South Florida Sun Sentinel

Florida’s top law enforcement agency says it is investigating whether police committed crimes while responding to February’s mass shooting at Marjory Stoneman Douglas High School.

Immediately after the shooting, Gov. Rick Scott ordered the Florida Department of Law Enforcement to investigate law enforcement’s response to the shooting, including actions by school deputy Scot Peterson, who took cover outside rather than rush into the building as teachers and children were being shot.

Now, the FDLE tells the South Florida Sun Sentinel that its investigation is criminal in nature. The claim surprised legal experts and raised questions about whether police could be held criminally liable for faltering and not swiftly taking down the shooter.

In addition, experts question whether the label of a criminal investigation is actually designed to shield public records from view. Florida law allows law enforcement to withhold some records related to active criminal investigations.

Besides Peterson, several other deputies, unsure of where the shooter was, took cover behind cars during the shooting. Police did not enter the school until 11 minutes after the first shot. Seventeen people, 14 of them students, died as a gunman marched through the school with an AR-15 rifle.

The FDLE’s communications director, Gretl Plessinger, said the agency is investigating “if there was anything illegal done by the law enforcement officers who responded to the scene that day.” She would not identify the target of the investigation, but she said it is not Broward County Sheriff Scott Israel,

“There have been a lot of bloggers who have assumed that we were looking at the sheriff,” Plessinger said. “We’re not.”

Pinellas County Sheriff Bob Gualtieri, who heads a fact-finding commission into the Feb. 14 tragedy, told the Sun Sentinel that the criminal investigation “involves the response and Peterson and a number of things.” He said he was not at liberty to say more.

The FDLE would not reveal what potential laws Peterson or any other officers may have broken that day, saying it will be up to the Broward State Attorney’s Office to decide. The State Attorney’s Office declined to clarify the matter.

“We do not know what the potential charges could be until the evidence is presented,” said Constance Simmons, spokeswoman for the state attorney.

Legal observers say an officer could be prosecuted for official misconduct for falsifying or concealing records. But such prosecutions typically involve a false arrest.

“If you could show the officer was AWOL or under the influence, there might be some case that he was involved in some sort of official misconduct that impacted his ability to respond to these events,” said former New York police officer Eugene O’Donnell, now a lecturer at the John Jay College of Criminal Justice in Manhattan and a nationally recognized expert on policing issues.

It’s “inconceivable,” however, he said, that the state would pursue a criminal case on the grounds that Peterson made a “tactical judgment” not to intervene in a mass murder. Peterson had a handgun while the intruder wielded a semi-automatic rifle.

Fort Lauderdale criminal defense attorney Bruce Zimet, who is not involved in the matter, said: “Certainly, doing a bad job is not criminal. However, lying about what you did, if you’re a law enforcement officer, could be, under certain circumstances, criminal in nature.”

Told that the FDLE is conducting a criminal investigation, Jeff Bell, president of the Broward Sheriff’s Office Deputies Association, said he was “dumbfounded.”

“I didn’t even know they were doing that,” he said.

The union represents 1,300 Broward deputies. Bell said a couple of dozen deputies were called in by the FDLE as witnesses but he knew of no deputy who has been interviewed as a suspect of a crime.

A criminal conviction against Peterson could strip him of the $8,702 monthly pension he began collecting, shortly after turning in his badge a week after the slayings. Under Florida law, a public official can lose retirement benefits if convicted of certain felonies including official misconduct.

Labeling the state inquiry as “criminal” has other political and strategic benefits, as well.

It blocks the media from accessing records under Florida’s open records law and interfering with the flow of information released by Gualtieri’s commission, the Marjory Stoneman Douglas High School Public Safety Commission, which was created by law last March to investigate systemic failures related to the shooting.

The 16-member commission has no criminal authority but is housed under the FDLE. It must produce a report to the governor and the Legislature by Jan. 1.

The FDLE said its criminal investigation also will not be completed until the beginning of next year.

The Sun Sentinel requested transcripts or summaries of interviews of commission witnesses, but the FDLE said the records are protected from public view because they relate to the criminal prosecution of the shooter, Nikolas Cruz, as well as the criminal investigation into law enforcement’s response.

Sheriff Gualtieri said publicly in June that the commission had “identified literally hundreds, hundreds of people that need to be interviewed.”

Law enforcement officers who work for the FDLE or the Pinellas County Sheriff’s Office are conducting the interviews, he said this week, and the commission is sharing information with the FDLE’s Office of Executive Investigations.

That office takes orders from the governor and “conducts complex cases where public officials are suspected of criminal activity,” according to its website.

Blurring of the lines between a criminal investigation and the commission, however, could prove problematic.

The commission has subpoenaed Scot Peterson to testify at its meeting in October. His lawyer declined to comment this week on whether Peterson will appear.

Earlier this month, Gualtieri was asked whether Peterson could face criminal charges. He said, “That’s part of what’s being investigated by the Florida Department of Law Enforcement.”

At the same time, he said he saw no basis for Peterson to invoke his Fifth Amendment right to refuse to testify before the commission. The amendment protects a person from making incriminating statements that can be used against him in a criminal case.

Frank LoMonte, executive director of the Joseph L. Brechner Center for Freedom of Information at the University of Florida, said police agencies often overuse the criminal investigation exemption under Florida’s public records law to withhold more details of a crime than necessary to avoid compromising a case.

“I don’t hear a lot of scenarios like this one, though, where there is uncertainty as to whether a crime even exists or not,” he said.

Under Florida’s public records law, an “active” criminal investigation must be one in which there is a “reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.”

Said LoMonte: “This is one where it’s really difficult to see what crime could be under investigation.”