After Florida police shot Jermaine McBean to death as he walked home with an unloaded air rifle, they said there was no reason to believe he did not hear their orders to drop the weapon and that he pointed it at them.
But a newly emerged photo that shows headphones in McBean’s ears immediately after the 2013 shooting raises questions about the police version of events, including why the white earbuds were later found stuffed in the dead computer expert's pocket.
And another aspect of the police account is also being contradicted — by a man who called 911 in alarm when he saw McBean walking around with the air rifle but who also says McBean never pointed it at police or anyone else.
Michael Russell McCarthy, 58, told NBC News that McBean had the Winchester Model 1000 Air Rifle balanced on his shoulders behind his neck, with his hand over both ends, and was turning around to face police when one officer began shooting.
"He [McBean] couldn’t have fired that gun from the position he was in. There was no possible way of firing it and at the same time hitting something," McCarthy said. "I kind of blame myself, because if I hadn’t called it might not have happened."
Nearly two years later, the shooting is still the subject of an "active investigation" by prosecutors. McBean's family filed a wrongful death and misconduct lawsuit against the sheriff's office several weeks ago.
Their attorney, civil rights lawyer David Schoen, says the photo of McBean with the headphones — which he provided to NBC News — is evidence of a "coverup."
The witness who took it, a nurse who asked to remain anonymous, says she pointed out the earbuds to police at the scene, after they rebuffed her offer to provide first aid to the dying man.
A transcript shows that Deputy Peter Peraza, who fired the fatal shots, repeatedly told sheriff's investigators that he did not see anything in McBean's ears.
And the homicide detective who led an internal review told McBean's relatives in an email that officers on the scene "confirmed” he was not wearing a earpiece — after the family explained that he always had them on when he was out walking. The detective said the buds were found in his pocket, with his phone, at the hospital.
"I was highly upset," McBean's mother, Jennifer Young, said of the moment she learned about the photo. "I said, 'They lied to me. What else have they lied about?'"
"He couldn't have fired that gun from the position he was in."
The Broward Sheriff's office declined to comment on the lawsuit, the investigation and its decision to give Peraza a commendation three months after the shooting.
A spokesman for the Broward State's Attorney's Office, Ron Ishoy, said there is an "active investigaton" that will be presented to a grand jury and declined to answer questions about the photo or McCarthy's account.
The union lawyer who represented Peraza when he gave a statement to homicide Detective Efrain Torres did not respond to requests for comment.
In his videotaped statement to homicide investigators, Peraza said that he fired his service weapon after McBean "pulled the weapon up over his head and grabbed it and started to turn and point it at us."
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"I felt like my life was threatened. I had that feeling like if I would not go home that day," said Peraza, who has been on the force for 14 years but spent a decade of that working in the detention center.
"I felt like I could've been killed. My sergeant could've been killed. He could've shot somebody in the pool area. So as soon as he did turn and point his weapon at us, that's when I fired my duty weapon."
Another officer at the scene, Sgt. Richard LaCerra, told investigators that McBean "spun around" and brought the rifle over his shoulders. "I thought at that point and time he was gonna swing and point the rifle at us," he said. "And the next thing I know there was gunshots."
LaCerra said that after McBean fell, the wounded man said to him, "It was just a BB gun."
McBean, who had two degrees from Pace University in New York, worked in information technology at a Fort Lauderdale ad agency, servicing the company's computers. He wore his earbuds to listen to music, and to handle service calls, family said. He did not have a criminal record, according to Schoen and to a search of public records.
An autopsy report showed he had the marijuana compound THC in his blood and urine. An expert at UCLA told NBC News the level was on the high side but the test does not reveal whether someone is intoxicated from recent usage or used in the past.
McBean was diagnosed with bipolar disorder in 2010, shortly before he moved to Florida after a divorce, his family said. Following an episode at work six days before his death — a co-worker told police he was acting "manic" and "irrational" — he was taken to the hospital and had his medication adjusted.
