Law of Self Defense: Use of Deadly Force Against Shoplifter Stealing A Hatchet
The facts of this case involve issues of both defense of property and defense of person.
On October 3, 2018, Michael Dunn—a City Commissioner for the city of Lakeland, FL—shot and killed Cristobal Lopez as Lopez shoplifted a hatchet from Dunn’s store, reports TheLedger, a local paper.
The shooting occurred as Dunn was attempting to stop Lopez from leaving the store with the hatchet. The store’s security recording captured the struggle at the door, the shooting, and the rapid demise of Lopez. You can be view below our video analysis of this shooting:
The facts of this case involve issues of both defense of property and defense of person.
Defense of Property as Justification for Deadly Force
In this instance the defense of property issue is limited to the defense of least-defensible (tangible) property rather than the defense of highly-defensible property (such as a dwelling), which would provide for more relaxed conditions for the use of deadly defensive force.
The tangible property in this instance is the hatchet Lopez attempted to shoplift.
The use of force in defense of tangible property is governed by Florida law by §776.031, which allows for the use of force in defense of property against a person who is attempting to commit criminal interference, like theft, of that property.
Here Dunn clearly had right of possession to the hatchet in his store and Lopez’s attempt to steal that hatchet was also clearly criminal interference with that property. Accordingly, Dunn was entitled to use force against Lopez to the extent necessary to prevent Lopez’ criminal interference with that property.
However, §776.031 explicitly provides that whatever degree of force is used in defense of such tangible property, the use of deadly force is not permissible (“…except deadly force…”). Shooting and killing Lopez unambiguously qualifies as deadly force. So Dunn cannot justify his use of deadly force as defense of property.
Defense of Person as Justification for Deadly Force
This leaves Dunn with defense of person as his sole remaining legal justification for his use of deadly force. Florida has several statutes dealing with the use of deadly defensive force in defense of persons, including §776.012 Use or threatened use of force in defense of person and §782.02 Justifiable use of deadly force.
In summary, both §776.012 and §782.02 that provide for the use of deadly defensive force in defense of persons require that either the defender be facing an imminent threat of death or grave bodily harm or resisting an attempt by that other person to murder him or commit a forcible felony upon him.
Evidence of an Imminent Deadly Force Threat is Weak
In viewing the surveillance video, however, it is not at all clear that Dunn’s use of deadly force, at the moment it was used, was necessary to prevent his own death or great bodily harm.
Although Lopez may have held the hatchet—a potentially deadly weapon—in his right hand, that hand was extended away from Dunn and used to open the store’s door in an apparent effort to escape with the stolen property, and the hatchet was not held or wielded in a threatening manner, nor to murder Dunn or commit a felony upon Dunn.
An image showing the two men’s relative positions at the moment Dunn shot Lopez, screen captured from the surveillance video, is the featured image at the top of this post.
The facts of this case as we know them so far do not appear to legally justify Dunn’s actions. Given the binary nature of justification defenses, should Dunn’s justification claim fail he’s left with 100% criminal liability for killing Lopez. Indeed, if it merely appears that Dunn’s justification claim is vulnerable to attack, that alone may be sufficient to encourage prosecution.
Was It Worth It?
The technical legal details aside, it’s also worth asking what I urge all my students and clients to contemplate—will that use of force have been worth it?
In this case Dunn killed Lopez over a $16 hatchet. Even if no charges are ever brought against Dunn, he still exposed himself to at least the potential of a murder trial, not to mention having to live with killing a man over $16.
And should charges be brought, and Dunn convicted, he faces perhaps the rest of his life in prison—over a $16 hatchet. I expect it isn’t hard for anyone reading this to come up with other ways Dunn could have dealt with Lopez’s theft that includes a reasonable prospect of recovering the hatchet, without resulting in Lopez’s death and Dunn’s criminal prosecution.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Comments
Good write up. As frustrating as it might be for business owners, you can’t be putting caps in shoplifters as they run out the door.
and yet the more thats done the less shopfitting is done.
This is another political prosecution, in the same vein as Thugvon Martin. It is a waste of taxpayer money. Lopez was a loser, non productive and a thief. Dunn is a productive citizen, earning his way and paying taxes. Now, we have a prosecutor trying to destroy a productive citizen for defending his property rights and himself.
Like so many arguments for behaviors which are at best of questionable result, I would bet that any actual statistical evaluation would show that there is no impact whatsoever on the rate of shoplifting flowing from the shooting of a shoplifter. There certainly hasn’t been any decline due to their imprisonment. In fact, there is some evidence that penalties have no effect in discouraging any kinds of misbehavior, from kids’ idiotic childhood stuff all the way to serious violent crimes. The basic problem is that there are many people who are jerks. Punishment doesn’t appear to alter their attitudes, much less their behavior.
Why hot? Criminals weigh risk of doing business just like anyone else. If ones of the risks of simple shoplifting is sudden death, the shoplifting rate will go down.
He’s toast, one way or another.
The hatchet was most likely still stuffed down in the leg of the pants. So that meant he wasn’t threatening, just someone stealing a $16 item and trying to flee. Could have been a box of candy since it wasn’t in a position to do the store owner any harm.
Maybe a really good lawyer can get him off, or much reduced charge. Either way, he will wish he didn’t shoot the guy someday. Maybe he already does.
This is going to be a life changing event for both.
The video shows what looks like the hatchet in his right hand. It’s not clear if it’s in some kind of packaging.
What strikes me about that video is that both guys look so nonchalant.
No big deal to shoot the guy.
No big deal to avoid being shot.
I’ve seen more emotion when a big brother tries to keep his little brother from getting a football.
I’m gonna have to go with the store owner on this one and vote not guilty.
Yup. He was engaged in an altercation with an armed man who was in the process of committing a crime. As I’ve said before, a peaceable defender of his own life and property has an absolute right to both his property and his life, and therefore has an absolute right to assure that he preserves his life while protecting his property. On the other hand, the criminal has no right to put the life of an innocent person into jeopardy, nor to threaten to do so. Although this could have gone south for the store owner in a heartbeat and his actions were unwise, he had every right to do what he did. No way I’d convict.
