis is the fact that premeditated First Degree Murder, except for Felony Murder, requires proof
that the killing was the product of a speci?c intent to kill the person, and that such intent was present in
the mind of the killer at the time of the killing. Fla Standard Jury Instructions in Criminal Cases 7.2.
There is no evidence in this case that Of?cer Mercado acted with premeditated intent to kill at the time
that he deployed his Taser at Israel Hernandez-Llach for the single six (6) second cycle. The only
reason that Of?cer Mercado even approached Israel Hernandez-Mach was because had

 

 

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reported that he had seen him spray painting the building. Of?cer Mercado had probable cause to
arrest Hernandez~Llach for Criminal Mischief. Hernandez~Llach began to run, in an effort to do
whatever he could to avoid capture. The police, whose obligation it is to enforce the laws of the State
of Florida, are not in th'e?p?raCtice of allowing those who have committed crimes to simply run away
from the scene and escape. Rather, the evidence in this case suggests that it was only at this point,
after a chase of more than one third of a mile, between buildings and over a fence, that Of?cer
Mercado discharged his Taser at Israel Hernandez-Mach for a single six (6) second cycle, in an effort
to apprehend him after he had committed a Criminal Mischief. If Of?cer Mercado had intended to
commit First Degree Premeditated Murder of Israel Hernandez-Mach, he would have utilized lethal, or
deadly, force upon him, and would have ?red his gun at Israel Hernandez?Mach, rather than
discharging his Taser for a single six (6) second cycle.

We also conclude that the fact pattern presented in this case does not support consideration of
any degree of First Degree Felony Murder, in violation of Section Florida Statutes
(2013). The fact pattern in this case is devoid of any evidence whatsoever that would suggest that the
death of Israel Hernandez?Mach occurred during the commission of any applicable felony perpetrated
by Of?cer Mercado. I

Neither does the fact pattern warrant consideration of Second Degree Murder, in violation of
Section Florida Statutes (2013). In order to prove the crime of Second Degree Murder, the
prosecution would have the burden of proving that Of?cer Mercado?s actions evinced a depraved
mind. More speci?cally, we would have to prove that Of?cer Mercado acted with ill will, hatred,
spite, or evil intent when he discharged his Taser for the single six (6) second cycle. There. is
absolutely no evidence in this case to suggest, even circumstantially, that the of?cer knew the deceased
before that day or that he acted with any ill will, hatred, spite, or evil intent. Once again, the reason
that Of?cer Mercado discharged his Taser was because Of?cer Mercado had probable cause to arrest
I?Iernandez-Llach for Criminal Mischief, and Hernandez?Llach was running away, in an effort to do
Whatever he could to avoid capture. It was only after the protracted chase of more than one third of a
mile, between buildings and over a fence, that Of?cer Mercado discharged his Taser at Israel
Hernande?z?Llach, in an effort to apprehend him after he had committed a Criminal Mischief.

There are two potential charges. The ?rst is the crime of Manslaughter, Section 
Florida Statutes (2013). The gravamen of this charge requires the prosecution to establish that the
defendant caused the death of another by culpable negligence. Tire culpable negligence jury
instruction in Fla. Standard Jury Instructions in Criminal Cases 7.7 provides that:

?Each of us has a duty to act responsibly toward others. If there is a violation of
that duty, without any conscious intention to harm, that violation is negligence.
But culpable negligence is more than a failure to use ordinary care for others. In
order for negligence to be culpable, it must be gross and flagrant. Culpable
negligence is a course of conduct showing reckless disregard for human life, or
for the safety of persons exposed to its dangerous effects, or such an entire want
of care as to raise a presumption of a conscious indifference to consequences, or
which shows wantonness or recklessness, or a grossly careless disregard for the
safety and welfare of the public, or shows such an indifference to the rights of
others as is equivalent to an intentional violation of such rights. The negligent act
or omission-must have been committed with an utter disregard for the safety of

 

 

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others. Culpable negligence is consciously doing an act or following a course of
conduct that the defendant must have known, or reasonably should have known,
was likely to cause death or great bodily injury.?

In this case, the prosecution would have to establish that Of?cer Mercado engaged in a course of
conduct that was criminally reckless.

To sustain a charge of Manslaughter, we would have to show that Of?cer Mercado?s actions in
discharging his Taser for a single six (6) second cycle at a ?eeing felon constituted gross and ?agrant
negligence. We would have to show that his course of conduct showed a reckless disregard for human
life, 01 for the safety of persons exposed to its dangerous effects, or such an entire want of care as to
raise a presumption of a conscious indifference to consequences, or which shows wantonness or
recklessness, or a glossly careless disregard for the safety and welfare of the public, or shows such an
indifference to the rights of others as is equivalent to an intentional violation of such rights.

