Violent Crimes

Florida Defendant Argues For Stand Your Ground Protection After Shootout With Police Officers

Published on: November 27, 2019 | by Lasnetski Gihon Law

In Florida, the Stand Your Ground law received a lot of attention over the years, particularly in relation to the Trayvon Martin case. The Florida Stand Your Ground law is not a particularly radical law. It is essentially a self defense law that allows a person to use reasonable force, including deadly force, in response to an imminent threat of similar harm. In other words, if a person reasonably believes someone is about to injure or kill him/her, or another person, that person can use a similar level of force to prevent that from happening. There may be issues regarding whether the other person’s threat was truly imminent and whether the suspect used a commensurate level of force, but it is generally a self defense law. What makes the Florida Stand Your Ground law somewhat exceptional is the procedural aspect of it. Rather than having to assert the Stand Your Ground defense at a trial and hope the jury sides with the defendant, which is always questionable, a defendant can file a motion with the judge that requires a hearing prior to the trial. Once the defendant makes an initial case of self defense, state has the burden of proving the defendant did not have a valid basis to use force or that the Stand Your Ground law does not apply for legal reasons, and if the state fails to do so, the judge should rule in the defendant’s favor and the case is over. A jury would never hear the case. This is an immunity rather than a defense in that if the defendant’s motion is successful, the defendant is immune from further prosecution for the offense.

In a recent case near Jacksonville, Florida, an older defendant lived at home with his adult niece. He was a security guard with no prior criminal record. He had a concealed carry permit and firearms training. One evening, someone knocked on his door, his niece answered, and some guy pulled her out of the house. The niece resisted and called for the defendant to help her. Two other men were there and helped the first man pull the niece away. The defendant grabbed his guy and ran outside. He fired a warning shot into the air. The three men shot back, and a gunfight ensued. The defendant and his niece were hit along with one of the other men.

It turns out, these three men were police officers, although they apparently never announced that fact to the niece or defendant. They went to the house in an undercover capacity to investigate the niece’s alleged prostitution offenses. They arrived in plain clothes and an unmarked vehicle and posed as customers seeking a prostitute. After the incident, the defendant was arrested and charged with three counts of attempted murder of a law enforcement officer.

Florida’s Stand Your Ground Law Does Not Apply to Defendants Already Engaged in Criminal Activity

Published on: September 27, 2019 | by Lasnetski Gihon Law

Florida’s Stand Your Ground law garnered quite a bit of attention after it was passed and surrounding the Trayvon Martin case, but it’s essentially an extension of the Florida self-defense law that allows defendants in case involving violence to petition the court for a dismissal of the charges under certain circumstances where the defendant had a legal right to use violence where he/she reasonably believed he/she was in danger of becoming a victim of violence. What is special about the Stand Your Ground law in Florida is that it is a form of immunity, and a criminal defense lawyer does not have to leave the decision to a jury, which is always unpredictable. The criminal defense attorney can file a motion with the judge and force the state to present evidence. If the judge agrees with the defendant’s self-defense claim, the case ends there, and a jury never hears it. However, there are limitations to the Florida Stand Your Ground law.

In a recent case south of Jacksonville, Florida, the defendant was charged with shooting into a building. He claimed self-defense, and his criminal defense lawyer filed a motion for immunity/dismissal under the Florida Stand Your Ground law. The defendant claimed he exited his vehicle, and someone in the building fired a gun at him so he fired back into the building. If true, this would seem to constitute a good claim under the Stand Your Ground law. However, an evidentiary hearing is required with these motions, and a video of the incident showed that the defendant exited his vehicle and pointed a gun at some people before any of the shooting started. Subsequently, someone from the building fired at the defendant, and he fired back. It is true that the defendant was seemingly defending himself when he fired his gun, but the problem for him was waving his gun at people first. Under the Florida Stand Your Ground law, a defendant cannot succeed if he was engaged in criminal conduct immediately prior to the time his self-defense claim arose. When he was waving the gun at people, he was arguably committing an aggravated assault, among other possible crimes. Because he was committing a crime when his self-defense claim arose, he cannot take advantage of the Stand Your Ground law. That law precludes relief for people involved in criminal activity. This is true even if the state does not actually charge the defendant with the criminal activity that disqualifies the defendant from relief under the Stand Your Ground law. As a result, the defendant was properly prosecuted and convicted of shooting into a building.