Intent is important … there was only one person that was operating with criminal intent … that was Mr. Lopez. He entered the store, with or without criminal intent, but when he went to leave the store, his criminal intent was obvious, as well as his intent to do whatever was necessary to steal Mr. Dunn’s property. Mr. Lopez KNEW Mr. Dunn had a weapon, yet chose to use violence against Mr. Dunn. I can’t blame Mr. Dunn, he was facing an armed thief. It is easy to see from the camera that Mr. Lopez was trying to run, betting Mr. Dunn wouldn’t shoot, but to Mr. Dunn … up close, the right arm starts to go up, in that nanosecond it looked like he was going to swing the hacket toward Mr. Dunn. If I were on that jury, if one becomes necessary, I would look at all the evidence, but I believe the momentary movement of Lopez’ right arm, as he was at the door, would be hard to ignore.
I haven’t been in the store owners shoes so I am not sure what I would do but I would hope I wouldn’t kill a person over a hatchet. I can imagine the emotions at that moment and with a gun in one hand, it is easy to see that it would be brought to bear once physical contact was made. It would seem to me that Lopez would drop the hatchet and run when he saw the gun but he didn’t. If I was a store owner I would keep my gun BEHIND the counter and never bring it out as someone was leaving my store. There are hard people in this world who see nothing wrong with killing for theft but unless it was in my home with me there I couldn’t do it.
I agree.
I caught someone burglarizing my detached garage at home. I had already decided that unless someone was breaking into my house, or was actively threatening me, I would never pull a gun on them, because to do so might very well lead to me shooting and killing them. I really don’t want to shoot/kill a man for stealing stuff from my shop no matter how valuable the tool(s).
Long story short. I struck him with an unsharpened entrenching shovel. It really %&^# him up – and he ran away literally yelping in pain.
I think the store owner had essentially committed himself to shooting the next thief that tried to steal from his shop. Who knows, people may steal from the shop on a daily basis. He was probably fed up with these brazen acts of theft and said to himself “the next MF’r that steals from me gets whacked.”
The thief? Pretty brazen to do what he did. To think he could just muscle his way out of the shop with no consequences? Well, he was wrong. Dead because he was too cheap to pay for a $16 tool.
A well trained attack dog would’ve put a stop to the whole thing.
“Long story short. I struck him with an unsharpened entrenching shovel. It really %&^# him up – and he ran away literally yelping in pain.”
Even an unsharpened e-tool is a deadly weapon. I’m aware of a case (offered in the context of “use enough gun”) that involved two neighbors arguing in their adjacent yards. One had a shovel. He apparently had no criminal intent as he was simply using the shovel as a tool for digging in his yard. There is nothing to indicate he had sharpened it. Most people who use shovels as gardening tools don’t even think about sharpening them (although some do as there are perfectly innocent reasons to do so; for instance it makes it easier to cut sod).
As the argument escalated the other neighbor pulled a .25 ACP pistol and pumped every miniature round from his miniature gun into his neighbor. Who got royally P.O.d and proceeded to hack his neighbor to death with his gardening tool.
Lessons?
– Use enough gun
– Don’t underestimate the power of the shovel. Or any gardening tool. There are reliable reports from Africa of women killing attacking lions with hoes. The Germans in WWI used to go over the top with shovels because bayonets tended to get stuck in their opponents bodies but shovel would cut clean through.
“A well trained attack dog would’ve put a stop to the whole thing.”
It’s like the horse vs. mule debate. As an all around riding animal a really good mule is better than a really good horse for most people. I say this as something of an expert as I grew up in Oakland and lo those many years ago I had a job mucking out Charlie O’s stall.
https://whitecleatbeat.com/2016/05/26/oakland-athletics-first-mascot-charlie-o-mule/
Your odds of getting a really good riding mule, however, range from slim to none. On
Evil electrons are working against me.
On the other hand an average horse is for most people better than an average mule as a riding animal.
Which is the long way around the barn to my view on guard dogs. Faggetaboutit. I rarely use Wikipedia a source unless I can independently verify the information. In this case I can.
https://en.wikipedia.org/wiki/Schutzhund
“Schutzhund (German for “protection dog”) is a dog sport that was developed in Germany in the early 1900s as a breed suitability test for the German Shepherd breed. The test would determine if the dog displayed the appropriate traits and characteristics of a proper working German Shepherd. Today, it is used as a sport where many breeds other than German Shepherd Dogs can compete, but it is such a demanding test that few dogs can pass.”
A friend of mine in a suburb of Sandy Eggo left the Navy to run a kennel and breed Rottweilers. He also trained protection dogs and had a test to find out which dogs were suitable. Dogs that are too mild on one end of the scale or just vicious or afflicted with rage syndrome (believe it or not the mild looking Springer Spaniel is afflicted with rage syndrome a lot) are not suitable. Thankfully the dogs that are on the vicious, rage syndrome end of the scale are rare, but if your dog is on that end of the scale you need to put it down. Unless you can live with it biting some child’s face off.
My friend was like me; we won’t put up with a vicious dog. Unbelievably, a lot of people will. One guy wanted my friend to train his Rottie. His dog had attacked two people. One was a vet; the dog snapped at her during a routine exam and she thought he had bit her lower lip off. So she held the dogs mouth open and tried to fish for it so it could be reattached. It turned out it was still attached to her face. Barely.
The other was his two year old son, who was disfigured for life. When my bud heard this history he said to the guy, “Dude, WTF? Your dog tried to kill your own son. And you want to keep it? What is wrong with you? I’m not training your dog. Nobody can fix your dog. You need to put that dog down.”
Like a good riding mule, the odds of you getting a well trained guard dog are slim to none. Get a watch dog; a dog big enough with a bark deep enough to intimidate most people. And for those who aren’t intimidated that’s when you take over.
Scary bark but safe with kids, that is perfect description of my Great Pyrenees/Anatolian Shepards his bark can be heard for miles yet he is kind of a coward unless it is squirrels or coyotes. Little kids, even ones they hadn’t seen before, have stuck their fingers in their eyes or nose and they only bat their eyes and try to walk away, however if you threaten their family or a kid, and I mean any kid it is all teeth.
