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A Florida appeals court is considering whether to uphold a Broward circuit judges dismissal of a manslaughter charge against a Broward Sheriffs deputy who fatally shot a man armed with an unloaded air rifle, or to send the case to trial.

A grand jury indicted Deputy Peter Peraza, 38, for manslaughter in the death of computer engineer Jermaine McBean, 33. The sheriffs office suspended Peraza after his arrest.

McBean carried a realistic-looking rifle while walking along North Dixie Highway in Oakland Park and onto the grounds of his apartment complex on July 31, 2013, and Peraza shot and killed him.

Defense attorney Eric Schwartzreich has argued that Peraza opened fire when McBean turned toward him and other deputies and seemed to be raising the rifle as if to shoot it at them while tenants used a nearby swimming pool.

McBeans family said he could not have heard deputies orders to drop the weapon because he was wearing ear buds.

During a hearing, Broward Circuit Judge Michael Usan accepted Perazas defense that Floridas stand your ground law -- which allows the use of deadly force to stop an imminent threat -- applied to the deputys actions. Usan dismissed the manslaughter charge on July 27, 2016 and the case did not go to trial.

On Tuesday morning, three judges with the 4th District Court of Appeal in West Palm Beach heard arguments by Melanie Dale Surber, senior assistant attorney general, who seeks to overturn Usans ruling.

The trial court in this case erred as a matter of law when it found that the defendant could proceed under the stand your ground statute, Surber said. Another law that gives police immunity should have been used in Perazas defense, she said.

She also argued there were facts surrounding the case that were in dispute, including a witnesss testimony that McBean did not remove the gun that was resting on his shoulders before he was shot, which she said required review by a jury.

Surber also faulted Usans consideration of McBeans mental health history and hospitalization before his death, because Peraza was not aware of McBeans health at the time of the shooting.

Eric Schwartzreich, Perazas lawyer, said the stand your ground law describes all people and applies to police officers, too.

He called McBeans health history reputation evidence that was given in response to prosecutors questions about why McBean would turn and point the gun, as the deputies claimed.

Peraza was present for Tuesdays hearing but did not address the court.

Schwartzreich called Jermaine McBean by all accounts, an outstanding citizen and in this case, a tragedy.

After hearing arguments during the 23-minute long hearing, the judges did not indicate when they may make their decision.

Schwartzreich said Tuesdays hearing was very important, not only legally but to the community, and encompassed how minority members of the community, disenfranchised members feel they are subject to police attacks, and law enforcement officers that feel they are under attack in this day and age.

Outside the courthouse, at 1525 Palm Beach Lakes Blvd., demonstrators held signs with messages that included black lives matter and blue lives murder.

ljtrischitta@sunsentinel.com, 954-356-4233 or Twitter @LindaTrischitta

ALSO

State wants appeals court to overturn stand your ground ruling involving Broward deputy

Broward deputy won't face trial in fatal shooting of Jermaine McBean

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Appeals court asked to overturn 'stand your ground' ruling in fatal shooting by Broward deputy - Sun Sentinel