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Filing # 72189722 E-Filed 05/15/2018 04:54:21 PM

IN THE CIRCUIT COURT OF


THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CRIMINAL DIVISION "X"
CASE NO.: 2016CF005507AXX
STATE OF FLORIDA
v.

NOUMAN KHAN RAJA,


Defendant.
/

DEFENDANT’S POST-HEARING BRIEF IN SUPPORT OF MOTION TO DISMISS

I. Introduction.

The state’s central argument is that Mr. Raja was the aggressor, and that his conduct prior

to the shooting was criminally negligent. It relies on supposed violations of police practices in the

runup to the shooting as proof. But there is no way that Officer Raja was the aggressor as that term

is defined in Florida law. It would be utterly lawless to create a standard for conviction based on

police practices rather than the law, or to rely on any officer conduct other than that undertaken at

the moment the officer decided to use force, to undermine the claim of immunity.

In fact, the state’s entire argument in opposition to dismissal based on the immunity

conferred by Florida’s Stand Your Ground law, Section 776.032, Fla. Stat., rests on a theory which

has no support in the law (or the facts, for that matter). It has fallen far short in its effort to prove

by clear and convincing evidence Mr. Raja is not protected by immunity from prosecution. This

Court should grant the motion to dismiss.

A. The defense met the burden of presenting evidence to demonstrate a prima facie
case of justifiable use of force, and the state waived any objection.

Section 776.032 (4), Fla. Stat., provides:


(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from
criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the
burden of proof by clear and convincing evidence is on the party seeking to overcome the
immunity from criminal prosecution provided in subsection (1).

At the conclusion of the defense case, the state neglected to object, or otherwise move to test the

sufficiency of the prima facie case presented by the defense, so any such argument is forever

waived. In any event, a prima facie case was proved.

No detectable caselaw has developed describing what proof is sufficient for a prima facie

showing since the 2017 amendment adding subsection (4) to Section 776.032, F.S., 1 but the

defense surely met whatever standard there is at the evidentiary hearing. According to the fully

developed caselaw in the related context of the similar quantum of defense proof sufficient to

require a jury instruction on self-defense, a prima facie case is described as follows:

In order to establish a prima facie case of self-defense, a defendant must show that he (1)
was attacked in a place where he had a right to be, (2) was not engaged in any unlawful
activity, and (3) reasonably believed it was necessary to use force to prevent death or great
bodily harm. See Leasure v. State, 105 So. 3d 5, 13 (Fla. 2d DCA 2012) (citing §
776.013(3), Fla. Stat. (2008)).

Williams v. State, 2018 WL 1870518 (Fla. Apr. 9, 2018). In that context, as here, the defendant

does not have to testify to make the requisite showing; it can be made by her out of court statement

where it is introduced into evidence, as well as other circumstances. As the Courts of this state

hold:

Additionally, a defendant is not required to testify at trial to receive a jury instruction on


self-defense. Sipple, 972 So.2d at 915. A defendant’s statements admitted into evidence at
trial may be sufficient evidence for a self-defense instruction. Id. The cross-examination of
State witnesses can also support a claim of self-defense. Id. at 916. Finally, if a jury can

1
Just last Friday, a conflict among the District Courts of Appeal developed on the retroactivity of this 2017
amendment. While the Second District held it to be retroactive in Martin v. State, No. 2D16–4468, 43 Fla.
L. Weekly D1016c, ––– So.3d ––––, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), the Third District
recently disagreed, and certified the conflict. Love v. State, -- So. 3d --, No. 3D17–2112, 2018 WL 2169980
(Fla. 3d DCA May 11, 2018). In the event the amendment is ultimately found to be prospective only, the
defense contends it has proven Mr. Raja’s entitlement to “Stand Your Ground” immunity of section
776.032, F.S., by the former standard of preponderance of the evidence.
2
reasonably infer from circumstantial evidence presented at trial that the defendant had the
state of mind necessary for self-defense, then the defendant is entitled to a jury instruction
on self-defense. Johnson v. State, 634 So.2d 1144, 1145 (Fla. 4th DCA 1994).

Spurgeon v. State, 114 So.3d 1042, 1047 (Fla. 5th DCA 2013).