Florida Kindergarten Teacher Could Not be Convicted of Battery For Non-abusive Discipline of Student

Published on: October 11, 2017 | by Lasnetski Gihon Law

In Florida, the definition of battery is very broad. Of course, if you hit a person or strike them in a violent way, that would qualify as a battery without a reasonable defense, like a valid self defense claim. But the Florida definition of battery also includes an unauthorized touching. People touch other people in all sorts of ways. According to the Florida battery statute, that contact can be considered a criminal battery if the touching was unauthorized. With a statute worded so broadly, we rely on the police and the prosecutor to only make arrests and file charges when the conduct is intentionally malicious and properly serious. Of course, giving the government broad powers and relying on them to use their powers with deliberation and reservation is a scary thought.

In any case, it is rare to see the state charge a person with battery when the contact is minimal. It does happen, but fortunately it is not common. In a recent case near Jacksonville, Florida, a kindergarten teacher was convicted of battery after an altercation with a child at school. The kid was behaving poorly by yelling, throwing things and spitting. The teacher smacked the child but said she did it to try to block his spitting and throwing things at her. The child was not injured. Another teacher saw the incident, the police were called and the teacher was arrested for battery for intentionally touching the child against his will.

This case was different than a normal battery case because the defendant was a teacher. Teachers are presumed to be similar to parents under Florida law when the child is in the custody of the teacher. Teachers, like parents with their kids, have the obligation to supervise and control their students, and along with that, they have the right to discipline the children who misbehave. This includes the right to reasonable physical punishment. The criminal defense lawyer appealed the teacher’s conviction for battery. The appellate court agreed that the teacher had the right to reasonable discipline of the child who was behaving as this one was.

In Florida, a Robbery By Force Can Be Committed Without Touching the Victim

Published on: February 27, 2016 | by Lasnetski Gihon Law

In Florida, robbery is a serious felony charge. Many people misunderstand the differences among robbery, theft and burglary. A theft generally occurs when you steal something from a person outside of their presence, or not in their possession. If you leave your phone on your desk and go to the bathroom and I take it while you are gone, that would be a theft. A burglary generally involves breaking into a place, or entering a place without authorization, with the intent to commit a theft or other felony therein. If I come into your house through an open window while you are at work and steal your TV, that would be a burglary. A robbery is considered more of a violent crime. It generally involves taking something directly from a person in the person’s presence. If I push you down and steal the bag you are carrying, that is a robbery. Likewise, if I approach you and threaten you with violence if you do not give me your bag, that would also be a robbery.

Actual violence or even physical contact is not necessary for a robbery conviction. Obviously, using the threat of violence or threatening someone with a weapon to take someone’s property is considered robbery. But, there is also a form of robbery referred to as robbery by sudden snatching. This normally involves snatching property from someone’s possession, like grabbing a person around someone’s shoulder or keys from someone’s hands. However, a recent case near Jacksonville, Florida shows that such force is not always necessary for a robbery by sudden snatching conviction.

In that case, the defendant grabbed a cell phone that was on the victim’s lap. The criminal defense lawyer argued this constituted the less serious charge of theft since the victim was not holding or embracing the phone. The appellate court disagreed, and the defendant was convicted of robbery. It appears that the crime of robbery by sudden snatching occurs when a defendant grabs an item that is being carried by the victim or is on the victim. If the defendant grabs an items next to the victim, perhaps where the victim put his bag or phone down on the table or a bench next to the victim, then that would likely be theft rather than robbery. But then again, it probably depends on the circumstances. It is an important distinction as a robbery charge normally yields a more serious sentence than a theft charge.

To Use the Stand Your Ground Law in Florida, the Force Used Must Be Reasonable

Published on: December 25, 2015 | by Lasnetski Gihon Law

In Florida, a defendant charged with a crime of violence may be allowed to use the law commonly referred to as the Stand Your Ground Law to avoid prosecution for an alleged crime. The immunity aspect of this law is critical as it works differently than a normal defense. Essentially, if the criminal defense lawyer believes the Stand Your Ground Law applies, he/she can file a motion to have the case dismissed. A hearing is held, and the state has to present evidence establishing the defendant’s use of force was not reasonable under the law. The defense can present evidence showing the defendant’s use of force was reasonable. At the end of the hearing, if the judge sides with the defendant, the charge is dismissed. If the judge sides with the state, the case moves forward, but the defendant can still use a self-defense strategy at trial, and the question of guilt will be decided by the jury.

