January 30, 2012 12:55 AM
LONGWOOD -- An attorney representing two men shot by a DeLand police officer plans to file a federal lawsuit accusing the department of unjustly unleashing a barrage of bullets and then engaging in a coverup.
Scott M. Miller, who practices law in Longwood, called the department's actions during the Jan. 22 shooting "a clear case of police brutality, excessive force and just poor decision making" that is among the worst cases he has seen in his 20-year law career.
"We don't live in a society of militance," Miller said during a press conference Sunday. "The officers are supposed to be there to serve and protect -- not engage in the sort of behavior where it is shoot first, ask questions later."
Miller's announcement came a week after Officer Bobby Harrelson shot Javier Perez, 37, and Leobigildo Espinoza, 36, both of DeLand. The DeLand Police Department, Police Chief William Ridgway and Harrelson will be listed as defendants in the suit, which will accuse officers of violating Perez and Espinoza's civil rights, Miller said.
Lt. Jack Waples, a spokesman for the DeLand Police Department, referred questions to Deputy Chief Randel Henderson, who did not immediately return email and phone messages Sunday. In a previous interview, Ridgway defended the shooting, saying it appeared to be a justified use of deadly force based on what he had seen so far.
Miller and police are giving different accounts of the shooting.
Authorities showed up to Perez's backyard near the 100 block of Carroll Avenue after receiving a 9-1-1 call. The caller told authorities three men hired by her parents to kill her were pointing a shotgun at her trailer, according to a recording of the call released by the Volusia County Sheriff's Office.
DeLand police say officers hid behind a privacy fence and identified themselves in English and Spanish. At that point, Espinoza grabbed what appeared to police to be a rifle, hid behind a stove in the backyard and pointed the gun at Harrelson, according to the department's account. The weapon was later determined to be a BB gun.
Harrelson opened fire, hitting Espinoza three times, according to the Police Department's account. Perez picked up the BB gun after Espinoza was hit, aimed it at officers and was shot in the right arm, according to police reports. Another man, Arnulfo Mendoza, who was in the yard at the time of the shooting, was detained and later released.
How many shots were fired is unclear. Police said Harrelson fired at least six shots with an AR-15 rifle. Neighbors said they heard more than 10 shots.
Neighbor Joshua Lindner said a bullet struck his dog, and shrapnel also grazed his 2-month-old daughter's foot. DeLand police said the child's injury might not be related to the shooting.
Miller said an investigation conducted by his law firm revealed a different set of events than those described by police. One of the witnesses his firm spoke with was Mendoza, who Miller said is friends with the men who were shot. Other witnesses have not been identified.
Miller said Espinoza and Perez had been shooting at oranges with a BB gun earlier in the day and were "simply sitting in some chairs" when the shooting occurred. Contrary to police statements, the men never grabbed the BB gun, which was 20 feet away on the stove, he said.
Neighbors also said they heard gunshots before police identified themselves, Miller said.
Three days after the shooting, Perez and Espinoza were charged with aggravated assault on an officer. Espinoza remains hospitalized at Halifax Health Medical Center in Daytona Beach, Miller said. Perez is being held on $30,000 bail.
U.S. Immigration and Customs Enforcement has also flagged Perez as possibly being in the country illegally, according to court records.
Harrelson has been placed on administrative leave with pay. An investigation by the Florida Department of Law Enforcement is ongoing.
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