We had a family pet that was a natural guard dog. He was big and cute and furry, but a bit like a mobster. He completely understood the concept of family and friends. However, there were no words I dreaded more than a stranger, with a smiling child saying, “Is your dog friendly?” To which I would say, “Um, no, actually he is not” and put my hands tightly around his mouth because inevitably they would disregard what I just said, AND the fact that I was holding his mouth shut, to reach out to pet his stiffened body, with and a glaring sideways glance. Okaaay…can you please not have your child hug his face…[me thinking…Dear God what is wrong with you!] Oh…you know exactly what I’m talking about if you’ve every had a dog like that.
I used to just leave the door to the back yard open so he could get in and out No one in their right mind would have attempted to get past him and we never had any flies for more than a minute or two. Miss that dog.
Mr. Lopez made life choices, a choice to be a nonproductive weasel, a choice to steal on many occasions, and a choice to resist. Those choices have consequences, and society is better off minus Lopez.
“but I would hope I wouldn’t kill a person over a hatchet”
Is there any reason to give someone holding a hatchet the benefit of the doubt?
Mr. Dunn is going to regret what he did. I have always taught my trainees this- There is a difference between whether you CAN shoot someone and whether you SHOULD shoot someone. In this case, and based on the available video, I don’t see any justification for this man being shot. Unless there was other interaction in the store we cannot see (obviously there was) I am happy that I am not Mr. Dunn……or Mr. Lopez.
Well, to be fair, both parties actually involved seemed to believe the stupid hatchet was worth it; everyone else is just second-guessing.
On occasion there are cases where what I believe is right and what the law says is right are two different things. This is a good example. Don’t want to get shot? Don’t play stupid games then.
A guiding principle of our constitution is a sense of proportion. That said, third-party inferences aside, let the investigation proceed, the arguments presented, and conclusions drawn based on a consensus of near-frame evidence and constitutional principles.
A sense of proportion ins the Constitution… Is that in a penumbra or an emanation?
Seems to me back when the dusty old document was written that shoot to kill was the order of the day for looters and rioters.
And almost forgot- hanging for horse thieves.
We have constitutions of government that both authorize some government actions and deny the authority for others. Our federal and state constitutions are generally silent on the use of force for self-defense, except for some that espouse a right to arms for use in self-defense. Otherwise, our constitutions have nothing to do with “proportionality” in the social and sometimes violent interactions between citizens.
So many comments on these cases where a criminal is shot focus on whether the criminal deserved to be shot. That’s not the proper question. The question is always was the shooter justified in shooting? Tamir Rice did not deserve to be shot (for pulling out a toy gun) but the cops were justified in shooting him.
This case is the opposite. The thief deserves something bad to happen to him (death might be going too far), but the shooting is not justifiable with such a weak case for self-defense.
Now, if Dunn had stood blocking the door and the thief approached with a weapon raised, that’s a different story entirely c but that’s not what happened. The guy is already out the door trying to get away and is not a clear unambiguous threat to Dunn.
My guess is Dunn goes down for manslaughter
SCOTUS says the citizen cannot be forced to give up one right in order to exercise another. So Dunn had a right both to protect his property and himself. If he puts his life into jeopardy while protecting his property, that’s his decision to make, just as it was thief’s decision to steal what is essentially a weapon and to have it in hand while engaged physically with Dunn. Both made bad decisions, but ultimately Dunn had the right to make the decisions he made and the thief did not. Dunn did not surrender his right to assure his own survival when he decided to defend his property.
Well then it’s a simple matter of challenging Florida’s prohibition on deadly force to protect property. A good constitutional attorney will probably cost you $100,000 to start. And he won’t work on contingency. Good luck with that.
mac45 had already made it clear argument that torpedoes you comment.
Also, you miss the thrust of my argument. Even presuming you’re correct and FL law does not permit the use of lethal force to protect property, I did not argue that he should be allowed to do so. My argument is that just because he was protecting property does not mean that he gave up his right to defend his life at the same time. He can exercise both rights at the same time without conflict with a law that doesn’t allow the use of lethal force to protect property.
I find bbn it atrocious that the ‘victim’ has to justify deadly force over stolen property when clearly, the thief disregarded his own life. Second, a cop in this situation would be easily cleared and a private citizen, should have higher protections in using deadly force to protect property and/or life. While that may not be the law 8n this state/situation, it should be. “Don’t want the chance of being shot, don’t steal”.
A cop would not be cleared.
Cops have been cleared after shooting armed people who were not actually presenting a threat at the time of the shooting. Cops also carry “less than lethal” weapons that allow them to use a “spectrum of force” before using lethal force, but have been known to go direct to lethal force without making an attempt to first use less than lethal force even when the situation would have allowed it. Cops do often “get away” with what a citizen cannot. This is not to say that the cops don’t often justifiably get away with the use of lethal force, but rather to say that citizens are often prosecuted under circumstances in which cops would (rightfully) get a pass.
When? Please cite one case where the cop was cleared without at least claiming that the victim was actually presenting a threat at the time of the shooting.
Don’t bother presenting cases where the official finding was that the victim was actually presenting a threat at the time of the shooting, but you disagree with that finding. Your disagreement is irrelevant. To make your point you must cite a case where the official finding is that the victim was not actually presenting a threat at the time of the shooting, and yet the cop was cleared. I don’t think you can cite such a case.
I can present cases where cops have been no billed after shooting armed criminals who had already attacked others, but had fled the scene and no longer presented a threat to those they had attacked.
You as a private citizen would have discarded your status as a defender and become the aggressor had you pursuid the individual. As former cop and gun writer Massad Ayoob wrote, at this point it’s your job to call 911 and tend ot the wounded.
The cops on the other hand can shoot the individual if the individual merely flees from the arresting officers on the grounds that he is demonstrably a continuing threat. Even if he doesn’t make any threatening moves at the time of the shooting.
Want me to cite cases?
This is an excellent analysis. The news media try to make it seem as though any shooting involves a “stand your ground” law, which is actually rarely involved. For example, they tried to make the Zimmerman case about “stand your ground,” but that law was never raised because when someone is sitting on you and beating your brains out, you don’t have the option of retreating.
In my opinion, this current case involving theft of a hatchet fails the test for the use of deadly force. You may use deadly force only to protect yourself or another person from an imminent threat of death or serious bodily injury. In this case, the thief was trying to flee, and he was not actively threatening the shopkeeper with the hatchet.