At the evidentiary hearing, the “walk-through” sworn statement of Officer Raja was

introduced, and in it he describes a classic case of self-defense: Mr. Jones pointed a gun at him,

twice, and he responded to the deadly threat. Both Dr. Chapman and Dr. Knox testified that then-

Officer Raja was justified and his conduct was objectively reasonable in using force, on every

single shot. Other testimony supported the defense case, but Officer Raja’s statement alone is

sufficient to establish a prima facie case of self-defense. The burden of proof then shifted to the

state to show by clear and convincing evidence that Mr. Raja was not justified in using deadly

force.

B. Officer Raja was not an aggressor under Florida law.

One Court presciently rejected decades ago the state’s “Raja caused it” argument and its

witness Mr. Libby’s lockstep opinions where in an excessive force case against a law enforcement

officer, it correctly observed that “[o]ther than random attacks, all such cases begin with the

decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided

to do nothing, then no force would have been used. In this sense, the police officer always causes

the trouble.” Plakas v. Drinski, 19 F.3d 1143, 1148–50 (7th Cir.1994). The state, primarily through

its expert Libby, suggests that Mr. Raja cannot claim immunity because he “caused the trouble.”

That theory of prosecution of a law enforcement officer has been thoroughly rejected. And as

cross examination exposed, Mr. Libby did not even know Florida law when he so opined 2, and the

2
When Mr. Libby testified at the “Stand Your Ground” hearing that Mr. Jones was entitled to
“stand his ground,” he either did not know or purposely ignored Florida law. Other evidentiary
objections to this testimony aside, Florida’s “Stand Your Ground” law specifically excludes
3
conduct he and state identified as “causing the trouble” fell far outside the legal definition of

aggressor.

Section 776.041 of the Florida Statutes defines the term “aggressor” very specifically:

Use or threatened use of force by aggressor

The justification described in the preceding sections of this chapter is not available to a
person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible
felony; or

(2) Initially provokes the use or threatened use of force against himself or herself, unless:

(a) Such force or threat of force is so great that the person reasonably believes that he or
she is in imminent danger of death or great bodily harm and that he or she has exhausted
every reasonable means to escape such danger other than the use or threatened use of force
which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and
indicates clearly to the assailant that he or she desires to withdraw and terminate the use or
threatened use of force, but the assailant continues or resumes the use or threatened use of
force.

Fla. Stat. § 776.041

The state does not contend, because there would be no evidence to support such a position,

that then-Officer Raja was committing an independent forcible felony at the time of the shooting.

That leaves it relying solely on subsection (2) of the statute, by which immunity is defeated if the

shooter “initially provokes” the use of force. But that subsection cannot apply here either. The

Florida Supreme Court has interpreted the words “initially provoke” in Section 776.041(2) to mean

civilians from taking advantage of it when the person against whom force is used is a law
enforcement officer, as was then-Officer Raja. 776.032(1), Fla. Stat. (applies “unless the person
against whom force was used or threatened is a law enforcement officer, as defined in s.
943.10(14), who was acting in the performance of his or her official duties and the officer identified
himself or herself in accordance with any applicable law or the person using or threatening to use
force knew or reasonably should have known that the person was a law enforcement officer.”).
4
“initiate an assault.” See Martinez v. State, 981 So. 2d 449, 452 (Fla. 2008). In other words, as the

defense has previously briefed, an “aggressor” under Florida law is the first person to initiate a

physical assault. And Officer Raja most definitely did not.

As the evidence showed, Officer Raja was performing his law enforcement duties checking

on what he thought was an abandoned car, which he was authorized by his sergeant to do. Mr.

Jones surprised Officer Raja by getting out of his vehicle with a gun in his hand. Officer Raja

explained what happened next during the walk-through, discussed in more detail below. The state

nitpicks Officer Raja’s actions leading up to the shooting 3, arguing they demonstrate he was the

aggressor because he supposedly violated “police practices.” 4 Through Mr. Libby and to an extent,

former Sergeant Spragg, the state says Officer Raja violated police practices by, among other

things: driving the unmarked van the wrong way up the exit; pulling in front of Mr. Jones’ SUV;

pulling in too closely; not putting his vest on before exiting the van (or not wearing it at all); not

otherwise identifying himself as a law enforcement officer (which requires disbelieving Mr. Raja’s

sworn statement during the walk-through as well as the unrebutted scientific proof words were

spoken); and saying “really?” in what the state and Mr. Libby interpret as an aggressive or