To go forward with a prosecution of Officer Mercado, the State would have to show that his
action in discharging his Taser for the single six (6) second cycle was committed with an utter
disregard for the safety of others. Culpable negligence is consciously doing an act or following a
course of conduct that the defendant must have known, or reasonably should have known, was likely to
cause death or great bodily injury. As Associate Medical Examiner Dr. Mark Shuman himself noted,
while it is a rare event that can occur under certain circumstances, conducted energy devices are not
likely to cause sudden cardiac death. It was speci?cally because Dr. Shuman concluded that ?there
was no reasonable expectation? that the use of the conducted energy device would result in death that
he determined that the manner of death was accidental. Given the fact that this is purportedly the ?rst
time in Florida where a medical examiner has determined the cause of death to be a sudden cardiac
death due to a conducted energy device discharge where there has been no additional contributory
causes such as excited delirium, it cannot be said that Officer Mercado, or anybody else for that matter,
?must have known, or reasonably should have known?, that the single discharge of a Taser for a single
six (6) second cycle was ?likely to cause death or great bodily injury.? The evidence does not
demonstrate that Officer Mercado?s actions were of such a nature to sustain a conviction for
manslaughter.

The other potential charge is Third Degree Felony Murder under section Florida
Statutes, where Hernandez-Llach?s death occurred while O?icer Mercado was engaged in the non?
enumerated felony of Felony Battery. Felony Battery under section 784.041, Florida Statutes, requires
that the person ?actually and intentionally touch or strike another person against the will of the other;
and causes great bodily harm, permanent disability, or permanent dis?gurement. A technical reading
of the statute would show that Of?cer Mercado actually and intentionally struck Hernandez-Llach by
tase1 mg him, causing him great bodily harm or permanent disability. However, that does not end the

inquiry.

For any criminal charge that could come from the death of Hemandez?Llach as a result of
Of?cer Mercado?s actions, we are required to review the evidence to determine if Of?cer Mercado was
excused or justified in his actions under Florida law such that no criminal charges can or should be
?led. First, while we do not have the bene?t of having a statement from Of?cer Mercado other than
his one statement to Sergeant Aguilar, where he said that he tasered Hemandez-Llach as Hernandez~

 

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Llach was coming towards him?, as part of our legal analysis we must of necessity consider whether
Section 776.05, Florida Statutes, Law Enforcement Of?cers; Use of Force in Making an Arrest, would
be an applicable defense to any prosecution of Officer Mercado.

Florida Statute 776.05 provides that:

A law enforcement of?cer, or any person whom the of?cer has summoned or directed
to assist him or her, need not retreat or desist from efforts to make a lawful arrest
because of resistance or threatened resistance to the arrest. The of?cer 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 ?eeing from justice.

Once Israel Hernandez-Llach was observed spray painting graf?ti upon the exterior walls of
the McDonald?s restaurant, there was probable cause to arrest him for the crime of Criminal Mischief
under section 806.13, Florida Statutes (2013). The only difference between misdemeanor Criminal
Mischief and felony Criminal Mischief is the amount of the damage. If the damage to the property is
less than $1,000.00, the crime is a misdemeanor. If the damage is $1,000.00 or greater, it is a felony.
To a prudent police of?cer who is out on the street and has to make an immediate assessment of a
situation, he would be incapable of determining exactly how much money it would cost to repaint or
repair the exterior of a restaurant, and would not be able to come to a de?nite conclusion as to whether
it would cost over or under $1,000.00. The graf?ti that Israel Hernandez-Llach painted on the building
was not just a small tagging of paint on a small contained space on a single surface. Rather, it was a
large area of many square feet, which spanned not only wall surfaces, but several metal doors and
several Windows.2 Based upon these writers? experiences, it is obvious to these writers that to replace
the doors and windows and to repaint the surfaces would cost well over $1,000.00. Accordingly, one
cannot second guess a reasonable of?cer?s assessment that the crime was a felony. Under section
Of?cer Mercado did not have to retreat or desist from efforts to make a lawful arrest
because of resistance or threatened resistance to the arrest. He was justi?ed in the use of any force in
apprehending any felon ?eeing from justice. There is no legal distinction between whether the felony
that the subject committed was a violent felony or a property crime. Under section 776.05(1) or (3),
Of?cer Mercado would have been justi?ed in the use of ?any?, force. He chose, however, not to use
deadly force (his ?rearm), but instead chose to use non-lethal force (his Taser).