Just because the perp isn’t pointing (or directly threatening use of) a deadly weapon that HE HAS IN HIS HAND, that doesn’t mean that he won’t at some time in the immediate future, like in the next second, change his mind. Shoot the sucker and let the lawyers sort it out afterward.
Why did he want a hatchet so badly that he was willing to not let go when a gun was pointed at him? Clearly it’s warm enough that he didn’t need to chop wood to keep his family warm. Was he going camping?
Who needs a hatchet that badly? It seems to me there might be more to the story as to why he grabbed a hatchet in the first place.
If Lopez was a smart, together, forwards-looking fellow, he wouldn’t be trying to steal a $16 hatchet.
A friend of mine who is a bail bondsman/recovery agent was going through all the bad things that happen when you try to skip bail – additional monetary charges and penalties that usually hit your family who cosigned your bail agreement for you.
“The kind of people who keep appointments and track their expenditures are not the kind of people I’m chasing.”
Concur. It the thief was a lumberjack or into woodworking he could have shelled out the sixteen bucks for the hatchet. And my intel sources tell me that Lakeland City, FL, has almost no opportunities in the timber industry. So what’s this guy going to do with that hatchet?
Or, tomahawk, as Lizzy “Digs Her Own Grave” Warren would put it.
Here’s what’s going through my mind if someone comes into my hardware store and tries to steal a hatchet:
https://www.cnn.com/2014/10/23/us/new-york-police-attacked/index.html
“Man attacks New York police officers with a hatchet”
“he was not actively threatening the shopkeeper with the hatchet.”
It looked to me like the hatchet was no longer in his pants and that Dunn had caught up with him, and he was turning towards Dunn. The hatchet is a deadly weapon, I see reasonable doubt.
Sadly, this looks bad (and is) for the good guy.
If it had been not been a hatchet in his hand, but instead something that could not, in an instant, be used as a lethal weapon, I would feel much differently. As in the other video of the old man, the split second fear caused by a criminal who has already refused to back down and then suddenly moves in ANY way, which could be construed – in a moment of panic – as life threatening would make me be unwilling to put myself in the mindset of the shooter and say that he did not fear for his life.
If it had not been a hatchet and he shot the shoplifter, I’d say put him away. But that’s not the case. And that’s my verdict without even knowing what else happened before they came onto the video footage.
Sorry. He could have dropped the hatchet. By not dropping it, I would say there is a chance that the shooter, in a moment of panic, feared for his life…regardless of the fact that watching the video in the comfort of my home shows that fear to be unfounded.
This idea that we make examples of the shooters who make wrong split second decisions in order to deter others from shooting is wrong. It should only be about the incident in question and never a deterrent influence the decisions of others.
“This idea that we make examples of the shooters who make wrong split second decisions in order to deter others from shooting is wrong.”
Bingo.
We feel a need to punish someone for the death of a fellow citizen. Often, we punish survivors. For instance, in bank robbery gone bad in which the robber is killed in the bank can result in the getaway driver being charged with his confederate’s death (even though someone else killed the robber – meaning that the actual killer is not always responsible for the death). In situations such as the one being considered in this article, the survivor is arguably (not that I agree with the argument, but for the sake of argument) in the wrong. Who is to blame? I say the dead guy. The shop owner could not have made the bad decision had not a criminal set in motion a series of events that led to his own demise. It might pain us to not blame the survivor in this case, and it might make some of us feel better to prosecute him, but the person who is responsible is dead and my consideration of this episode ends there.
Prosecuting the defender in situations like this punishes someone for making a bad decision, a decision made as the result of circumstances created by another person involved in a criminal act against the defender’s person and/or property. That’s justice?
well said
Absolutely. The person who is responsible for the shooting is the one who initiated the confrontation by committing an illegal act – NOT the one who reacted.
Hesitate when an object that can be a weapon is in someone’s hands and you and others may die:
https://www.masslive.com/news/index.ssf/2018/07/rock_thrown_at_fallen_weymouth.html
Once again, there is more to this, legally, than meets the eye.
This incident began, initially, as a petit retail theft of a $16 tool. Once the man had attempted to steal the tool, the merchant, under FSS 812.015(30(a), may use force to take the person stealing the property into custody, for the purpose of retrieving the property. Being a petit theft, deadly force would not generally be authorized. However, the item being stolen, can also be classed as a deadly weapon. And, because it was a deadly weapon, attempting to hold the thief at gunpoint would not be a bad idea. Be patient, this will all make sense in a moment.
The thief resists the merchant, and uses mild force [pushing the merchant away] to leave the store with the stolen property, the hatchet. Now we have a robbery, pursuant to FSS 812.13, as force is being used to take the property. Robbery is a forcible felony, in Florida. In addition to that, as a deadly weapon [the hatchet was being carried by the thief] when he used force to steal it, this is, technically, an armed robbery, a first degree forcible felony. But, we are not through yet. In Florida, the crime of robbery encompasses not only the taking of the property, by force, but fleeing after taking or attempting to take such property by force [FSS 812.13(3)]. Under 776.031(2) a person can use deadly force if he believes that it is necessary to prevent the imminent commission of a forcible felony.
So, it can be credibly argued that what we have here was the use of deadly force against a man who was in the act of committing a forcible felony [armed robbery]. Therefor, it can credibly be argued that the use of deadly force is statutorily justified. I have told you before that the laws governing the use of deadly force are often quite complicated and they are usually not wholly governed by a single statute.
Now, even if the shooting was justified, under statute, was it 1) necessary and 2) a good idea. The answer to these two questions is probably no. While it may have been legally justified, it does not appear to have been wholly necessary, as the thief was not in the process of attacking the merchant. As to it being a good idea, if it was not obviously necessary to protect himself or another, it was probably not a really good idea for the merchant to use deadly force against the thief. So, as Andrew pointed out, the merchant exposed himself, unnecessarily, to quite a bit of potential liability.
Very creative. I don’t know if that would fly though.
First it is not “creative”. It is the law. You might have noticed the statutory citations there.