A person can successfully use the Stand Your Ground Law in Florida if he/she uses force that is reasonably necessary to prevent imminent death or bodily harm or prevent a forcible felony. In plain terms, if someone is about to cause you serious harm, you can strike that person first. But, there are limits. The harm by the other person has to be imminent (not some future threat), and it has to be a threat of serious harm. Additionally, the defendant cannot be the one who instigates the violence.

Going back to the reasonable requirement, a mild threat of violence is not sufficient to invoke the Stand Your Ground Law. For instance, if someone is threatening you with a gun, knife, baseball bat or other weapon that can clearly cause death or serious injury, you would likely be justified in using deadly force against that person to prevent being victimized first. However, if the person is approaching you with something that is not a deadly weapon, such as his hands or a stick, that would not likely be a legitimate reason to use deadly force. In the latter situation, if you use deadly force against the person, there is a good chance a Stand Your Ground motion would fail, and you would be facing serious felony charges.

Police in Florida Can Only Arrest for Resisting Arrest if There is a Legal Basis for the Initial Arrest

Published on: September 11, 2015 | by Lasnetski Gihon Law

That is sort of a convoluted title, but the issue is when police can arrest someone for resisting an arrest. In Florida, resisting arrest can be a misdemeanor or felony charge in Florida. It is a misdemeanor if a person resists arrest without violence; it is a felony charge if a person resists arrest with violence. An old joke says that if the suspect wins the fight, it is going to be a felony, and if the police officer gets the upper hand, the suspect may have a shot at coming away with a misdemeanor. In any case, whether the charge is a felony or misdemeanor is based on the subjective determination of the police officer and then ultimately the prosecutor, unless it is clear that serious violence was used to resist arrest.

However, the state cannot just arrest and charge anyone who resists the commands or arrest of an officer. The police officer must have a legal basis to stop, investigate and/or arrest the suspect to begin with. If a person is minding his own business and the police officer tries to detain the person based on suspicion and the person resists, a police officer will often arrest the suspect for resisting arrest. However, the criminal defense lawyer may file a motion to dismiss alleging that the police officer had no legal basis to detain the suspect in the first place so the resisting arrest charge is not valid.

In a recent case near Jacksonville, Florida, the police responded to a domestic dispute. When they arrived, the saw the suspect heatedly arguing with his girlfriend outside of their home. When they arrived, the suspect took the girl inside the house. The police looked through the window and did not see any illegal activity or fighting. The girlfriend ultimately exited the house with no injuries. The police ordered the suspect out of the house, but he refused. They entered his house with the K-9, and an altercation resulted between the suspect and the police. The suspect was charged with resisting arrest with violence.

Florida Stand Your Ground Law Cannot Be Used Against Police Officer Engaged in Official Duties

Published on: March 22, 2015 | by Lasnetski Gihon Law

As many people are aware due to some recent high profile cases, Florida has the Stand Your Ground law which provides that the state cannot prosecute a person who used justifiable force under the circumstances. When a defendant properly defended himself with reasonable force under the circumstances, the Stand Your Ground law establishes an immunity for the defendant so that the state cannot move forward with its prosecution of the defendant.

However, the Florida Stand Your Ground law does not apply in certain situations. For instance, a defendant cannot attempt to use the Stand Your Ground immunity when the alleged victim is a police officer engaged in the performance of his/her official duties as long as the officer either identifies him/herself as a police officer or it is clear from the circumstances that the defendant knew he/she was an officer.

In a recent case near Jacksonville, Florida, a police officer was responding to a robbery call at night. The police officer was led to the defendant’s residence and observed the defendant outside. The officer claimed to have identified himself, pulled out his gun and pointed the gun and his flashlight at the defendant. The defendant shot the police officer in response.

