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Stretching The Law To Punish A Lawman

light bar on police car roof, detail.
photo by fsHH from Pixabay

Peace officers who are killed on the job are said to have died “in the line of duty.” But does an officer have a legal duty to advance toward mortal danger, or is such heroism a matter of going beyond the call?

Criminal charges filed this week in Florida against Scot Peterson, the disgraced former Broward County sheriff’s deputy, force us to confront that question. I suspect we will find the answers unsatisfying.

Peterson can credibly claim to be the most widely despised person in American law enforcement. He was on duty at Marjory Stoneman Douglas High School in Parkland, Florida, on Valentine’s Day 2018, when former student Nikolas Cruz engaged in a shooting rampage that left 14 students and three faculty members dead, and 17 more people wounded. When Cruz shot up the first floor of Building 12, where 11 people died, Peterson was elsewhere on the sprawling campus. But Cruz was still firing on a higher floor when Peterson arrived and took a position cowering behind a pillar, rather than going inside to confront the shooter. He remained there for 48 minutes.

After video of his behavior became public, Peterson became the subject of near-universal scorn in Florida and beyond. He resigned from the sheriff’s office within weeks of the shooting and began collecting his $104,424 per year pension in April 2018. Early this year, Peterson sold his South Florida home and relocated to a rural area of North Carolina.

Peterson returned to Fort Lauderdale earlier this week to face an administrative disciplinary hearing, where he was officially fired, despite his earlier resignation. He was then arrested in an apparent ambush by prosecutors and law enforcement. Peterson was escorted to the local jail and held overnight. He was brought the next day before a judge who ordered him to surrender his passport as a condition of bail – and who then returned him to his cell until someone else could retrieve Peterson’s passport from North Carolina.

The 11 counts against Peterson include a single perjury charge for allegedly lying to investigators, seven counts of child neglect and three counts of culpable negligence. Conviction may mean Peterson could lose his pension, though – like many aspects of this highly unusual and possibly unprecedented prosecution – this outcome is not certain. He could also face up to 97 years in prison.

There was practically no sympathy for Peterson here in Broward County, where I live. The South Florida Sun Sentinel quoted several parents of Parkland victims expressing the common view that Peterson deserves to suffer as well as to be punished. “He should rot, that’s how I feel,” Fred Guttenberg told the news outlet. Guttenberg’s 14-year-old daughter, Jaime, died on the third floor of the building, the last place the shooter reached before abandoning his weapon and blending in with fleeing students to escape. (Police arrested him off campus about an hour later.)

Many law enforcement officers go above and beyond the call of duty, in ways big and small. We celebrate fallen officers as heroes and mourn them as neighbors, friends and loved ones. My own brother, now retired, was a longtime police officer. Some of his work was particularly dangerous. But just putting on the uniform or signing up for the job means you carry a higher-than-normal risk of not returning home from work every day. You live with the risks, and so does your family, whether you choose to acknowledge or suppress this fact.

The video of Peterson’s self-preservation instinct in action was shocking precisely because we are so accustomed to police and firefighters running toward danger without hesitation. We – and many of them – have come to consider it part of the job. That is essentially the position that Broward prosecutors are staking out. But while Peterson has few defenders now, not everyone in law enforcement has been so quick to judge or second-guess the reactions of an individual who confronted a crisis that most of us, in or out of the public safety fields, will never see.

Sheriff Frank Reynolds of Cherokee County, Georgia, used the Parkland shooting as an opportunity to ask his deputies to reflect on how they might act in a similar situation. But Reynolds, a veteran who served in Iraq and a former SWAT team member, also said frankly that no one can know in advance exactly how they will respond under such pressure. “They may say they know what they would do, but nobody knows what they’re going to do in a particular moment of crisis, even if they’ve been in that same situation,” he told the Cherokee Tribune & Ledger-News.

All over America, police union representatives and their attorneys must be wrestling with the implications of Florida’s rush toward legally rough justice. If an officer can go to prison for not confronting an active shooter, should an officer – or rather, must an officer – offer to exchange herself for a hostage held at gunpoint? What is the officer’s liability if, upon racing into a school building, the officer shoots someone with a gun who turns out to be a teacher exercising authority to bring and use a weapon in defense of her students? If a suicidal individual climbs onto a ledge, must an officer climb out there too in a rescue attempt? If the officer declines and the jumper dies, can the officer face prosecution? What if the jumper takes a child, who also dies?

As H. Scott Fingerhut, a law professor at Florida International University, told the Sun Sentinel: “What we think morally is one thing. But our criminal justice systems are based on legal liability or guilt, meaning what can be proved.” Ten of the counts against Peterson require prosecutors to show that he had a legal obligation, not merely a police officer’s moral imperative, to run into that building. The perjury count will demand that prosecutors prove that Peterson was lying when, after the fact, he described what was going through his mind during the shooting. His recorded actions and statements on the radio may contradict his later accounts, but stress and guilt can both cloud memory. Hardly any of us will ever face more stress than Peterson confronted that day, nor have more reason to cope with guilt afterwards.

Some might argue that the Parkland survivors and families of the victims are entitled to see prosecutors at least bring their case against Peterson. Two rejoinders come quickly to mind. First, this is America, and we don’t do show trials in America. At least, we don’t design them as such. Second, while Parkland parents might be happy to see Peterson charged, how will they feel if he is acquitted? How will they feel if he or his attorney describes that acquittal as vindication?

Peterson’s treatment in the first 24 hours after his arrest was so calculatingly harsh that it made me wonder whether one unstated goal was to encourage him to consider suicide. Piling on, the Sun Sentinel publicly identified not just the North Carolina town to which Peterson relocated, but the street on which he lives. I expect the newspaper to disclaim any and all responsibility if Peterson harms himself – or if he is attacked.

Some cultures expect suicide of someone as thoroughly disgraced as Peterson has been. But not ours. It is not an appropriate action to encourage by any means. It is definitely not an appropriate use of our justice system.

The whole point of a justice system, in fact, is to take emotion out of the process in order to deliver fair and rational results. Charging an ex-officer with a crime that nobody previously knew was a crime does not further those ends, particularly if the charges are meant to soothe the pain of the survivors Peterson abandoned.

This is not something a lot of people in Fort Lauderdale want to hear right now, but Peterson’s failures were moral, and perhaps civil and contractual, but likely not criminal. Trying to redefine them after the fact does not do justice to the Parkland victims, nor is it likely to deliver it to their families.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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