Legally, what Lopez did was to commit a robbery by pushing Dunn and attempting to leave with the hatchet without making any attempt to pay for it. That makes his actions a forcible felony. And, in Florida, you can use deadly force to stop the imminent commission of a forcible felony. The fact that the item in Lopez’s possession is a deadly weapon is only frosting on the cake. As Andrew noted, this is NOT a self defense case, but a defense of property case. And, deadly force can be used lawfully to defend against a forcible felony.
Remember the Kenny Rogers song, The Gambler? “You have to know when to hold ’em. Know when to fold ’em. Know when to walk away. Know when to run.” Well, the same is true of the sue of deadly force. You have to know under what conditions you can use deadly force, before you strap on that hog’s leg and leave the house. And, you have to accurately determine what circumstances apply in your case as they are happening. Training and practice will go a long way to allowing you to do that.
OK. Let me clarify. By saying that your approach is creative UI am trying to politely say say that your approach is a batshit crazy idea out of Hillaryland.
If the gun had jammed, or Dunn not fired, and the thief got away and apprehended later, there is no way a judge would find him guilty of a forcible felony. What is more there is no way a judge is going to let Dunn argue to a jury that that was a forcible felon6y.
You are just stretching the facts to try and fit a narrative, stretching them to the point they break.
Oh and if you look at the victim, he doesn’t push Dunn he pulls his aram away.
Wrong again. I have participated in several cases, in Florida, where a shoplifter was charged and convicted of strong-arm robbery for resisting a merchant with violence, including simple shoving. I have also seen a number of cases pled down to simply resisting a merchant. When a defense attorney sees that his client was charged with robbery, for shovign a merchant who is trying to detain him, in most cases, that defendant pleads guilty to the theft AND resisting a merchant. Why? Because, by using force to attempt to steal an item, the defendant HAS committed a robbery.
Also, if the judge refused to allow the Dunn to argue that Lopez committed a robbery by using force to attempt to steal the hatchet, this would be unquestionably reversible error. It is a bona fide defense and has to be allowed, at trial. Of course, a jury can choose to ignore the law and the facts and dismiss the defense, juries are notoriously fickle. In fact, you, yourself, said that you would do the same thing.
Now, suppose you take a few moments and actually produce a clear, cojent argument as to why I am mistaken, rather that say that no judge would buy this logical defense clearly supported by state statute.
A list of forcible felonies can be found here:
776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
Bravo!
But it was probably a less good idea to steal a weapon and then get into a tussle with an armed store owner.
I agree with Andrew that it was not wise of Dunn to risk so much physical and legal peril over an inexpensive item but I disagree 100% about the hatchet in the hand of the determined shoplifter not presenting an imminent danger of death or grave bodily injury to Mr Dunn.
In the moments before the shooting Lopez’ grip on the hatchet is hidden from Dunn. If he has managed to switch his grip to the handle then his arm being outstretched away from Dunn means Dunn is 1/20th of a second away from a full power hatchet blow to the face if Lopez comes back towards him.
Police are taught to regard a knife at 20 feet as an imminent deadly threat. Lopez’ hatchet is an OBVIOUS deadly threat, and only at the last instant would Dunn have been able to see that Lopez was holding (or still holding) the hatchet by the head, if he happened to be looking in just the right place.
If Lopez was initially holding the hatchet by the handle there is no question that it would be reasonable for Dunn to perceive an imminent deadly threat. Does Andrew know this is not the case? How, when it isn’t on the video? But in any case anyone who is handy with weapons could easily have shifted his grip when Dunn couldn’t see.
I was hoping to see Andrew address the interesting case where the decision to use allowable non-deadly force to protect property creates a life-threatening situation where deadly force seems justified. Does the defender’s role in creating the deadly situation in any way compromise his innocent status, innocence being one of the five requirements for justifiable homicide?
Instead Andrew’s tendentious reading of the threat situation jumps past this more interesting issue. Indeed, it almost seems that Andrew himself is reading lack of innocence into the Dunn’s decision to grapple with Lopez. Lopez could quit. It is not Dunn’s FAULT that this guy pulls away from him, creating a force that could recoil back on Dunn in an instant with a hatchet blow to the head or neck.
It is hard to imagine a more dangerous situation. Anyone who has even play-tussled knows that pulling someone towards you is something that OFTEN gets used against you.
Maybe Andrew can at least accept my premise and answer the question. All Dunn has to do to escape the deadly threat is let go, yet he is allowed by law to hold on. If we accept that holding on does indeed turn the hatchet in Lopez’ hand into an imminent deadly threat, does holding on void Dunn’s claim to innocence? How? What wrong has he done?
Does it void any other requirement for justifiable homicide? Does it perhaps void the avoidance criterion? That sounds plausible but maybe the explicit legality of using less than deadly force to stop property crime means that this particular act of avoidance (letting go) is not required in such cases.
At least as a hypothetical I’d like to hear Andrew’s answer to that question, especially in that I think Andrew has maybe been a little unfair to Dunn here.
If holding on DOES void the avoidance requirement that raises questions of whether the law is well written. We all know there is a fight or flight reaction wired deep into our animal natures. If we are going to let people fight for property then it seems to me that when thieves in such fights come to pose a deadly threat we can’t suddenly switch and say “now you have to stop fighting, you have to let him go.”
Human nature says the opposite: now you fight with all available power. A decent law does not switch that mid-fight. For what? Out of regard for the criminal who is posing the deadly threat? Wrong.
Anyone remotely handy in a street fight can turn most anything into a weapon. If that person has an actual weapon in hand, with very few exceptions, a hatchet not being one of them, he wouldn’t need to change his grip on the weapon to employ it.
A competent defense attorney will get a no-bill. Normal folks are fed up with petty theft. This video is not conclusive. We don’t know what was said. That thief could’ve threatened violence with the hatchet. I’m disappointed Mr. Branca is so quick, again, to jump in with opinion, when his background should council that you just can’t go by video alone, and there most certainly ARE other circumstances that probably won’t come out until the GJ. The cops, the DA, and the shooter all have reasons to withhold exculpatory evidence from the press at this early stage. Geeze.
For all we know, it’s going to come out that the dead guy has a rap sheet, was given early release or something, had previously threatened this store owner, etc. Who knows.
“For all we know …” Heh.
First, you criticize me for not waiting until every fact is known–in which case the story would be months old and not of topical interest–and then you engage in utter speculation and imagine facts into being.