Defendant in Florida Can Get Two Convictions for Aggravated Battery Against a Pregnant Woman

Published on: April 25, 2014 | by Lasnetski Gihon Law

In Florida, the crime of battery is very broad and can include a lot of different actions. Basically, a battery is defined as any unauthorized touching. So, a slight push or any marginal contact can be considered a battery if the victim did not authorize the contact. A battery charge, in and of itself, may not be terribly serious if the contact is minimal, but it can become much more serious, even with minimal contact, if other factors are present. For instance, if the victim is a relative, the mother of one’s child or living in the same residence, it can be a domestic battery. Domestic battery charges usually come with greater penalties, and they remain on a person’s criminal record forever if the defendant enters a guilty or no contest plea. If the victim is pregnant, that slight contact becomes a felony charge. In that circumstance, even if the victim is only a few weeks pregnant and even though the defendant barely touched the victim who was uninjured, the defendant could be facing a serious felony charge of aggravated battery on a pregnant woman.

In Florida, a defendant can get convicted of two battery charges for the same incident. In a recent case near Jacksonville, Florida, the defendant was charged with beating the victim with a pole. The victim suffered a variety of injuries including broken bones. She was also pregnant at the time of the incident. At the trial, the defendant was convicted of aggravated battery and aggravated battery of a pregnant woman. Each of those charges comes with a potential 15 year maximum prison sentence.

The criminal defense lawyer argued that it violated double jeopardy for the defendant to be sentenced for two aggravated battery charges when he committed a single act of battery. The key questions was whether the injuries resulted from a single act or a series of acts. Because the victim had injuries all over her body, there was evidence to suggest that the defendant committed separate and distinct acts of violence against her which would allow separate aggravated battery charges.

Florida Stand Your Ground Claim Does Not Work Where Defendant Shot Victim in Back

Published on: April 10, 2014 | by Lasnetski Gihon Law

In a recent shooting case near Jacksonville, Florida, the defendant was charged with aggravated battery with a firearm after shooting the victim in the back of the leg. The criminal defense lawyer filed a Stand Your Ground motion claiming that the defendant had a right to use deadly force against the victim because the victim was threatening him. Since the victim was unarmed and shot in the back of the leg, this was apparently a difficult argument.

Under the Florida Stand Your Ground law, a person can use deadly force, including firing a gun at another person, if that person reasonably believes it is necessary to respond to an another’s use or threat of deadly force. Whether that claim is valid depends on the circumstances. When the alleged victim also has a gun and is shot facing the defendant, that is likely to be a stronger defense claim than when the alleged victim is unarmed and shot facing away from the defendant.

In this case, the defendant and the victim did not like each other and had several arguments prior to the shooting. Ultimately, the victim came to the defendant’s house to confront him. Each side gave different stories as to what happened, but the evidence was clear that the victim was unarmed and shot in the back of the leg outside of the defendant’s house. That evidence was consistent with the victim’s testimony that he turned to leave once the defendant retrieved his gun. That evidence was not consistent with the defendant’s story that he feared that the victim was going to beat him up when he fired the shot.

Florida Stand Your Ground Immunity Applies to Correctional Officers As Well

Published on: April 7, 2014 | by Lasnetski Gihon Law

After a few well publicized cases in Florida, many people are aware of the Stand Your Ground law in Florida. It really is not any sort of groundbreaking law. It is a derivation of self defense, which has been around forever. It addresses the fact that a person does not have a duty to retreat in the face of a reasonable threat and also allows a criminal defense lawyer to file a motion to have the case thrown out before it ever gets to a jury if the judge finds the defendant had a right to use reasonable force under the circumstances. But generally, it is applied as a fairly standard self defense law- a person has a right to use reasonable force to defend against someone else’s use of force or the reasonable threat of force.

In a recent Florida case not far from Jacksonville, Florida, the Florida Stand Your Ground law was asserted by a defendant who worked as a corrections officer. The defendant worked at a jail in Lake County, Florida. Apparently, he got into a fight with an inmate that resulted in multiple fractures to the inmate. He was subsequently charged with aggravated battery.

The criminal defense lawyer asserted a self defense/stand your ground claim. The court questioned whether correctional officers could use the Florida Stand Your Ground law because there are specific statutes already in place that deal with correctional facilities. Those laws have provisions that authorize the use of force by correctional officers against inmates. The higher court ruled that correctional officers can use the Florida Stand Your Ground law. The Florida statutes that deal with correctional officers do not nullify the Florida Stand Your Ground law and vice versa as the Stand Your Ground law apply to correctional officers. The higher court did not decide whether the defendant had a legitimate Stand Your Ground claim; they just ruled that a correctional officer has a right to pursue one.