3
As argued prior to and at the hearing, the state is legally precluded from relying on the conduct
of a law enforcement officer leading up to the use of force as evidence of “negligence,” or anything
else. This Court permitted the state to introduce the evidence at the “Stand your Ground” hearing,
saying it would decide later whether it was going to consider it. The defense continues to object to
the state’s reliance on such evidence at the hearing, and urges the Court not to consider it in its
determination of the amended “Stand Your Ground” motion.
4
As argued prior to and at the hearing, evidence of “police practices” is inadmissible to show that
an officer was supposedly “negligent” or “reckless” in the use of force. While this Court ruled
some of the state’s evidence would not be admitted at the conclusion of the previous motion
hearing directed to the issue, it permitted such evidence to be introduced by the state and said it
would decide later whether it was going to consider it. The defense continues to object to the state’s
introduction of testimony regarding police practices, and urges the Court not to consider it in its
determination of the amended “Stand Your Ground” motion.
5
discourteous statement. 5 Even if this Court improperly considers this pre-shooting conduct, it is

wholly insufficient to demonstrate then-Officer Raja was the aggressor as defined by Florida law.

Any way one looks at Raja’s pre-shooting conduct, it is not sufficient to show he committed an

“assault.”

The State and its witnesses advance the novel legal theory, unsupported by any case law,

that Officer Raja’s actions in approaching the vehicle, and then Mr. Jones, make him the aggressor

because he was the proximate cause of Mr. Jones’s death. There is no authority for this proposition.

In addition to the plethora of case law holding that an officer’s actions preceding the moment when

the decision was made to use force are irrelevant, the state completely ignores Florida law

regarding the “aggressor” doctrine, pursuant to which Officer Raja was definitely not an aggressor.

The state’s argument on the aggressor issue also reveals exactly what the defense has

contended: it is precisely because of Mr. Raja’s status as a law enforcement officer that the state

invokes as the reason for this prosecution. A civilian approaching Mr. Jones in like circumstances

would be treated as a Good Samaritan, stopping to assist another driver. She would not be held to

the higher standards the state seeks to apply to the conduct of Officer Raja, and the state would be

left without its lawless “law enforcement practices” “evidence” it uses as a ruse here to try to

undermine Mr. Raja’s legal right to “Stand Your Ground” immunity.

C. The state has not proved by clear and convincing evidence Mr. Raja is not
entitled to the immunity conferred by Florida’s “Stand Your Ground” statute.

Since the defense has shown a prima facie case, “the burden of proof by clear and

5
Here, the state criticizes the words of Officer Raja (really?) but ignores the words of Corey Jones.
Mr. Jones' reply of "I’m good" indicates he was answering Officer Raja’s questions "are you ok?"
"Are you ok?" which is nowhere near threatening or assaultive language. In fact, it indicates Raja
was checking on Mr. Jones’ well-being.

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convincing evidence is on the party seeking to overcome the immunity from criminal prosecution

provided in subsection (1).” 776.032 (4), Fla. Stat. That is no easy bar to hurdle. As the Florida

Supreme Court held in In Re Hawkins, 151 So.3d 1200, 1212 (Fla.2014), “’This quantum of proof

is an intermediate standard, more than ‘a preponderance of the evidence,’ but less than ‘beyond

and to the exclusion of a reasonable doubt.’ In re Holloway, 832 So.2d 716, 726 (Fla.2002).” After

surveying the caselaw, the Fourth District described what is needed to meet the burden of proving

an issue by clear and convincing evidence and holds:

Our review of the foregoing cases convinces us that a workable definition of clear and
convincing evidence must contain both qualitative and quantitative standards. We therefore
hold that clear and convincing evidence requires that the evidence must be found to be
credible; the facts to which the witnesses testify must be distinctly remembered; the
testimony must be precise and explicit and the witnesses must be lacking in confusion as
to the facts in issue. The evidence must be of such weight that it produces in the mind of
the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the
allegations sought to be established.

Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). After hearing the evidence, it

certainly cannot be concluded this Court can have “a firm belief or conviction, without hesitancy,”

that Mr. Raja is not entitled to immunity from prosecution.

