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After the city of Miami agreed last winter to pay $2.5 million to settle a lawsuit alleging its police officers wantonly machine-gunned to death 72-year-old Richard O. Brown in his home, William O’Brien, the police chief at the time, called it a “good shooting.” The suit brought by the dead man’s 14-year-old daughter, he said, was settled for strategic reasons, not because police did anything wrong. But an internal city memorandum recommending the settlement challenges that assessment. The memo, which was obtained recently by the Miami Daily Business Review following a public records request, was authored by the assistant city attorney assigned to the case and contradicts the police version of events. It recounts facts that suggest a cover-up took place and urges paying the $2.5 million to avoid the “considerable risk that a jury will not only return a very large verdict against the city and the officers, but also punitive damages against the officers.” None of the officers — Evilio Nogues, Arturo Berguiristain, Ralph Fuentes, William Abraira, Eliezer Lopez, Alejandro Macias and Willie Jones — was ever disciplined. Each of the seven officers, all named as defendants in the lawsuit, still works for the department. Brown, a widower and retired house painter with no criminal record, died on the night of March 12, 1996, when police fired 122 shots, striking Brown nine times — in the neck, shoulder, abdomen, testicles, legs and left arm and hand. On that night, Miami SWAT team officers armed with Hecker & Koch MP5 submachine guns and Glock 40 semiautomatic pistols surrounded the building in the Overtown neighborhood of Miami to serve a search warrant. Police said the officers yelled, “Police” in English and Spanish. Hearing no response, police said, they used a battering ram to bash in the door to the second-story apartment at 1344 NW Seventh Court. Police said they unloaded on Brown only after he fired two shots at them. No drugs or drug paraphernalia were found in the apartment, but on the ground behind the apartment police recovered a glass coffee jar, wrapped in a dark cloth bag, containing cocaine. An inquest, a homicide investigation, a shooting review board and an internal affairs probe all cleared the officers. But Brown’s daughter, Janeka Brown, and her Fort Lauderdale, Fla., attorney, Barbara Heyer, refused to go away, calling the investigations shams. On Nov. 12, on the eve of trial and just four days after the memo was written, the settlement deal was struck. City commissioners approved the deal in January without admitting liability. The seven-page litigation strategy memo by assistant city attorney Charles C. Mays recounts the police case, then proceeds to explain why it doesn’t wash. The memo was addressed to the tort committee of the city attorney’s office. It isn’t clear what other city officials knew of its content. “The officers’ account that they knocked and announced their authority before forcibly entering the plaintiff’s apartment is contradicted by both direct and circumstantial evidence. This dispute is extremely significant because it bears not only on whether the search was constitutionally reasonable, but also adversely affects the justification for all ensuring police action,” Mays wrote. To reach that conclusion, Mays identifies five witnesses, including three neighbors, who “directly” dispute the officers’ testimony about how they gained entry to Brown’s apartment. For example, Lottie B. Davis lived next door to the Browns. After hearing a noise that night, Mays said, “she opened her front door and saw a group of men, one of whom profanely ordered her to close the door. Davis then heard glass breaking, followed by the sound of Brown’s door being broken. She then heard a continuous volley of gunfire inside the Brown apartment. Davis steadfastly maintains that the officers never knocked on the door of the Brown apartment or stated ‘police’ in English or Spanish.” Similarly, ex-officer Rolando Jacobo similarly told authorities the cops only “announced themselves as they simultaneously forced open the front door.” He also said that practice, a violation of departmental policy, is commonplace. Formerly with the Miami Street Narcotics Unit, whose officers are known as Jumpout Boys, Jacobo is now in jail for his involvement in another case, in which police planted a gun at a crime scene. Further reason to doubt the police officers’ account of their entry procedure came from a tape recording of a “Cops” television show that featured Miami SWAT and street narcotics officers executing another search warrant. Mays said what the tape showed was “strikingly similar” to the accounts of the witnesses. Then there’s the story told by the daughter. Janeka Brown said she and her unarmed dad thought they were victims of a home invasion. She said she phoned 911 at his instruction. Several calls to 911, including hers, were recorded reporting a home invasion. “She crawled between the bathtub and the toilet as bullets pierced the bathroom wall striking several objects in the bathroom,” Mays wrote. “Separate and apart from the problems attendant the method of entry, the officers’ account of firing 122 rounds in response to Mr. Brown firing twice at them presents yet another arena of problems,” said Mays. The officers, Mays said, insisted that “at all times” while they were firing they could see Brown. Such “target acquisition” is a must before firing, according to departmental rules. Yet the memo says “physical evidence” shows the bedroom door was closed when some shots were fired, and the bullet pattern on the living room wall — plus shell casings found just inside the front door — “strongly suggest” another officer also fired blindly. [Additional evidence of the lack of target acquisition cited by Mays was the fact that one officer, Macias, was shot in the back of his police vest by another officer during the raid.] Equally disturbing are Mays’ findings about a jar of cocaine, without fingerprints, that was found behind the apartment house. “The operative assumption is that Mr. Brown threw the jar of cocaine from the bedroom window. This assumption fails for several reasons,” Mays said. “The window to Mr. Brown’s bedroom is a four-panel awning type window that opens with a crank. Photographs show that the window did not have a crank.” Mays, who did not return a phone call to his office seeking comment, went on to discredit testimony by two policemen who sought to implicate Brown. One reported hearing breaking glass immediately before the shooting and later finding the cocaine, and another who reported hearing the “thump” of something hitting the ground after the shooting ended. “Simply put: The jar of cocaine cannot logically be attributed to Brown,” Mays wrote. The memo doesn’t address how the cocaine may have gotten there. Plaintiff’s lawyer Heyer claimed the drug was planted by the police. Similarly, Mays does not deal in the memo with Heyer’s assertion that police also planted the .38 revolver officers allegedly found in Brown’s hand when the smoke cleared. New Miami Police Chief Raul Martinez, a member of the shooting review board that unanimously held the shooting was justified, said in an interview last week he hadn’t seen the Mays memo. Martinez said, however, he didn’t know of anything that alters his central belief that Brown was “a bad guy” who brought on his own demise by firing first at police. “The main concern I had is the number of rounds that were fired,” said Martinez. “You don’t expect that from a finely tuned team of experts who train others.” Despite the findings and conclusions drawn by Mays, his boss, Miami City Attorney Alejandro “Alex” Vilarello, said he continues to “believe our police officers.” “Ultimately, it’s a tragic scenario, but I don’t think you can jump to the conclusion that these police officers were acting maliciously,” Vilarello said.

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