No charges in Taser death of graffiti artist in Miami Beach

Prosecutors will not charge the Miami Beach police officer who shot a graffiti artist in the chest with a Taser, killing him and sparking protests and renewing scrutiny on law enforcement use of the stun guns.

The Miami-Dade State Attorney’s Office on Thursday met with and informed the family of Israel Hernandez-Llach, the 18-year-old known to friends as “Reefa.”

The death of young graffiti artist IsraelHernandez-Llache sparked a string of protests about the actions of Miami Beach police, who chased and Tasered him after he tagged an abandoned building. In August 2013, his mother Jacqueline Llack, left center, and sister Offir Hernandez joined scores of people protesting his death.

In August 2013, the teen led police on a foot chase after being caught spray painting the outside of an abandoned McDonald’s in North Beach. Miami Beach police officer Jorge Mercado shot the teen in the chest with the weapon, and Hernandez-Llach later died at the hospital.

Last year, in a first of its kind ruling in Florida, the Miami-Dade Medical Examiner’s Office ruled Hernandez-Llach died accidentally of heart failure “due to electric device discharge.”

Prosecutors deemed Mercado was “legally justified” in using the Taser — considered by law a less-than-lethal weapon with no “reasonable expectation” of killing anyone — in trying to arrest Hernandz-Llach.

“We cannot in good faith proceed with criminal charges against Officer Mercado,” according to a final report released Thursday by the State Attorney’s Office.

For criminal justice observers, the decision was not unexpected because of the high legal threshold in charging police officers in Florida. Under state law, police officers in Florida are afforded wide leeway to use deadly force to protect themselves and the public, and Mercado used a weapon intended to avoid killing. No Florida police officer has been charged with an on-duty shooting since 1989. Hernandez-Llach’s family is suing the Miami Beach police department.

The 36-page report offers a detailed look at what led up to the fatal Taser death of the graffiti artist.

In the early morning hours of August 6, 2013, a parks worker drove past Hernandez-Llach and two friends who were spray painting at the shuttered McDonald’s on Collins Avenue and 71st Street. He stopped and told Mercado and his partner, Cormilus Lattimore, who were parked three blocks away. When they pulled up to the McDonald’s, Hernandz-Llach bolted, with both officers giving chase on foot.

The teen ran west on 71st Street, then doubled around and went back toward Collins, ducking into an alleyway next to a defunct hotel, then coming back around sprinting west.

In all, prosecutors said, the teen ran a total of a third-of-a-mile while being chased by officers.

The huffing-and-puffing cops lost him. But officers on a nearby burglary detail saw Hernandez-Llach sprint across Harding Avenue at 69th Street, running into the courtyard of an apartment building before bursting into a small corridor hemmed in by an iron fence.

As calls went out on the radio, Hernandez-Llach jumped the fence, landing on top of a Ford Mustang parked in a public lot on Harding Avenue. It was then that Mercado, running south, encountered Hernandez-Llach – who was running north toward him.

According to the report, the teen refused commands to stop. At the moment, as the two ran toward each other, Mercado fired the X26 Taser stun gun once, from a range of about seven feet.

Hernandez-Llach crumpled to the ground. Because he appearing not to be breathing, officers summoned paramedics, who rushed him to Mount Sinai Medical Center, where he was pronounced dead later less than an hour later.

Over the years, the Miami-Dade Medical Examiner’s Office has most often ruled people shot by Tasers have died from “excited delirium,” a brain disorder – exacerbated by drugs or mental illness – that makes people grow extremely agitated and raises body temperatures to feverish levels.

However, critics are skeptical, saying that excited delirium is an unproven ailment, a way to explain away heavy-handed police tactics.

Although Hernandez-Llach had an elevated body temperature — it was a hot night and he had been running — the teen never exhibited the bizarre and rampaging behavior seen in delirium deaths.

Hernandez-Llach had smoke marijuana hours earlier, but there was no evidence he was under the influence any other drugs that morning.

In a first-of-its-kind ruling, Associate Medical Examiner Dr. Mark Shuman ruled that the cause of death was heart failure caused by “conducted energy device.” The key to the finding: Shuman noted that the bottom prong shot from the Taser hit the slender teen exactly at the spot in his chest where “there is the least skin-to-heart distance.”

And Shuman ruled that the death was accidental because there “was no reasonable expectation that the use of the device would result in death,” according to the memo.

Miami-Dade prosecutors considered charges ranging from murder to manslaughter but a host of factors led them to determine no jury would convict Mercado beyond a reasonable doubt, according to their final report.

For manslaughter, the most likely of possible charges, prosecutors would have had to prove Mercado acted with “gross and flagrant negligence.”

But under police department procedures – and state law – a stun gun is considered a less-than-lethal weapon. In fact, two Miami-Dade grand juries, in 2004 and 2005, had recommended the use of the weapon to help cut down on lethal police shootings involving firearms.

And Mercado did just that, using the stun gun instead of drawing his firearm.

The Taser company itself has touted the weapon as a safe way to restrain combative people, although it has issued cautions against shooting a suspect in the chest for fear of disrupting the heart.

Prosecutors pointed out that the foot chase was a “fluid situation” that involved both men running toward each other.

“It was not a static situation where Hernandez-Llach was standing still and Officer Mercado was also standing still and carefully taking aim,” according to the report.

Also, prosecutors said, Mercado had probable cause to arrest him for criminal mischief, at least a misdemeanor, and probably a felony because the damage to the building likely exceeded over $1,000, prosecutors said.

By law, Mercado is allowed to use “reasonable force” to make an arrest, even if a misdemeanor. And as for a felony, “he was justified in the use of any force in apprehending any felon fleeing from justice,” the report said.

“There is no legal distinction between whether the felony the subject committed was a violent felony or a property crime.”

Were Mercado to face a judge or a jury, he could have likely claimed self-defense as well, the report said.

This story was originally published July 23, 2015 at 2:55 PM with the headline "No charges in Taser death of graffiti artist in Miami Beach."