Tuesday, May 23, 2006

Air Marshals to avoid prosecution

Michael Pasano and Paul Calli represent the air marshals who shot and killed a passenger. The marshals apparently will not be prosecuted.

Here are some snippets from the report:

On December 7, 2005, Mr. Rigoberto Alpizar and his wife boarded American Airlines Flight 924 from Miami International Airport to Orlando, Florida. Shortly thereafter, Mr. Alpizar abruptly traveled down the aisle toward the front of the plane passing Federal Air Marshals 1 and 2. The air marshals followed Mr. Alpizar onto the jetway. Federal Air Marshals 1 and 2 shot and killed Rigoberto Alpizar on the jetway connecting Gate #42 of Concourse D at Miami International Airport to an American Airlines airplane flight 924. Mr. Alpizar expired on the scene.

The shooting death of Mr. Alpizar, while tragic, is legally justified in light of the surrounding circumstances presented to the air marshals. It should be noted that both air marshals demonstrated remarkable restraint in dealing with Mr. Alpizar. Florida Statute §901.1505(2)(a) and (b) Federal Law Enforcement Officers; Powers, empowers federal officers engaged in the exercise of their federal duties to make a warrantless arrest of any person who commits a felony that involves violence. The statute further empowers them “[t]o use any force which the officer reasonably believes to be necessary to defend … himself or another from bodily harm while making the arrest or any force necessary… in arresting any felon fleeing from justice when the officer reasonably believes either that the fleeing felon poses a threat of death or serious physical harm to the officers or others or that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.” When Mr. Alpizar ran onto the jetway stating that he had a bomb and threatened to detonate it, given that he had a backpack strapped to the front of his chest and failed to comply with commands to stop and desist, the air marshals had probable cause to arrest Mr. Alpizar for violations of Florida Statute: 1. §782.04(1) and (2) and §782.051: The attempted murder of the crew member and/or every passenger aboard American Airlines Flight 924 and/or in relative proximity to him, including those in the airport terminal, through a) aircraft piracy and/or b) the unlawful throwing, placing or discharging of a destructive device or bomb and/or c) the murder of another human being and/or d) the commission of a felony that is an act of terrorism or is in furtherance of an act of terrorism, all of which are forcible felonies pursuant to §776.08. 2. §790.161: Making, possessing or throwing projectile. Placing, or discharging any destructive device or attempt so to do, a forcible felony pursuant to §776.08. 3. §790.162: Threat to throw, project, place, or discharge any destructive device, a forcible felony pursuant to §776.08. 4. §790.163: False report about planting bomb, explosive, or weapon of mass destruction. 5. §775.30: Terrorism, a forcible felony pursuant to §776.08. Thus, under §901.1505 the air marshals could make a warrantless arrest of Mr. Alpizar because they reasonably believed he was committing, our would commit, multiple felonies involving violence in their presence. As such, they could use the force they thought necessary to defend themselves and others from bodily harm while making the arrest or in preventing Mr. Alpizar from fleeing because he reasonably appeared to pose a threat of death or serious physical harm to the marshals and others. In addition, under Florida Statute §776.012 Use of Force in Defense of Others, the air marshals could stand their ground and use deadly force because Mr. Alpizar’s actions reasonably conveyed a threat of imminent death or great bodily harm to themselves and others and served to prevent said harm or the imminent commission of a forcible felony as enumerated above. It is factually and legally irrelevant that some passengers did not hear Mr. Alpizar say anything about a bomb. It is clear that those persons toward the front of the aircraft did, as illustrated below. Mr. Alpizar Heard “bomb” Did not hear “bomb” Most notably, the person with the least motive to fabricate, Mr. Alpizar’s wife, admits that her husband said he had a bomb. She also affirmed that her husband failed to comply with F.A.M. 1’s and 2’s repeated commands. Furthermore, it is factually and legally irrelevant whether Mr. Alpizar actually had a bomb. The presence of a bomb would not convert an unjustified shooting into a justified one. Likewise, the absence of a bomb cannot convert a justified shooting into one that is unjustified. Under the same rationale, it is factually and legally irrelevant whether Mr. Alpizar actually suffered from a mental illness or whether he was suffering from an episode of said illness at the time of the shooting. It is factually and legally irrelevant that the air marshals could assume that Transportation Safety Administration personnel cleared Mr. Alpizar to enter the subject concourse, and, thus, posed no threat to persons or aircraft. The air marshal service exists as a contingency in tacit acknowledgement that those with lethal contraband and/or illegal purpose and intent may succeed in boarding an airliner. It is factually and legally irrelevant that Mr. Alpizar’s wife expressed aloud that her husband was sick. There is no evidence that the air marshals ever heard this statement. In fact, those passengers that did hear such comments agree that she made these comments near where she and Mr. Alpizar were seated and/or only after the shooting, but never near the air marshals. Even if the air marshals did, or should have heard, her statements, it would not alleviate the responsibility of the air marshals to deal quickly and decisively with the issue presented. In a post-September 11th and Madrid bombing world, the air marshals were faced with a man on an American Airlines flight clutching a backpack on his chest, claiming to have a bomb and threatening to detonate it while heading back toward the aircraft. Under these circumstances, there simply is no room for delay for the purposes of conducting the type of investigation that hindsight offers. Additionally, the statements by Mr. Alpizar’s wife, if heard by the marshals, are also subject to various interpretations. “He’s sick” is certainly not the type of statement that the ordinary person, given the circumstances, would automatically assume meant that Mr. Alpizar suffered from a mental illness. Furthermore, the air marshals could have interpreted the situation to be that the woman was acting in concert with the man to create the delay and indecisiveness necessary to accomplish their task. It is factually and legally irrelevant whether F.A.M.s 1 and 2 complied with their department’s policies and procedures. Whether the air marshals actions are justified or not in the State of Florida is independent of whether they abided by rules set by a federal agency. For this reason, the department’s policies and procedures, if any, were not evaluated.

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