A Miami cop on car hood shot driver through windshield at music festival. Is it permitted?

Miami Herald

4 days ago

Most law enforcement experts who watched the video of Miami Police Officer Mauricio Delgado lying on the hood of a car and shooting a music festival-goer through the front windshield say the officer was within his rights if he felt his life or others were in danger.
But their observations come with a caveat: It's unclear exactly what led to Delgado lying face down on the hood of Menelek Emmanuel Clarke's black, two-door BMW, the officer's weapon almost pressed against the front windshield as the car crawled north on Biscayne Boulevard.
Cellphone video taken from the scene outside the Caribbean music festival at Bayfront Park on Sunday night doesn't show the lead-up to the confrontation. The footage begins with Delgado on the car hood.
And police haven't said if the officer activated his body worn camera — which is mandatory during interactions with the public, but not during traffic enforcement.
READ MORE: Police officer shot driver outside music festival in Miami's Bayfront Park: officials
'I can't see what precipitated it, so I can't speculate,' said Dave Magnusson, a former high-ranking Miami police officer and El Portal police chief. 'What I can tell you is that the guy gets out of his car reaching for his waistband, he probably got lucky. He did then follow commands and was taken into custody.'
Police say Delgado was one of four dozen officers working a shift directing traffic on the boulevard just outside the park during the Best of the Best music festival on Sunday. They say Clarke, 21, disobeyed an order to stop and drove at a slow pace into Delgado, who somehow ended up on vehicle's hood.
Clarke's 17-year-old sister who was in the back seat, said the contact with the officer was accidental. They had just dropped their mother off who was to meet relatives with tickets to the concert, and they were looking for parking.
Clarke, who records show lives in Broward County and was born in North Carolina, was shot several times and is recovering at Jackson Memorial's Ryder Trauma Center.
Another law enforcement veteran who watched the video said the interaction raises questions. Chuck Wexler, executive director of Washington D.C.'s Police Executive Research Forum, said you'd need to review the officer's camera and surrounding surveillance video and piece together the facts to figure out exactly what happened.
'Sometimes it's a misunderstanding. It's hard to say at this point what justified the officer firing his weapon,' Wexler said. 'The video raises more questions than there are answers. You just don't know and it would be wrong to jump to conclusions.'
Strict rules on firing into moving vehicle
Miami police policy only allows officers to fire their weapons at a moving vehicle if deadly force is being used against the officer or another person by means other than the moving vehicle. Simply, unless someone inside Clarke's car was threatening Delgado harm, he should not have fired his weapon.
'The moving vehicle itself shall not presumptively constitute a threat that justifies an officer's use of deadly force. An officer threatened by an oncoming vehicle shall move out of its path instead of discharging a firearm at it or any of its occupants,' the policy states. 'The only exception is an act of terrorism where the vehicle is being used as a weapon.'
The shooting at a vehicle policy was changed and tightened more than two decades ago by Miami Police Chief John Timoney. After the policy change, Miami Police went 22 months without an officer firing a weapon at a person.
READ MORE: 'Law enforcement giant' John Timoney loses final battle to lung cancer
Late Wednesday afternoon, Miami Police said they expect to charge Clarke with several crimes before the end of the week that include aggravated battery, leaving the scene of a crash, resisting arrest with violence and failure to obey a police command.
And they still have not publicly released the name the officer who fired his weapon.
Several law enforcement sources familiar with the incident confirmed to the Miami Herald the shooter was Delgado, who works the midnight shift in Allapattah and was working traffic duty the evening Clarke was shot.
Several texts and calls to Miami's Fraternal Order of Police had not been returned as of late Wednesday.
Clarke's sister Sherylann Clarke, who was in the car during the shooting, told Herald news partner WFOR Channel 4 that her brother did not hit Delgado intentionally. She said he was trying to maneuver around the officer when Delgado jumped in front of the car.
READ MORE: Driver didn't mean to hit officer outside Miami music festival, sister says
Clarke is represented by Hollywood defense attorney Michael Orenstein, who hasn't said much about the incident.
Best of the Best goes bad
Clarke was shot inside his car on Biscayne Boulevard at Northeast Second Street just after the yearly Caribbean music festival got underway. It was about 7:15 p.m.
Most of the crowd estimated at 12,000 were in the park when Delgado ended up on the hood of Clarke's black BMW and opened fire.
Cellphone video of the incident, which was posted on the Only in Dade website and on YouTube, begins with Clarke driving north on Biscayne and going past the crosswalk at Second Street with Delgado flat on his stomach on the hood in uniform.
He's wearing a yellow vest and his weapon, in his right hand, is pointed inches from the windshield.
As the car turned slowly west on Second Street, Delgado fires at least three shots, his legs sliding off the hood on the passenger front side of the car. A flash of the muzzle can be seen and the gunshots heard.
The vehicle comes to a stop directly in front of a Miami police car. Bystanders are heard on the video asking what was happening.
Clarke jumps out of his car in a white shirt and jeans and walks quickly east toward the park, his hands going down to his waist, then up in the air as ordered. He doesn't appear to be injured.
He then obeys police commands to go to the ground, turns over and is handcuffed. Blood can be seen on the back of his shirt as an officer gets on top of him. Delgado was treated for minor injuries and released.
Orenstein said Clarke was shot three times. He was hit in the right arm and chest, which exited through his back but caused a lung to collapse. And his attorney said Clarke was also shot in the thigh.That bullet had not been removed as of Wednesday afternoon.
Police officer stationed at hospital
Orenstein, who is representing Clarke in an unrelated case in Broward County, said Wednesday that he's only seen the same social media videos as everyone else and that a Miami police officer has been stationed outside his client's hospital room at Jackson.
'At this point I don't know a lot of details and I don't believe my client committed those offenses,' Orenstein said.
The Florida Department of Law Enforcement is reviewing the shooting to determine if it was a criminal act.
Miami Police will investigate the charges against Clarke, which are expected to be filed formally when he's released from the hospital.
Miami Herald staff writer Devoun Cetoute contributed to this report.