Because Mr. Raja was at the time a law enforcement officer, the state also has to prove by

clear and convincing evidence his use of force was objectively unreasonable. This is the law:

776.032 Immunity from criminal prosecution and civil action for justifiable use or
threatened use of force. —

(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or
s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil
action for the use or threatened use of such force by the person, personal representative, or
heirs of the person against whom the force was used or threatened, unless the person against
whom force was used or threatened is a law enforcement officer, as defined in s.
943.10(14), who was acting in the performance of his or her official duties and the officer
identified himself or herself in accordance with any applicable law or the person using or
threatening to use force knew or reasonably should have known that the person was a law
enforcement officer. As used in this subsection, the term “criminal prosecution” includes
arresting, detaining in custody, and charging or prosecuting the defendant.

7
The SYG immunity protection references, as applicable here, section 776.012, Fla Stat., which

provides:

776.012 Use or threatened use of force in defense of person. —

* * *

(2) A person is justified in using or threatening to use deadly force if he or she reasonably
believes that using or threatening to use such force is necessary to prevent imminent death
or great bodily harm to himself or herself or another or to prevent the imminent commission
of a forcible felony. A person who uses or threatens to use deadly force in accordance with
this subsection does not have a duty to retreat and has the right to stand his or her ground
if the person using or threatening to use the deadly force is not engaged in a criminal
activity and is in a place where he or she has a right to be.

Because Mr. Raja was then a law enforcement officer, the determination whether he was justified

in using deadly force must be evaluated under the constitutional standard of whether his conduct

was objectively reasonable. The Fourth District so holds:

The last question to address is whether the defendant's use of force in this case was
objectively unreasonable. In Brosseau v. Haugen, 543 U.S. [194], 125 S.Ct. 596, 160
L.Ed.2d 583 (2004), the United States Supreme Court found it objectively reasonable for
an officer to shoot a fleeing suspect out of fear [the suspect] endangered other officers on
foot who[m] [the officer] believed were in the immediate area, the occupied vehicles in
[the suspect's] path, and any other citizens who might be in the area. Recently in Mullenix
v. Luna, 577 U.S. ––––, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015), the United States Supreme
Court also noted “the law does not require the officers in a tense and dangerous situation
to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.”
Mullenix, [136 S.Ct. at 311], quoting Long v. Slaton, 508 F.3d 576[, 581] ( [11th Cir.]
2007). “The court also rejected the notion that the deputy should have first tried less lethal
methods ... ‘we think the police need not have taken that chance and hoped for the best[.]’
” Mullenix, [136 S.Ct. at 311–12], quoting Long v. Slaton, [508 F.3d] at 583. The arguments
advanced in Mullenix, Brosseau, and Long, supra, are no less compelling than the rationale
for the use of force in the present case.

State v. Peraza, 226 So.3d 937, 942 (Fla. 4th DCA 2017) (rev. granted Feb. 1, 2018).,

II. The substantial evidence showing Mr. Raja is immune from prosecution.

A. The physical evidence is consistent with Mr. Raja’s sworn statement showing that
he was justified in using deadly force.

8
Only a few hours after the shooting, after having been up all night, Officer Raja voluntarily

gave a sworn videotaped statement to investigators, including a walk-through of the events as he

recalled them. His detailed statement shows that he was justified in using deadly force against

Corey Jones. In the statement, Officer Raja relates how he immediately stopped and got out of his

van when he saw Mr. Jones get out of his SUV as he was pulling up to check on what he thought

was an abandoned vehicle. Raja immediately verbally identified himself as a police officer; when

he did, Corey Jones pointed his gun at him from behind the driver’s side door. Officer Raja saw a

laser pointing at him from the end of Mr. Jones’ gun, and yelled at him to “drop.” Officer Raja

pulled his own gun from his waistband and began shooting at Corey Jones. Mr. Jones began

running, but then turned around with his gun still in his hand. Officer Raja, still reasonably

perceiving an imminent threat, fired again. Mr. Jones ran, and Officer Raja called 911 to report the

event.

While the state makes much of the fact Officer Raja was wrong on the locations at which

he fired his gun and the timing of his call to 911, the physical evidence is entirely consistent with

the substance of Officer Raja’s statement showing he was justified and objectively reasonable in

deciding to employ deadly force against Jones. That physical evidence unquestionably shows

Corey Jones was holding a gun, is entirely consistent with the fact he was pointing that gun at

Officer Raja when he was shot in the right side of his chest, and with Officer Raja’s statement he

verbally identified himself as a police officer before Jones pulled the gun on him.