When he was released, the co-worker told police, he was back to normal but decided to take the following week off.
On the afternoon of July 31, 2013, he walked to a local pawn shop where he purchased the Winchester. A police report says the shopkeeper recalled he wanted to buy a shotgun but decided on the air rifle. His family said he never showed an interest in guns and suspect he bought it on a whim.
McCarthy said he was in his car at a red light when McBean crossed the street in front of him, at a distance of six to eight feet, with the rifle.
“He had a white plastic bag around the center of it, but the barrel was sticking out one end and the stock was sticking out the other end," he said. "It was obvious it was a rifle. To be honest with you, the gun was painted camo but I wasn’t sure if it was a fake gun or a BB gun.
"He changed his position two, three times, mainly just walking down the street with it. First thing I thought was this guy is going to kill someone.”
"I kind of blame myself, because if I hadn't called it might not have happened."
McCarthy called 911 and the tapes show he told the dispatcher, with urgency and alarm in his voice, that it looked like a .22 caliber rifle or a pellet gun. "I will say this: He's not like acting crazy or aggressive with it, he's not shaking it or nothing," he told them. "I'm not going to say he's waving it, he's just walking along with it."
Two other people also called 911. One of them, a woman, said: "He's carrying what looks like some sort of BB gun, shotgun, I don't know what it is [but] it's camouflaged, and he's screaming really loud to himself. It could be a fake gun, but it looks like it could be real, too."
While McCarthy was on the phone, he saw McBean turn into an apartment complex. He said "cops came flying by" and he followed the last car onto the grounds.
Looking out his passenger window, he said, he could see officers corralling residents away from a pool off to the right and three officers moving in on McBean. Then he heard three shots.
"Bam. Bam. Bam," he said.
“He [McBean] dropped to the ground, the rifle bounced off the ground and I was sitting in my truck going, 'What the hell is this!'" he added.
"They all converged over the top of him and it looked like he was having a convulsion. You could tell he was in serious pain.”
Police interviewed a number of other witnesses, including several people who were in or near the pool and variously described McBean as acting "crazy," "weird" or "high," according to a sheriff's report. They recalled police shouting at him, but the report does not say they saw him point the gun at officers.
McCarthy told police the "rifle was still on the subject's shoulders" when the gunshots rang out, a different sheriff's report confirms.
The disabled fisherman told NBC News he was traumatized by the incident and had trouble sleeping for a month afterward.
"His birthday would have been the end of next month and I have his picture and the death [funeral] card above the computer at my house. I think about this guy constantly," he said.
He said he has since met McBean's family.
“They don’t blame me," he said. "I kind of blame myself, because if I hadn't called it might not have happened. I would still make the call but I regretted it because I had no idea they were going to zip into this place and shoot him dead."
McBean's older brother, Alfred McBean, an IT architect who lives in Pompano Beach, said he was a gentle soul who loved his work, liked going to amusement parks with his nieces and nephews, enjoyed deep-sea fishing and doted on his mother.
He said he is certain of two things: that his brother did not hear police because he was listening to loud music on the earbuds he always wore and that he would not have defied police if he did hear them.
"They could have just tackled him, or just tased him. Why shoot him three times?" Alfred Mc Bean said. "Criminal charges need to be filed.”
His mother agreed.
"He’s very missed, he was very loved and he was a loving and caring person himself," she said. "I can’t wait to get justice for him.”
Tracy Connor is a senior writer for NBC News. She started this role in December, 2012. Connor is responsible for reporting and writing breaking news, features and enterprise stories for NBCNews.com. Connor joined NBC News from the New York Daily News, where she was a senior writer covering a broad range of news and supervising the health and immigration beats. Prior to that she was an assistant city editor who oversaw breaking news and the courts and entertainment beats.
Earlier, Connor was a staff writer at the New York Post, United Press International and Brooklyn Paper Publications.
Connor has won numerous awards from journalism organizations including the Deadline Club and the New York Press Club.