Nice work if you can get it, I guess. 🙂
–Andrew
Lopez does have a rap sheet.
Andrews point here is that it is that the shooting is legally indefensible because the hatchet was behind the door. We all know a hatchet can’t go through a glass door. Also an armed thief could not have repositioned himself within a fraction of a second to an attack position. I guess Tueller was mistaken.
The guy felt entitled to someone else’s property, even when directly confronted to stop.
Scum of the earth IMO. Good riddance.
No, that’s not a legal defense, but more of a “play stupid games, win stupid prizes” observation.
against edged weapons, distance is your friend–against firearms, usually the opposite–what if the owner had missed? would lopez have run away or lunge and attack?–they’re inside of two meters to one another(probably one meter)close enough for even a half-assed swing with an edged weapon
i’m with the owner though would probably have dispatched lopez IN THE STORE
This may not be quite as bad as it looks at first glance.
• Criminal is apprehended, fair and square, by the store owner during the commission of his crime (shoplifting and the subsequent attempt to escape).
• Criminal demonstrates a willingness to use force in the furtherence of his crime (by pulling away from his captor, thus making good his escape).
• The extent of the force the criminal is willing to use in order to escape is conjectural. (How far will he go?)
• Criminal is known, without a doubt, to be armed with a deadly weapon.
• Store owner is under no obligation to assume that the criminal will act with restraint, or give him the benefit of the doubt in any way. (He is, after all, a criminal, and not some random upstanding citizen.)
• Store owner can reasonably be considered to be in immediate deadly peril from the criminal (a criminal who is armed and showing inclinations toward the illegal use of force).
Doesn’t look terribly indefensible to me.
Irregardless of the defensiblity of the shooting, I literally cannot comprehend the thought process of this criminal.
I mean you’re stealing from the store. OK, that makes sense.
Now the shop keeper has caught you and is pointing a gun at you, and presumably telling you to drop the weapon and put your hands up.
And your response is to shove past him and try to leave with the stolen weapon? Did he seriously think the store owner was just going to let him walk away?
I would like to know if he shot the thief in the leg, would that be legally defensible, without question.
More to the point, a shot to the leg can kill, remember the shooting of Harvey?
What if he had been shot in the foot?
No,I think I missed the Harvey case. Regardless, a shot in the leg won’t hit a vital organ and if you’re reasonably lucky, you’ll miss any arteries. That sounds like a good trade off to me – although it might not stop a hatchet-wielding man whose right arm was still functional.
Andrew, what say you?
The ONLY time a civilian can pull the trigger is when deadly force is justified. If you admit to a deliberate less lethal shooting that stops the issue you are opening yourself to a legitimate claim that deadly force may not have been necessary, therefor deadly force was not justified. OOPS.
That said, I watched the scene, and cannot ID if the hatchet was bare, or packaged. If it was packaged, it likely was not deployable as a deadly weapon. Cardboard pegboard packaging with edge guard inside, or heavy plastic clamshell w/ an edge guard would both make that nowhere as lethal as a bare hatchet. So if it was bare edged as a weapon or if it was not does make a difference as to if the thief had a deadly weapon instead of dangerous weapon at hand.
If it was not a deadly weapon at hand, IMHO the shooting cannot be justified. If it was bare, that does leave a maybe yes (maybe yes also means maybe no).
At 32-33 seconds in the video the hatchet is visible, lying on the ground near Mr Lopez’s right hand. It looks like a hatchet; no packaging.
I have never seen an axe or hatchet wearing any sort of retail packaging. They’re like hammers or garden tools; a tag with the UPC code and price is usually wrapped around the handle, and that’s it.
“I have never seen an axe or hatchet wearing any sort of retail packaging. They’re like hammers or garden tools; a tag with the UPC code and price is usually wrapped around the handle, and that’s it.”
Sure, maybe not that much packaging, but then the axes and hatchets that I have seen over the last several months in a retail situation tended to have the ends of their cutting blades covered with hard black plastic. Maybe only a quarter or half an inch, but it was fairly ubiquitous. In particular, I remember looking at a selection of them at an Ace Hardware in maybe August. The black plastic edge protectors appeared fairly easy to remove, but something that would not be easy to do inadvertently (I think typically breaking a thin plastic piece holding the edge protector in place).
And, when you whack something with the hatchet, I expect the blade would fly right through that little strip of plastic. It certainly wouldn’t do any useful cushioning. The edge protector, when present, is intended to prevent injuries to store employees taking hatchets out of crates, and discourage casual shoppers from “testing the edge” with a thumb, not to protect some malcontent from crushing a skull.
https://legalinsurrection.com/tag/road-rage-murder-trial/
Harvey was killed when a ricochet hit his leg, opened his femoral artery in a fight stemming from a road rage incident.
Hitting the femoral artery in a leg is likely to be fatal a lot faster than hitting a number of organs in the torso. This is one reason that combat type tourniquets are not uncommon at shooting ranges – if someone is shot there, their only hope of survival is often almost immediate application of a tourniquet. No tourniquet typically means DOA in minutes. Possibly hitting the femoral artery is also why a lot of people don’t like IWB appendix carry for concealed carry of their firearms.
You are typically taught to shoot center mass first, because your chances at stopping someone threatening you with deadly force are greatest that way, not that other shot placements cannot be fatal.
No. ANY shot with a gun is considered lethal force.
And in fact there have been several cases where somebody intentionally fired a ‘warning shot’ and was charged with attempted murder.
that is the kind of thing that makes Shakespeare’s comment funny to so many.
Looking at the video, I would say that the crook does not do anything which could be interpreted as threatening, at least until after the shot then there is some hand movement open interpretation.
TBH if I were on a jury, and the other 11 voted to convict, I would vote to convict. If there was one holdout. “Oh well, it looks like the gun went off accidentally”.
So, when did “feelings” Trump facts and the law? I went to a great deal of trouble to point out why this was a legal use of force. I explained it simply and clearly. I even provided references to the statutes. And, you are going to make a decision on the legality of a man’s actions based solely on your personal feelings. This is the problem with out jury system. People refuse to look at the FACTS and apply logical analysis and simply go with their gut. Yeh, that’s the ticket.
Isn’t the thief resisting arrest with a lethal weapon in hand?