B. Corey Jones was holding his gun in his hand when Officer Raja approached him.

As the state’s CSI and others attested, Corey Jones’ gun was recovered at the scene, a

number of yards from his SUV and in the direction consistent with where his body was found. As

Michael LaForte testified, it is unrebutted that neither Mr. Raja’s prints nor DNA were on that gun.

9
The matching gun box could be readily seen in the open glove compartment of Corey Jones’ SUV.

As his brother testified, Corey Jones had just bought the gun a few days before, and showed it to

him.

C. Corey Jones was shot while pointing his gun at Officer Raja.

Though he had not seen Corey Jones’ gun after it was recovered in the light of day, Officer

Raja told investigators it was equipped with a laser which he saw when Jones pointed it at him. He

also was very specific: he saw red lights flickering or glinting off the barrel of the gun, which he

said was the laser sight. When Mr. Jones’ gun was located, it did not have a laser sight. However,

within two weeks of the incident, investigators from the State Attorney’s Office and the Sheriff’s

Office took Mr. Jones’ gun to the scene at 1:30 in the morning and conducted a light reflection

experiment under conditions similar to those faced by Officer Raja the evening of the shooting,

including the lighting and locations at which Officer Raja fired his gun. The light reflectivity test

was videotaped. It clearly established red lights flickering or glinting off the barrel of the gun. The

red lights were the reflection of the red stop-lights behind Officer Raja as he faced Mr. Jones

holding the gun. This was what Officer Raja had seen and thought to have been a laser emanating

from the barrel of the gun pointed directly at him. This experiment conclusively demonstrates

Corey Jones was pointing his gun directly at Officer Raja.

And the specificity with which Officer Raja identified the laser goes beyond the fact he

saw flickering or glinting. Officer Raja specifically described what he saw as a Laser Max Laser

and went on to say the Laser Max laser fits in the guide rod of the handgun. The exposed end of

the guide rod is just below the business end; the muzzle of the gun. The actual gun did not have

an actual laser; therefore, the only reason Raja makes that descriptive statement about the

10
orientation of the laser is that he saw it in the place the guide rod would be visible, just below the

muzzle.

The inescapable fact is that Mr. Jones pointed his gun at Officer Raja, which was the reason

Officer Raja used deadly force in self-defense. This evidence powerfully corroborates Officer

Raja’s walk-through testimony that Mr. Jones’ gun was pointed at him, as well as demonstrating

he was doing his best to give a truthful account to the investigators about what happened that

evening.

The forensic medical testimony is likewise consistent with Officer Raja’s testimony Jones

was pointing a gun at him when he was shot in the chest. M.E. Dr. Juste testified primarily to the

distance Mr. Jones could have traversed after having been shot in the chest but declined to offer

an opinion on the position Mr. Jones was in at the time he was shot in the right side of his chest.

The fantasy proposed to her by the state that the wound to Corey Jones' right side could be

consistent with the shooter running alongside him as he fled is not only bizarre but is totally

inconsistent with the shell casing analysis that there were two volleys of three shots from two

locations.

Dr. Marraccini provided the Court with opinions both as to the distance Mr. Jones could

have traversed after the shot to the chest, as well as opinions on various physical positions Mr.

Jones could’ve been in when he was shot, especially in the right side of his chest. While not

definitive, Dr. Marraccini demonstrated multiple physical positions showing how Mr. Jones’ right

arm would have been raised when he was shot in the right side of his chest, whether he was aiming

his gun at Officer Raja, holding it in either his right or left hand.

D. The ballistics is entirely consistent with Officer Raja’s recounting of the events.

11
The ballistics line up perfectly with the defects in the palm tree (the first volley-fresh sap)

and the pine tree, (the second volley-actual gunshot strike). There was no rebuttal offered to this

at all. No experts, nothing at all. The defense’s unrebutted ballistics evidence proves Raja's version

of what happened.

