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State v. Peraza

Florida Court of Appeals, Fourth District

August 30, 2017


         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael A. Usan, Judge; L.T. Case No. 15-15844CF10A.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Senior Assistant Attorney General, West Palm Beach, for appellant.

          Eric T. Schwartzreich and Anthony J. Bruno of Schwartzreich and Associates, P.A., Fort Lauderdale, for appellee.

          Gerber, C.J.

         The state appeals from the circuit court's final order granting a law enforcement officer's amended motion to dismiss the indictment against him for manslaughter with a firearm. The officer was indicted after shooting a man who: (1) was walking down the street with an air rifle which appeared to be a firearm; (2) failed to obey officers' commands to drop the weapon; and (3) pointed the weapon towards officers before being shot. The court found that the officer was entitled to immunity from prosecution under sections 776.012(1) and 776.032(1), Florida Statutes (2013), more commonly known as Florida's "Stand Your Ground" law.

         The state argues that, as held in State v. Caamano, 105 So.3d 18 (Fla. 2d DCA 2012), law enforcement officers are not entitled to seek immunity under the Stand Your Ground law. The state reasons that law enforcement officers already are provided a defense under section 776.05(1), Florida Statutes (2013), describing the justifiable use of force in making an arrest. We disagree with the state's argument and with Caamano. Therefore, we affirm the circuit court's order and certify conflict with Caamano.

         We present this opinion in four parts:

1) the circuit court's order;
2) the parties' arguments on appeal;
3) our examination of Caamano; and
4) our review.

         1. The Circuit Court's Order

         The circuit court wrote a well-detailed thirty-six page order documenting the court's findings of fact and conclusions of law. The court drafted the order after conducting a six-day evidentiary hearing. During the hearing, the court heard from thirty-one defense witnesses, including six witnesses tendered as experts, along with five state witnesses. The court further examined several exhibits including 911 recordings, police dispatch recordings, several dozen photographs, the air rifle, a .22 caliber rifle, and other items and demonstrative aids. The court also conducted a view of the scene.

         a. The Circuit Court's Findings of Fact

         In the circuit court's findings of fact, the court recounted the officer's testimony as follows. In 2013, the officer was on road patrol when he heard a dispatch involving a disturbance with a weapon. The officer then heard a priority one alert broadcast. The officer approached the scene in a marked unit with overhead emergency lights on, but without activating the siren. The officer saw a man walking down Dixie Highway with what the officer believed was a shotgun or rifle. The officer was fearful that the man would open fire on vehicles. As the officer drove past the man, the officer believed that the man saw him, at which point the man began walking faster. Seeing the man move faster after viewing a marked unit made the officer think the man was headed somewhere with a purpose. The officer used his vehicle to block oncoming traffic on Dixie Highway. The officer then lost sight of the man. The officer feared the man was gaining a tactical advantage. The officer heard his sergeant say, "This is going to end bad, " which added to the officer's fear. The officer and the sergeant began pursuing the man on foot. They spotted the man about twenty yards ahead. Both the officer and the sergeant shouted the commands "Stop!", "Police!", and "Drop the weapon!" The officer also could hear the sounds of other people, including children, from an adjacent apartment complex's pool area. The officer closed his distance from the man to approximately five to ten feet. The officer's heart was pounding and his thoughts were racing. The officer decided to react to the man's actions. If the man moved, the officer would follow. If the man stopped, the officer would stop. The officer and the sergeant continued to command the man to "stop" and "drop the weapon." The man stopped, but he did not drop the weapon. The officer believed that the man was planning his next move. The man then brought the rifle over his head, turned towards the officer and sergeant, and pointed the rifle right at the officer. The officer fired his gun at the man. The officer could not recall how many times he fired, but came to learn he fired his gun three times. The man died from the gunshots.

         The circuit court found that the officer's account of the incident was consistent with the other credible witnesses' testimony and the physical evidence. The court then found, by the greater weight of the evidence, that the man ignored repeated warnings to stop and drop the weapon, turned towards the officers, and pointed his weapon at the officers, causing the officer to be in fear for his life and the lives of others, prompting the officer to shoot at the man, resulting in the man's death.

         b. The Circuit Court's Conclusions of Law

         In the circuit court's conclusions of law, the court began by reciting the statutes at issue, that is, sections 776.012(1), 776.032(1), and 776.05(1), Florida Statutes (2013).

         In 2013, section 776.012(1) provided:

[A] person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony[.]

§ 776.012(1), Fla. Stat. (2013).

         Section 776.032(1) provided, in pertinent part:

A person who uses force as permitted in s. 776.012 . . . is justified in using such force and is immune from criminal prosecution and civil action for the use of such force . . . . As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

§ 776.032(1), Fla. Stat. (2013).

         Section 776.05(1) provided, in pertinent part:

A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
(1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest[.]

§ 776.05(1), Fla. Stat. (2013).

         Having reviewed the foregoing statutes, the circuit court then addressed the state's argument that the officer could not avail himself of Stand Your Ground immunity under sections 776.012(1) and 776.032(1) because, as a law enforcement officer, his use of force was governed solely by section 776.05(1). The state's argument rested on Caamano, which held, in pertinent part:

[I]f [the officer] is entitled to any immunity under either statute in this case, then such protection must flow from section 776.05. We hold that the specific language of section 776.05, titled "Law enforcement officers; use of force in making an arrest, " must apply to the behavior of law enforcement officers during the course of an arrest, rather than ...

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