 

'9 While Of?cer Mercado did not render a statement to investigators, he was not required to do so. All individuals in the
United States of America are entitled to the same protections of the Fifth Amendment to the Constitution of the United
States of America, which provides that everyone has protections against self-incrimination, including the right to remain
silent and not to be compelled to be a witness against himself. Accordingly, under the law, no one can be forced to testify
against himself. Police of?cers are not relegated to a watered-down version of constitutional rights. See the United States
Supreme Court?s opinion in Gary-mg v. New Jersgy, 385 US. 493 (1967). One?s fundamental rights do not evaporate upon
employment by a governmental entity.

2? For further details as to the actual graf?ti done by Israel Hemandez-Lach to the building on August 6, 2013, the reader
should refer to the photographs.

 

 

 

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Even if Of?cer Mercado, or any reasonable police of?cer, could not have believed that he had
probable cause to arrest Hernandez?Mach for a felony Criminal Mischief, Officer Mercado had
probable cause to arrest him for misdemeanor Criminal Mischief, whether it was committed in his
presence or not, see section Florida Statutes (2013). Of?cer Mercado also had probable
cause to arrest Hernandez-Mach for the misdemeanors of Resisting an Of?cer Without Violence under
section 843.02, Florida Statutes (2013); and Loiteiing or Prowling under section 856.021, Florida
Statutes (2013); both of which took place in Of?cer Mercado?s presence. When a law enforcement
of?cer is confronted by a violation of the criminal law, even if it is a misdemeanor, the of?cer has the
authority to effectuate the arrest of the person who the of?cer has probable cause to believe committed
that crime. Law enforcement of?cers are permitted to ?use such force as reasonably appears necessary
under all circumstances to effect a lawful arrest.? Jennings v. City of Winter Park, 250 So. 2d 900, 904
(Fla. 4th DCA 1971). ?The limit of the force to be used 'by the police is set at the exercise of such
force as reasonably appears necessary to early out the duties imposed upon the of?cers by the public."
City of Miami 12. Albro, 120 So. 2d 23, 26 (Fla. 3d DCA 1960). In fact, under 
Florida Statutes (2013), the only time an of?cer is not permitted to use force in arresting a person is if
the arrest is unlawful and known by the of?cer to be unlawful. Thus, under Florida law, an of?cer
may use reasonable force to effectuate an arrest, even of a misdemeanant.

The force used by Of?cer Mercado to effectuate the arrest of Hernandez-Llach was reasonable
under the facts. Hernandez-Mach had run over a third of a mile to evade arrest. Of?cer Mercado had
been chasing him and lost him. Her'nandez?Llaoh was eventually seen by additional police of?cers,
and still refused to stop, even running through a building and then jumping over a fence to get away,
injuring himself in the process. It was soon after this that Of?cer Mercado saw Hernandez-Mach
running towards him. Of?cer Mercado yelled at Hernandez-Mach to stop, and Hernandez?Llach still
refused to do so. The use of the Taser, a non?deadly weapon, was not an unreasonable method to
effectuate the arrest in this situation. Draper V. Reynolds, 369 F. 3d 1270, 1278 (11th Cir. 2004) (a
single discharge from a Taser to effectuate the arrest of the plaintiff, who was pulled over because his
tag light was not properly illuminated but who was hostile, belligerent, and uncooperative, refusing to
comply with the officer?s commands, was not excessive use of force).

Similarly, because Hemandez?Llach was running towards Officer Mercado at the point in time
that Officer Mercado discharged his Taser at Hernandez-Mach, Of?cer Mercado would have also been
justi?ed in discharging his Taser at Hemandez?Llach if he reasonably believed this to be necessary to
defend himself from bodily harm while making an arrest under section Additionally, under
section 776.012, Florida Statutes (2013), if Of?cer Mercado reasonably believed that his use of force
was necessary to defend himself against Hernandez-Llach?s imminent use of unlawful force, he would
be justi?ed in using that force. As stated above, Hernandez-Mach had run over a third of a mile to
evade arrest. Based upon all of these facts, it would be reasonable for Of?cer Mercado to believe that

- Hernandez?Mach would have knocked him down onto the ground to get away, which could have
caused bodily harm to Of?cer Mercado. This is corroborated by Of?cer Mercado?s statement to
Sergeant Aguilar, which is the only statement that we have ?om Of?cer Mercado, that he tasered
Hernandez?Llach as Hernandez?Llach was coming towards him. Thus, Officer Mercado would have
been justi?ed in using the Taser as non?deadly force to defend himself against the force that he would
have reasonably believed was about to be used on him by Hernandez-Mach.