E. Officer Raja verbally identified himself as a law enforcement officer before Corey
Jones pointed his gun at him.

The AT&T recording does not reveal to the naked ear that Officer Raja verbally identified

himself as a police officer while approaching Mr. Jones. However, the physical evidence is entirely

consistent with Officer Raja’s testimony that he did. Corey Jones is plainly responding to a sound

when he says “huh?”, as the first word captured by the recording during the incident. An audio

expert, Frank Piazza, testified to the limitations of cell phone microphones, and that they are

designed to suppress background noise and enhance sounds closest to the microphone. The syncing

of the 911 call with the AT&T/Allied call by Dr. Knox proves beyond any doubt that at a time

before Raja is back inside his van, but after he passes the open door of the SUV, the cell phone

connected to the call center loses the sound of Raja's voice.

This testimony also confirms that the microphone was designed not to capture Officer

Raja’s voice identifying himself as a law enforcement officer while he was still some distance

from the cell phone. The audio expert was able to enhance the sounds on the AT&T recording. His

expert opinion, to a 100% certainty, which went unrebutted, was that there was a human voice

preceding the recorded voice of Mr. Jones saying, “huh?’ on the AT&T recording. That a human

voice was spoken was established by Frank Piazza to be from someone other than Corey Jones or

the call center. It was proven to be consistent with Mr. Raja's speech and inconsistent with Corey

Jones or the operator. This testimony also went unrebutted.

12
F. The supposedly suspicious and evidence-conflicting statements made by Officer
Raja are fully explained by human factors expert testimony and otherwise.

The state and its witnesses tried to portray several of Officer Raja’s walk-through

statements as devious, but solid scientific testimony show they are not. First, the state and its

witnesses point to the fact Officer Raja was recorded continuing to give directions to Jones after

the shooting was over. What the state and its witnesses see as suspicious is readily explained. As

Dr. Knox testified, that it was perfectly appropriate for Officer Raja to continue to try to direct Mr.

Jones, because it was dark and he could not see him.

The state and its witnesses also rely on statements Officer Raja made during the walk-

through which are inconsistent with the physical evidence, in particular his description of his and

Jones’ locations when he discharged his weapon, and Raja’s statement he made the 911 call in the

midst of the shooting, as he was chasing Jones. Dr. Knox, a human factors expert, testified to the

behavioral effects on people who have been involved in shootings, and on law enforcement officers

in particular. It is quite common for law enforcement officers to suffer cognitive distortion after

having been involved in a shooting, including time and location distortions. Dr. Chapman, and

even the state expert Mr. Libby agreed on this point. The plain fact from hundreds of shootings

Dr. Knox has been involved in is that these human factor issues are both spatial and auditory. The

911 call and Raja thinking the second volley occurred during it is a red herring. It is completely

explained by Knox's human factors testimony but also, there is ample material on the 911 call to

support that Raja said he had already "hit him 3 or 4 times." This proves he knew he had already

fired at least 4 times-and this should be the end of the state’s story on that issue because both

volleys would have to have already occurred. This is a typical, common human factors issue, not

lying.

13
Viewed from this perspective, Officer Raja’s relatively minor misdescription of his and

Mr. Jones’ locations during the two volleys of shots, and of the timing of his 911 call, are readily

explainable by something far different than the state’s take that Raja’s statements were somehow

nefarious.

Retired Sergeant Spragg’s testimony is a red herring. All he attested to is that Officer Raja

said Mr. Jones may have thrown the gun in the tall grass. During the walk-through Raja said that

Jones dropped it where he fell, which also happens to be in long grass. The abrasions to Corey

Jones' arm are consistent with Raja's walk-through where he said he saw him fall. There is asphalt

and concrete on the ground between the sign post and the railing. There is no other concrete or

asphalt anywhere else that could have caused the scrapes (LaForte testimony). Officer Arlotta’s

impeachment testimony does suggest Spragg may be confused about what Raja said and to whom

he said it. The burden is on the state to prove otherwise.

G. The only relevant and credible expert testimony on the justifiability of the shooting
is that of the defense experts.

As Dr. Chapman testified credibly and consistently, the applicable standard was that of a

reasonable officer at the time she decided to use force, and not her before or after. He opined

Officer Raja was fully justified and acting objectively reasonably at the time he fired every shot

that evening. Dr. Chapman’s view is fully supported by the facts and law, unlike Mr. Libby’s.

