Florida Immunity Takes Another Step Backward

Florida Immunity Takes Another Step Backward
copyright 2015 by jon gutmacher

I've warned folks that "immunity" in Florida is merely a word, and doesn't mean what it says.  As a practical matter "immunity" in Florida is a hybrid affirmative defense like any other defense, other than you get the opportunity of a pre-trial evidentiary hearing to test it, if you care to do so.  An excellent example of how it doesn't work is found in December 22, 2015, case of Rudin v. State, 20 Fla.L.Weekly D2823 (Fla. 1DCA 2015).  A case where the defendant was prosecuted for aggravated battery when defending himself against an attack by a relative wielding a "stick".

In that case the defendant (an adult) got in an argument with his father at the father's home, and his father grabbed a "stick" (not my description -- but the description of the appellate court) that was two inches around, and four feet long to protect himself from the defendant as the defendant advanced upon him.   The father testified he did so because his son had punched him in a previous argument. (Obviously,  he hadn't read my book)  The defendant then left the father's home and arrived at his grandmother's home down the block. However, before doing so he deliberately ripped the canvas cover of his father's truck.  As you probably have surmised, there was a history of physical confrontation between the two in the past.  (Who would have guessed?)

Dad, not being overly pleased with the unwelcome renovations to his truck decided that rather than call the cops -- he would take care of things himself, and therefore followed after his son, and confronted him at the grandmother's home.  Dad being still armed with the "stick".  (I would rather call it a "club" -- but that's because I'm not an appellate judge, and actually know what it can do).  Confronting the defendant, who "stood his ground" -- dad took a swing at the son's head.  The son (ie: "defendant") managed to intercept the swing, grabbed the stick, and simultaneously struck dad with a knife.  (Ya gotta love these families!)  In the process -- the only injuries suffered by the defendant were minor ones to his hand and wrist.

At the time of the pretrial immunity motion, the defense argued that the son was justified in using deadly force in self defense because his father was using deadly force against him -- or alternatively -- that the attack by the father was a "forcible felony", and the son had the right to use deadly force in such a situation.  The defendant did not testify at the hearing.

In rejecting the "immunity" claim in a pre-trial hearing,  the trial judge found the stick/club was not a "deadly weapon",  therefore  since there was no evidence that the defendant had a reasonable fear of death or great bodily harm (because the defendant never testified at the hearing) he had no reason to use deadly force to stop the attack.  The appellate court agreed saying that the determination of what is or is not a "deadly weapon" is one for "the trier of the fact", and is determined not by the "capability" of the weapon -- but the "likliehood" it will produce death or great bodily harm.   The appellate court noted that the injuries to the defendant were slight, and since the trial judge had examined the stick -- the trial judge was in a better position to determine if it was a deadly weapon, or not.  The concurring opinion likewise centered on how the "stick" was used by the father, and noted that whether it was a "deadly weapon" or not depended on its composition (cardboard, plastic, steel, etc), the force used, frequency of blows, and relative size and strength of the individuals involved.

In my usual insightful, in depth analysis, and just to stay in the Christmas spirit:   BAH!   HUMBUG!

Why?

Because when somebody swings a large club at your head -- anyone (other than a judge) should realize that was at least an "attempted aggravated battery", and most certainly an "aggravated assault". (An "aggravated assault" does not require contact or injury, and is also a "forcible felony")  I suggest all judges involved in this case should have someone swing a four foot long, two inch wide club at their unprotected head -- make sure they do not do anything to block it -- and I will be glad to visit them in the hospital (or grave site), and tell them:  "I told you so!"

The fact that it was intercepted is not the issue.  (unless the father was first totally disarmed).  The fact is that any reasonable person would understand that UNLESS the attack was prevented -- they were in for a possible very serious injury!

Sure -- son intercepted it.   But, dad still had possession of the club.  He was still a very serious danger -- regardless of size, and physical abilities.  Plus -- even the appellate opinion admits that the son used the knife "simultaneous" with the block.  Thus, it was used "at the moment" of the attack!

So . . .  while I am not condoning the actions of two morons -- I am saying that the lower court and appellate court totally missed the mark.  Maybe the attorneys did, too?  Maybe just having the defendant testify would have been a smart thing to do?  (that would take more knowledge about the case than I have).

Whatever,  in my opinion,  it was a valid self defense case, and immunity should have been granted on the basis of preventing a forcible felony.  (emphasize:  "preventing")  So -- as usual, nobody called me for my opinion or advise.  And,  quite frankly -- you should take this as a warning that any time the situation is not a clear-cut one of self defense  (ie:  home invasion; armed robbery; kidnapping; forcible rape; armed carjacking) -- the courts are likely to be very unfriendly to your claim of immunity.

On that note  -- have a Great New Year.

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