Looking closely at the video you can see Lopez take a swipe at Dunn’s pistol and briefly knock the barrel to the side (to Dunn’s right).
It is not clear that Lopez’ INTENT was to take a swipe at Dunn’s gun. He just as well could have been swinging his left arm around Dunn’s left arm (the one holding his shirt) in an attempt to break the grip on the shirt.
But anyone holding a struggling criminal at gunpoint is going to be triggered by the criminal even momentarily reaching out and making contact with his gun. I think that contact will prove completely exculpatory.
Watching the video in real time you can see three barrel deflections: when Lopez contacts the barrel with his outreached hand, then two recoil movements as Dunn shoots twice. All three deflections occur within a half a second.
Danger can’t get more imminent than someone reaching for your gun, which is what Dunn would have perceived no matter Lopez’ intent, and he only shot in that moment.
There’s also “sympathetic reaction” to consider. If you’re grappling with someone and grabbing or attempting to grab them, both hands have a tendency to contract. If one of those hands is holding a gun and a finger is inside the trigger guard and on the bang switch – BANG! Happens to cops all the time. (It doesn’t happen to civilians as much, because cops are often, by the necessities of their work, grappling with people while holding a firearm.)
Just before Lopez is shot, he turns his head and part of his upper body towards Dunn. Lopez’s right hand is apparently holding the hatchet (in what orientation, I can’t tell) and is just at the edge of the mostly-opened left door. Dunn neck and chest are, I would estimate, roughly 3′ from the hatchet in Lopez’s right hand. I would guess, with that situation and orientation, it might have taken Lopez a quarter of a second or so to strike Dunn a deadly blow with the hatchet, depending on its orientation in his right hand. Dunn may or may not have known its orientation in his hand. But even if it was held “backwards”, and Dunn knew this, a person skilled with knives or similar weaponry probably could have arranged his grip within one second or less to effect a strike. I assume Dunn did not know if Lopez was someone thusly skilled, so prudence would dictate that he should assume that Lopez was skilled in such fighting. Under such conditions, I would say that Dunn could justifiably have feared imminent great bodily harm or even death, once Lopez turned slightly to look towards him.
My personal impression is that Lopez was drunk or on drugs, or mentally ill (or severely suicidal, which I consider to be different than being “mentally ill”, though the former is often a symptom of the latter). But in the heat of the moment, Dunn probably wouldn’t have been able to make that assessment. And even if he had, that wouldn’t really have, nor should it have, alleviated his fear of imminent harm or death.
So, if I was on the jury, I would vote that Dunn is innocent.
The thing that stood out the most to me is Lopez’s complete disregard of the threat of deadly force. He ignored the clear display of force and attempted to push his way out of the store against a man holding a gun.
IMO, Dunn should walk due to that factor alone. Dunn did not draw and shoot simply because a hatchet was being stolen. Lopez was engaging in physical conflict while holding a melee weapon against a man that already had a drawn gun.
This seems to be a case where having the means made the decision too easy.
This is why everyone should establish some guide lines in their own mind what level you will bring to a particular situation.
You don’t have to dwell on them or make them over complicated.
Just the basics of the situation and whether you will fire or not fire depending on the circumstances.
This way in the heat of the moment you will be more likely to make a decision you can live with and maybe have it be the correct one.
The military runs drills all the time for a reason. This is to familiarize the troops with the steps required and the decisions to be made while the situation is ongoing. That allows the troops to be prepared and not have to stop and think what to do next or react and do the wrong thing that gets them or others killed.
It behooves everyone to take a little time thinking about the possible situations that could arise and what your reaction should be.
Like in driving you should always have and out. Defensive driving courses teach this simple but effective process to help you if you are involved in an accident. So should you anticipate what life may through at you.
Here is what is wrong with this, we are all assuming the guy stole a hatchet because he needed a hatchet. Hmmm… not many uses for hatchets these days that are worth stealing one at the point of a gun.
More likely there is more to this story, like he grabbed the hatchet in order to use it to threaten the shooter.
This was an attempted armed robbery, not shoplifting.
I am confused why this is characterized as shoplifting. There was a struggle and the thief used force to try to escape. That seems more like strong arm robbery than shoplifting. Not saying its justified, but shoplifting seems to trivialize the crime.
Please read my first post above. I go into that. In fact, it was more than just a strong-arm robbery, it was an armed robbery because Lopez had a deadly weapon, the hatchet, in his possession at the time.
He did NOT kill him over $16.
That’s BS.
He killed him because his life was threatened.
I’d agree, watching the video again there was very clearly some kind of physical back and forth just below the camera, you can see Dunn try to grab him and quickly back off. It LOOKS like the dead thug may have taken a swing at him or shoved him back, then when he’s going out the door he suddenly turns back on Dunn. I’d be pretty skeptical that a prosecutor could get a conviction on this without some big evidence that we don’t have access to (entirely possible).
And anybody that says things like ‘killed over $16’, clearly implying that they think it wasn’t worth it, should be REQUIRED to answer where they think the $$$ cutoff is for when it’s suddenly worth it.
The actual value is irrelevant to whether the shooting was justified, it doesn’t matter whether it was a $16 hatchet or a $500,000 diamond.
well, do not possess all the legal training of many here but nevertheless feel that the owner acted properly–the whole excessive force argument rests on the opinion that ” the perpetrator was attempting to flee.”–would suggest that the owner was the one in the best position to judge the same–the owner, regardless of how it came about, was certainly justified in using whatever force necessary to protect himself–lopez wasn’t making off with a hose or a box of amdro after all
have always thought the right of self-defense was absolute and extended to the individual in peril, regardless of the ancillary circumstances
Sorry, but people choose the directions they want to go in life.
Every time they get away with something just gives them a reason to escalate to the next level. We see on this site alone the end results of those that go to the next level, sorry but he made a choice and paid for it, no tears here, except for the small shopkeeper.
IMO (and this may piss some off) this is a case where the law (often written by then interpreted by AND prosecuted by lawyers (no offense to any lawyers here as I have always seen good sense from them)) trumps common sense.
