HairDo’s and Don’ts

We need to have a chat about Hair. No, not the shaggy bob and I’m not talking about structured layers. My wife is wonderfully low maintenance and never bothers me with such nonsense, and I have three sons so such conversations are never overheard in our house. Who would ever listen to my advice on that topic anyhow?

And we’re sure not talking about the musical or movie. Never saw either, have no plans to.

We need to talk about the recent First District Court of Appeals decision, of Jimmy Hair v. State of Florida. Understand at the time of this post the time for a rehearing has not yet expired so it’s not final. Still, I’ve received too many calls, and heard of too many people talking about “Florida’s new law that says you can shoot an attacker even if he tried to escape.” It’s not the case. Let’s talk about Hair.

First the players, Jimmy Hair is the victim of the attack and the party claiming self-defense. Rony Germinal is Jimmy Hair’s friend.

Charles Harper is the attacker and Frye is Harper’s buddy.

The men went to a nightclub on the evening of July 20, 2007. Germinal and Harper exchanged some harsh words. Later that night, Germinal and Hair left the nightclub. Germinal was driving the car and hair was in the front passenger seat.

Harper was nearby and the men exchanged words. Harper walked over to the car occupied by Hair and Germinal and got in, but was being pulled away from the car by Frye. Harper was able to get away from Frye and got back into the car on the driver’s side. Hair had both a License to carry a Concealed Weapon, and a handgun under his seat. Hair and Harper fought in the car. When Frye tried to pull Harper out of the car again, Hair shot and killed him.

Hair claims he was attempting to use the gun as a blunt instrument to strike Harper when the handgun discharged.

Hair is arrested and being charged with first-degree murder. Fast forward to Hair’s murder trial. Hair is claiming that he is immune from prosecution under section 776.032(1), Florida Statutes (2007). The District Court of Appeals agrees in an unanimous opinion and orders Hair’s release.

At trial Hair motioned the Court for a dismissal claiming immunity. After reviewing the evidence in a hearing on the issue, the trial Court denied the motion stating that statutory immunity is irrelevant where the defendant (in our case the victim) was attempting to use the weapon as a club when it “accidentally” went off. Now we know in self-defense cases that the victim must acknowledge that the use of force was intentional, and not an accident. This is most likely what the trial Court was thinking as well.

Now we go to Section 776.032(1), Florida Statutes. The law says that a person using force as permitted in Section 776.013, with some exceptions not applicable in this case is immune from criminal action and civil prosecution.

The “Stand Your Ground” immunity claim is resolved by the trial Court following a pretrial evidentiary hearing. It is the defendant’s (victim’s) burden to prove entitlement to the statutory immunity by a preponderance of the evidence. The appeals Court concluded the trial Court made an error in a conclusion of law.

The following facts were not in dispute: The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.

Since the statute makes no exceptions from immunity when the attacker is in retreat at the time the defensive force is employed, the appeals Court found statutory immunity was appropriate, and the motion to dismiss should have been granted.

The appeals Court reasoned that since the victim knew the attacker was in the car unlawfully and used force to get into the car when he was shot, the use of defensive force intended or likely to cause death or great bodily harm was immune from prosecution.

This case is subject to a motion for rehearing.

This case may be appealed to the Florida Supreme Court.

This case is very fact specific, and even if it remains good law, unless you are in the 1st DCA’s region, and find yourself in an identical position, using force against someone trying to retreat or otherwise remove themselves from the confrontation may be a problem.

Use of deadly force against an attacker trying to retreat is not recommended. There is always the chance that the retreating attacker may simply turn to attack again, but in this case the attacker was still essentially facing the victim, so the victim was not shot in the back.

It is good to have this case in the books, but it should not be relied upon for a measured outcome.

This is important since some in the media are already saying there is a “new law in Florida” and it is legal to shoot an attacker trying to retreat. No, that’s not the law. Be careful.