Mr. Libby used his understanding of police practices to variously criticize Officer Raja on:

asking to check the vehicle when, as Libby says, he should have attended to the issue at Lux and

showed no interest in helping his fellow officers there; driving up the exit when he could have

gone up 95 and turned around at an authorized location; pulling up to the SUV; pulling up close

to the SUV; driving an unmarked van; not wearing his vest either over or under his t shirt (under

for safety so not relevant); not carrying his radio; speaking discourteously to Mr. Jones, and not

14
identifying himself (which required Mr. Libby to make a credibility decision that he did not believe

Officer Raja’s sworn statement or the scientific audio proof). On cross examination, Mr. Libby

reluctantly conceded Officer Raja had to immediately get out of the van when Mr. Jones got out

his vehicle and that he could not have taken the time to put on his vest at that point.

The state conceded the accuracy of the testimony of Officer Garcia and Mr. Libby that that

Raja had to stop his car for officer safety when Corey Jones got out of his vehicle. Officer Raja

had to immediately get out of his van, had no time then to put his vest on as it would have

endangered him to do so. Even Officer Garcia on cross said Officer Raja needed the vest near him,

not on, but in this circumstance, he had to just jump out.

Mr. Libby’s testimony was plainly not based on Florida law governing both immunity and

the standard for conviction and so must be rejected in its entirety. He admitted that he did not know

Florida law, and disagreed with the well-settled standard that a law enforcement officer’s use of

force must be assessed against a reasonable officer standard, based on the moment the officer

decides to use force.

The state’s second guessing of the practices used by Officer Raja leading up to the shooting

are entirely inconsistent with the law governing this Court’s decision on whether he is entitled to

“Stand Your Ground” immunity. In fact, courts have consistently held that an officer’s reasonable

decision to use force will not be second-guessed. For instance, in Tanberg v. Sholtis, 401 F.3d

1151, 1162 (10th Cir. 2005), in excluding evidence of standard operating procedure in an excessive

force case, the Court reasoned:

To the extent that the first half of the SOP requires an assessment of an officer’s choice
between various techniques for de-escalation, it is beyond the scope of the inquiry
mandated by state and federal law, which require that an officer use reasonable, not
optimal, force. See Graham v. Connor, 490 U.S. 386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d
443 (1989) (“The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances that are

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tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation”).

There is good reason to disregard the state’s suggestions that Officer Raja should not have

driven up the exit ramp, parked his van in front of the SUV, had his vest on, or for that matter,

adopted any of the myriad “better practices” the state proposes in hindsight. Those reasons start

with former Justice Scalia’s reasoning in Whren v. United States, 517 U.S. 806 (1996), wherein he

wrote the Court would not consider such policies or best practices, for two reasons. First, the

practical one: “Indeed, it seems to us somewhat easier to figure out the intent of an individual

officer than to plumb the collective consciousness of law enforcement in order to determine

whether a “reasonable officer” would have been moved to act upon the traffic violation.” And

second, the constitutional one: “Moreover, police enforcement practices, even if they could be

practicably assessed by a judge, vary from place to place and from time to time. We cannot accept

that the search and seizure protections of the Fourth Amendment are so variable, cf. Gustafson,

supra, at 265, 94 S.Ct., at 491; United States v. Caceres, 440 U.S. 741, 755–756, 99 S.Ct. 1465,

1473–1474, 59 L.Ed.2d 733 (1979), and can be made to turn upon such trivialities.”

Whren has been followed and found to preclude evidence of police practices in a number

of cases since it was decided. In Vincente v. City of Rome, GA, 2005 WL 6032876 (N.D. Ga.

2005), the opinion of an expert was excluded to the extent the party sought to present testimony

regarding a violation of procedures by an officer during the time leading up to the use of force.

The Court, applying earlier caselaw, says this:

4. Time of Use of Force

Defendants argue that the Court should limit Mr. Cosgrove’s opinion to the
moment that Sergeant Smith used force against Hector Lopez. Consequently,
Defendants contend that Mr. Cosgrove’s opinions as to the reasonableness of
Sergeant Smith’s actions in parking his police vehicle in front of Hector Lopez’s
vehicle and in screaming obscenities at Hector Lopez are inadmissible.