 

 

 

Staf?ng/ Review Team Taser Death:
Page?35 - SUBJECT: Officer Jorge Mercado

CONCLUSION

We devote this section of the memorandum to consideration of whether there is sufficient
evidence to initiate a Manslaughter prosecution against Of?cer Mercado for his single six (6) second
discharge of his Taser at Israel Hernandez?Mach. The question posited is straightforward: Did Officer
Mercado engage in criminally reckless behavior by showing a ?reckless disregard for human life?
when he discharged his Taser for the single six (6) second cycle at Israel Hernandez?Mach, and if so,
does Officer Mercado have a viable legal defense to such a charge.

To restate in a summary fashion the facts that we would be able to rely upon at trial, Officer
Mercado was an cit?duty police of?cer who became aware that a subject had committed Criminal
Mischief. Upon being confronted by the police, Hernandez?Mach began to run, in an effort to do
whatever he could to avoid capture. The police, whose obligation it is to enforce the laws of the State
of Florida, are not in the practice of allowing those who have committed crimes to simply run away
from the scene and escape. Rather, the evidence in this case suggests that it was only at this point,
after a chase of more than one third of a mile, between buildings and over a fence, that Of?cer
Mercado discharged his Taser at Israel Hernandez~Llach, in an effort to apprehend him after he had
committed a Criminal Mischief (felony or misdemeanor), Resisting an Of?cer Without Violence, and
Loitering or Prowling. Rather than reach for his loaded firearm, Officer Mercado instead chose to
deploy his Taser, a less-lethal device, for a single six (6) second cycle.

As prosecutors, we are required as part of our legal analysis to also consider potential bars to
prosecution as well as af?rmative defenses available to Officer Mercado. Even if we were to be able
to say that Officer Mercado must have known, or reasonably should have known, that the discharge of
his Taser for the single six (6) second cycle was likely to cause death or great bodily injury, as
discussed previously, under Florida Statute 776.05, Of?cer Mercado would be able to successfully

argue that as a law enforcement officer he did not have to retreat or desist from efforts to make a 

lawful arrest because of resistance to the arrest, and that he was justi?ed in the use of any force
necessary to arrest a felon ?eeing from justice, as well as justi?ed in using non-deadly force to
effectuate the arrest of a misdemeanant.

Similarly, because Hernandez-Mach was running towards Of?cer Mercado at the point in time
that Of?cer Mercado discharged his Taser at Hernandez-Mach, Of?cer Mercado would be able to
successfully argue that as a law enforcement of?cer he did not have to retreat or desist from efforts to
make a lawful arrest because of resistance to the arrest, and that he was justi?ed in the use of any force
that he believed to be necessary to defend himself from bodily harm while making the arrest, or if
Of?cer Mercado reasonably believed that his use of force was necessary to defend himself against
Hernandez?Llach?s imminent use of unlawful force, he would be justi?ed in using that non-deadly
force.

Accordingly, for the reasons detailed in this memorandum, and considering all .of the facts and
the law regarding the use of force, we cannot in good faith proceed with criminal charges against
Officer Mercado. The ?rst objective of the prosecutor is to make sure that innocent people do not get
charged. The second is to convict the guilty according to due process and fair play. The Florida

 

 

Staf?ng/Review Team Taser Death:
Page 36 SUBJECT: Officer Jorge Mercado

Before filing an information every state attorney should not only seek probable cause in
his investigation, but also determine the possibility of proving the case beyond and to
the exclusion of every reasonable doubt. If the latter cannot be accomplished, no
information should be ?led and the defendant should be released.

This standard has been set as well by the United States Supreme Court in United States v. Lovasco, 431
US. 783, 97 2044, 52 L.Bd.2d 752 (1977), when the highest Court in the Country stated that

It requires no extended argument to establish that prosecutors do not deviate from
?fundamental conceptions of justice? when they defer seeking indictments until they
have probable cause to believe an accused is guilty; indeed it is unprofessional conduct
for a prosecutor to recommend an indictment on less than probable cause. it should be
equally obvious that prosecutors are under no duty to ?le charges as soon as probable
cause exists but before they are satis?ed they will be able to establish the suspect?s guilt
beyond a reasonable doubt. To impose such a duty ?would have a deleterious effect
both upon the rights of the accused and upon the ability of society to protect itself."
United States v. Ewell, 383 US. 116, 120, 86 773, 776, 15 L.Ed.2d 627 (1966).

It would therefore be unethical for us to charge a crime knowing that we did not believe that we could
prove our case beyond a reasonable doubt. Under the law as applied to all of the facts, we must,
therefore, conclude that Of?cer Mereado?s actions as they relate to the single six (6) second discharge
of his Taser at Mr. Israel Hemandez-Llach were legally justified.

dredge @4

Howard Rosen Ray Araujo
Deputy Chief Assistant State Attorney Assistant State Attorney
for Special Prosecutions