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.
Friday, August 21, 2009
A Brief inquiry into the nature of a self-defense case, Part I
“It is well settled that, if a man is attacked, he has a right to defend himself. If the attack is of such nature as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will prevent harm, he has the right to kill the assailant.” – Unknown Judge. Cir. 1800
The basic elements required to maintain a self-defense case include:
The victim had a reasonable belief that she was in imminent danger of great bodily harm or death.
The victim believed that she, or a third party, was in such imminent danger that the victim could only save herself, or the third party, through the use of deadly force.
The victim used no more force than was needed under the circumstances.
The victim acknowledges that her use of force was intentional, and not an accident.
The victim was not the initial aggressor, nor injected herself into the situation raising the aggression.
Height, weight, and physique of both the victim and attacker are considered. If the victim is smaller, lighter, frailer, or weaker than the attacker, the attackers’ body may provide a sufficient weapons’ threat against the victim. The greater the disparity of force, the easier it is to justify a response.
It is unnecessary that an armed attacker have his gun aimed at the victim for the victim to respond to a threat. If the victim sees a firearm in the waistband of the attacker, the victim may respond since an untrained attacker can draw a gun and shoot in less than one second.
Displaying a firearm as a deterrent against a threat constitutes use of a firearm, but like a warning shot is unwise.
A victim is in the best position if she uses a firearm and ammunition similar to that used by law enforcement. Heavily altered firearms and reloads can be a problem. The law abiding citizen uses factory self-defense ammunition.
A quality holster is beneficial. Resist carrying a handgun without a holster.
To be continued.....
The basic elements required to maintain a self-defense case include:
The victim had a reasonable belief that she was in imminent danger of great bodily harm or death.
The victim believed that she, or a third party, was in such imminent danger that the victim could only save herself, or the third party, through the use of deadly force.
The victim used no more force than was needed under the circumstances.
The victim acknowledges that her use of force was intentional, and not an accident.
The victim was not the initial aggressor, nor injected herself into the situation raising the aggression.
Height, weight, and physique of both the victim and attacker are considered. If the victim is smaller, lighter, frailer, or weaker than the attacker, the attackers’ body may provide a sufficient weapons’ threat against the victim. The greater the disparity of force, the easier it is to justify a response.
It is unnecessary that an armed attacker have his gun aimed at the victim for the victim to respond to a threat. If the victim sees a firearm in the waistband of the attacker, the victim may respond since an untrained attacker can draw a gun and shoot in less than one second.
Displaying a firearm as a deterrent against a threat constitutes use of a firearm, but like a warning shot is unwise.
A victim is in the best position if she uses a firearm and ammunition similar to that used by law enforcement. Heavily altered firearms and reloads can be a problem. The law abiding citizen uses factory self-defense ammunition.
A quality holster is beneficial. Resist carrying a handgun without a holster.
To be continued.....
Wednesday, August 19, 2009
Can you now kill a retreating attacker? Maybe!
For those of us that have taken classes or studied Use of Force, we know it is generally the case that when an attacker is retreating, it is unlawful to use deadly force against the attacker. Instead, we should just let the guy go and report the attack to the police. Now it seems someone used deadly force against their attacker, and while they are claiming that the gun went off accidentally (Yea, right!), although the trial court didn’t buy their argument, the appeals court did.
Please understand that I do not recommend that you use deadly force against someone that is trying to escape. This being stated, the court ruled it lawful in this situation and we are reporting the decision. It’s always possible that this ruling will be overturned.
The First District Court of Appeals published a unanimous opinion today declaring that should a person legally use deadly force, in self-defense, against an attacker that is possibly retreating, that person is immune from prosecution under Section 776.032(1) Florida Statute.
In this case the attacker unlawfully entered the victim’s car. The attacker’s acquaintance tried to remove the attacker from the car when a fight broke out in the car. The victim had a concealed handgun under his seat, and a License to Carry a Concealed Weapon or Firearm. As the attacker’s friend tried to remove the attacker from the victim’s car, the victim shot the attacker. The victim contends he was only trying to strike the attacker with the gun, and it accidentally discharged. The attacker died.
The trial court ruled that statutory immunity was irrelevant in matters where the victim was attempting to use a firearm as a “club” and it accidentally discharged. Since the court found there were disputed issues of material fact, pretrial immunity could not be granted.
The First District Court of Appeals addressed the “Stand Your Ground” law in the 2008 case of Peterson v. State, where it analyzed sections 776.013 through 776.032, Florida Statutes. Section 776.013(1) states,
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
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.
Once again, the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
The victim was aware that the attacker had unlawfully and forcibly entered the vehicle when he was shot. The victim was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1).
The Attorney General’s Office seems to disagree with this ruling. The ruling was unanimous, and I’ll be surprised if the Florida Supreme Court changes the ruling.
In the meantime, tread carefully with this one. I do not recommend that you use deadly force against someone that is retreating.
Please understand that I do not recommend that you use deadly force against someone that is trying to escape. This being stated, the court ruled it lawful in this situation and we are reporting the decision. It’s always possible that this ruling will be overturned.
The First District Court of Appeals published a unanimous opinion today declaring that should a person legally use deadly force, in self-defense, against an attacker that is possibly retreating, that person is immune from prosecution under Section 776.032(1) Florida Statute.
In this case the attacker unlawfully entered the victim’s car. The attacker’s acquaintance tried to remove the attacker from the car when a fight broke out in the car. The victim had a concealed handgun under his seat, and a License to Carry a Concealed Weapon or Firearm. As the attacker’s friend tried to remove the attacker from the victim’s car, the victim shot the attacker. The victim contends he was only trying to strike the attacker with the gun, and it accidentally discharged. The attacker died.
The trial court ruled that statutory immunity was irrelevant in matters where the victim was attempting to use a firearm as a “club” and it accidentally discharged. Since the court found there were disputed issues of material fact, pretrial immunity could not be granted.
The First District Court of Appeals addressed the “Stand Your Ground” law in the 2008 case of Peterson v. State, where it analyzed sections 776.013 through 776.032, Florida Statutes. Section 776.013(1) states,
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
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.
Once again, the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.
The victim was aware that the attacker had unlawfully and forcibly entered the vehicle when he was shot. The victim was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1).
The Attorney General’s Office seems to disagree with this ruling. The ruling was unanimous, and I’ll be surprised if the Florida Supreme Court changes the ruling.
In the meantime, tread carefully with this one. I do not recommend that you use deadly force against someone that is retreating.
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