I’m not advocating blindly shooting and killing people, but I do think any thief should meet his/her maker with no repercussions on the actual victim of the robbery.
excessive shoplifting drives insurance rates up for everyone thereby causing higher prices yet we (as a society) are to fking scared to put an end to it.
on video stealing something.
on video getting just rewards.
yeah maybe I am a harda$$, oh well.
change the fking laws.
The perspective of the article is backward.
Do we live in a country with “guilty until proven innocent” or “innocent until proven guilty”?
Uh. No. We know he’s guilty already, guilty of shooting someone.
The question is whether he was justified. he has to at least provide a prima facie case that he was jsutified.
After reading some comments, I watched the second video posted above. Watch it again at :25 There is more to this.
First, there is NO packaging on the hatchet, and since their are few uses today for a hatchet that would inspire a thug to steal one for chopping, I’m going to assume he was arming himself with a deadly weapon rather than stealing. Second, the body movement of the store owner in front of the door is odd, at one point, :18-:19 he pulls back – did the thief threaten him at that point? At :22 the thief actually hits the gun with his left arm, then there is a split second between photos, the next being Lopez looking down directly at the gun, either to note it’s still in Dunn’s hand or he hears a click, or whatever… but interesting footage.
and but none of that the will change any minds without more info.
However, look at the tape again from :22 It’s actually very interesting if you keep your eyes on the hatchet
At:22 you see Dunn lose his grip and the frames show Lopez falling back to the right in two frames and then he falls to the left. He NEVER lets go of the hatchet. Even as he falls, it remains in his right hand and it almost appears as if he tries to hold onto it with both hands as he falls, though maybe to protect himself from the blade. Then once Lopez is on the ground with arms spread out the door begins to close between him and Dunn. Dunn puts his left hand on the door and then leans forward as if he sees something and then reopens the door in a defensive posture.
At:23 Lopez, who is mortally wounded, tries to pull himself back up again and manages to turn his head towards the direction of the hatchet, which you can see briefly right over his right shoulder.
This happens at the same time Dunn is resuming his defensive posture. Then Lopez is down, the hatchet is on the ground, but Lopez is still trying to move and as the frames go from 25-26 you see the hatchet handle move, pulled in towards Lopez.
Okay, I find that interesting because it could be that Lopez, even though mortally wounded, is trying to reach the hatchet.
So I realize that it is possible that maybe Lopez was just trying to get away that the hatchet movement is just body movement pushing it etc. …. but from Lopez’s movements, it does seem possible to me that that Lopez, after falling looks towards the direction of the hatchet and pulls himself up towards it, causing Dunn to resume his defensive posture.
Maybe he’s just on drugs ….but why won’t he let go of that stupid hatchet?
I’d want to know if there was any relationship between Dunn and Lopez. Is Dunn dealing drugs or weapons? Lopez seems to want that hatchet just a little more than makes sense in this situation.
eh, just walked away and watched it again. If I was on the jury and I didn’t get really compelling evidence that LOPEZ feared for his life from Dunn, for example: they prove Dunn was a ruthless drug dealing thug himself and they could also prove Lopez had the hatchet to DEFEND himself [good luck with that], I would give the presumption of a “defensive panic move” to Dunn, because Lopez never let go of the deadly weapon.
I can see where the shop owner could beat the charge… But at what cost? Even if all goes well he’s still playing a lawyer thousands. He’s no doubt already paid one a hefty retainer.
Not only that, but lets assume he gets off. What are the chances that there will be a “protest” in front of his store where it burns to the ground?
Video of Drejka police interview.
https://www.youtube.com/watch?v=0WxLM0bBIAI
You can turn things around on Dunn as well and ask how could he have felt himself in danger if he closed into immediate range with someone wielding a deal contact weapon.
Which is what they will do. But they better hope that I’m not on the jury, because what I see is that Dunn grabs him for whatever reason… to keep him there … to get the hatchet… maybe because Lopez has something else under his shirt (hard to tell if it is lighting or not) whatever, it doesn’t really matter…
What I see is that Dunn appears to be initially threatened by Lopez, he grabs Lopez’s shirt as he goes out the door, Lopez swats his gun and never lets go of the deadly hatchet.
And it all happens in 4-5 seconds.
Sorry, I’m not going to find Dunn guilty. Clearly, in comfortable hindsight, he should have let him go, it’s sad! But I can honestly say that I believe it is possible that in those seconds, of panic, Dunn could have feared being hit by the hatchet OR having his gun taken away.
If Lopez had dropped the hatchet or if Lopez had been stealing a ipad, I’d happily find him guilty.
To me, it’s like you are driving on ice and you see a ball kicked into the street in front of you and what appears to be a child running between two cars, and you want to swerve but see black ice in the oncoming lane and a cliff just beyond it and there’s a truck coming at you. It is not fair to look at the event afterwards and say, oh…there was no child running after the ball, it was a shadow; or that wasn’t really a cliff, just a slope; or it wasn’t really black ice, just dark pavement; and the truck was able to stop well before where you would have swerved. Your reaction is based on what you think you should do RIGHT THEN at that second, not afterward. People panic. The benefit of the doubt should go to Dunn because it was Lopez’s criminal action that put Dunn in the situation in the first place.
Deal should read deadly.
“Pick your battles” is one of my favorite pearls of wisdom. But this seems more like a run-of-the-mill shoplifting. And is the result really “binary.” Can’t an imperfect self defense mitigate it down to manslaughter?
One more time. This was not a run-of-the mill shoplifting. Lopez was stealing a deadly weapon. He used force against the merchant to do so. This makes Lopez’s actions a ROBBERY, not a petit theft. A robbery is a forcible felony and, in Florida, deadly force may be used, lawfully, to stop the commission of a forcible felony.
Do, not wander off into the tall grass on this. KISS. Trying to argue the lawful use of deadly force in immediate self defense is far weaker than arguing that it was authorized, by statute, because Lopez was committing a forcible felony. That is the legal aspect of it. Whether it was a good idea or morally proper is another debate for another time.
An easy one for any Texas jury. The first question when they get in the jury room is: “Is the community better served now that the deceased has departed?”
just as an aside, if you removed the firearm from this scenario and the owner had dispatched lopez using his fists only (not boxing but a couple of lethal thrusts), would this change the legal picture in any way?
Tough call. If I was on a jury I wouldn’t convict him based on what I saw.