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A number of courts that have addressed similar issues have concluded that the
applicable authority requires the court “to focus on the moment force was
used; conduct prior to that moment is not relevant in determining whether
an officer used reasonable force.” Elliott v. Leavitt, 99 F.3d 640, 643-44 (4th
Cir.1996) (concluding issue of whether officer should have conducted more
intensive search before placing decedent in car was irrelevant to issue of whether
officer used excessive force when officer shot decedent); see also Soller v.
Moore, 84 F.3d 964, 968-69 (7th Cir.1996) (holding evidence concerning police
procedures that governed pre-seizure activity, such as decision of off-duty police
officer to pursue drunk-driving suspect and companion and to continue pursuit,
were not relevant as to issue of reasonableness of officer’s actions in seizing
companion; evidence “has nothing to do with the key issue of whether the
force used after a suspect is collared is excessive under the circumstances”);
Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir.1991) (concluding evidence
as to alleged violation of standard police procedure by officer who failed to
employ proper backup or use a flashlight were not relevant as to issue of whether
officer used excessive force when she shot person in car; actions of officer prior
to opening car door and identifying self to passengers were not probative of
reasonableness of officer’s decision to fire shot). Applying that reasoning, the
Court finds that evidence as to the alleged unreasonableness of Sergeant
Smith’s decision to park his police vehicle in front of Hector Lopez’s vehicle
(and the related argument that Sergeant Smith created the dangerous
situation by placing himself there) and the alleged unreasonableness of
Sergeant Smith’s profane order to Hector Lopez to stop are not relevant.
Further, to the extent that Plaintiffs argue that this evidence tends to show
Sergeant Smith’s state of mind, the subjective belief or intention of the officer
is irrelevant in an excessive force case. Scott v. Edinburg, 346 F .3d 752, 756
(7th Cir.2003). The Court therefore grants this portion of Defendants’ Motion to
Exclude Expert Testimony of Michael Cosgrove.

Vincente, slip op. at 19 (e.s.). Accord, Flanagan v. City of Dallas, 2017 WL 2817424 (N.D. Tex

2017) (“For the reasons set forth above, the Court agrees. Officer Staller’s alleged violation of

police procedures leading up to the shooting is not the subject of admissible testimony. Young, 775

F.2d at 1353”). Officer Raja’s decision to use deadly force was unquestionably reasonable at the

moment it was made.

Yet the state and its expert Mr. Libby continue to assert the second-guessing scenario. In

fact, hindsight is all they rely on. While case after case holds it is not relevant whether there were

better alternatives available, the state stakes its case on its contention Officer Raja could have used

17
better methods to approach Mr. Jones. This Court should reject the state’s and its expert’s reliance

on the 20/20 hindsight that Officer Raja could have used better police practices.

Wherefore, this Court should grant the amended motion to dismiss.

I HEREBY CERTIFY that a true copy hereof has been electronically provided to BRIAN

FERNANDES, ESQ., (bfernandes@sa15.org), Office of the State Attorney and ADRIENNE

ELLIS, ESQ., (aellis@sa15.org), Office of the State Attorney, 401 North Dixie Highway, West

Palm Beach, FL 33401 on this 15th day of May, 2018.

Respectfully submitted,

RICHARD G. LUBIN, P.A.


707 North Flagler Drive
West Palm Beach, FL 33401
Telephone: 561/655-2040
rich@lubinlaw.com

By: /s/ Richard G. Lubin


RICHARD G. LUBIN, ESQ.
Fla. Bar No. 182249

SCOTT N. RICHARDSON, P.A


1401 Forum Way, Suite 720
West Palm Beach, FL 33401
561-471-9600
561-471-9655 FAX
snr@scottnrichardsonlaw.com

By: /s/ Scott N. Richardson


SCOTT N. RICHARDSON, ESQ.
FLA. BAR NO.: 266515

RALPH E. KING, III


Palm Beach County PBA
2100 North Florida Mango Road
West Palm Beach, FL 33409
Telephone: 561-689-3745
Facsimile: 561-687-0154
rickk@pbcpba.org

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By: /s/ Ralph E. King
RALPH E. KING, ESQ.
Fla. Bar No.90473

STEVEN H. MALONE
707 North Flagler Drive
West Palm Beach, FL 33401
Telephone: 561-805-5805
stevenhmalone@bellsouth.net

By: /s/ Steven H. Malone


STEVEN H. MALONE, ESQ

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