UPDATE: FL Shooter of Shoplifter Charged with Murder
“A Lakeland city commissioner surrendered Friday to face a second-degree murder charge”
Michael Dunn, a City Commissioner of Lakeland FL who on October 3 shot and killed a shoplifter in his store, has been indicted and charged with second-degree murder. He was arrested at his attorney’s office yesterday evening and is being held without bail, reports the Tampa Bay Times.
As I noted in summary in my initial post regarding this matter, “the facts of this case as we know them so far . . . do not appear to legally justify Dunn’s actions.”
As reported in the Tampa Bay Times:
A Lakeland city commissioner surrendered Friday to face a second-degree murder charge in the Oct. 3 fatal shooting of a suspected shoplifter at a military surplus store.
Michael Dunn, who has served on the City Commission since January, arrived at the Polk County Jail in Bartow shortly after 6 p.m., accompanied by detectives in an unmarked car.
At a news conference a half-hour later, Polk State Attorney Brian Haas said he doesn’t believe the killing of 50-year-old Christobal Lopez was premeditated. But he also doesn’t see grounds for a self-defense claim. So he took the matter to a grand jury, which indicted Dunn.
“Let me be clear: It is the policy of my office to comply with and abide by the stand your ground law,” Haas said. “However, I have determined that this case and the actions of Mr. Dunn fall outside the protection of the stand your ground law.”
The Tampa Bay Times reports that the Lakeland Police Department referred a criminal complaint affidavit to the State Attorney’s Office nine days after the shooting. From there, the matter was presented to a grand jury, an indictment was returned on second-degree murder, and Dunn was arrested on that murder charge seven days after the criminal referral.
Dunn now faces the potential of spending the rest of his life in prison should he be convicted of the second-degree murder charge—an outcome that is not at all unlikely—and of course the family of the dead shoplifter have already retained an attorney to file a civil suit against Dunn.
Over a $16 hatchet.
As I noted in my previous post on this matter:
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 [AFB-as they now have been], 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.
I urge my clients and students to contemplate before using force against another person: will it have been worth it?
Remember, the moment you engage forcibly with another person, you’ve immediately incurred two risks that you were not incurring a moment before: A greater than zero risk of dying in that fight and a greater than zero risk of spending much of the rest of your life in prison.
I urge you to make sure the stakes are worth the risks.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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Comments
Lesson learned: If someone pulls a gun on you, just ignore it.
Accidentally gave you a thumbs up on that. That isn’t the lesson that should be learned here.
The lesson to me is: If you’re going to carry a gun you’ve got to be able to know when not to use it. The threat here didn’t rise to the level needed to justify deadly force.
Sucks too because a good law abiding man will probably be going to prison because of a criminal stealing from him.
The lesson that the shooter seems to be displaying is that it “Lacks wisdom to be packing a gun when you have a big chip on your shoulder!” A grudge or negative attitude can really skew a persons perspective, in this case leaving a petty thief dead.
Enabling criminals is a ‘positive attitude.’ In San Francisco.
The petty thief was running out of the store. He was running away from Dunn. Where is the self-defense? Dunn’s life was not threatened. Not even close.
It was caught on surveillance camera and no one flees the country over a $16 petty theft so it is a virtual certainty the thief would be caught. This was at best a misdemeanor.
If you expect to be using a gun for self-defense, know the law. There are lots of excellent self-defense gun courses. Invest a couple of dollars and take one or two.
Dunn’s life was not threatened. Not even close.
I’d consider any weapon literally at arm’s length to be pretty close.
It’s easy to make a lot of assumptions well after the fact. The store owner didn’t have the luxury of several days of perusing various videos to make his decision. My opinion is unchanged – the perp had a deadly weapon and had the potential opportunity to use it. In Texas, based on what I’ve seen in other real life incidents, this wouldn’t even be a subject of debate.
Lopez went for Dunn’s gun. That is the threat that Dunn seems to have reacted to. Lopez deflects the muzzle of Dunn’s pistol and Dunn immediately fires two shots. The sequence all occurs within a half a second. Lopez swipes at the gun and as the shots are fired is turning towards Dunn with a hatchet in his hand.
I think this will get Dunn off, which doesn’t mean I disagree with Andrew’s use of this case as an example of an armed citizen gratuitously putting himself in grave legal peril, however much he may have been doing the rest of us a valuable crime-deterrent service.
I’ve about had my fill of the legalese (the language of lies) in Branca’s post and the comments like your’s. It is possible Branca is one of the “well-meaning” of his ilk – and that is a DAMNING indictment of himself and people like him.
I don’t care about Branca’s “sincerity” or presumed “integrity” when he is diverting attention (deliberate or not) to parsing the in-moment decisions of a shop-owner protecting his livelihood from a thief, sitting in detached judgment from God-knows how many miles away.
Let’s be clear:
Killing criminals is neither a crime, nor barbarism. Anything that tries to distract from that is corrupt sophistry.
And protecting criminals IS barbarism. Warping the terms of “justice” into “proportionality” is disgusting.
This is exactly why black and latino “flash mobs” are spreading in Florida and elsewhere; with criminals robbing stores in broad daylight, unafraid, unimpeded, unfought, knowing the owners won’t dare to shoot them because of capricious and arrogant lawyers and judges presiding from on high (at a safe, well-paid, and government-sanction/subsidized distance).
This is why foreign criminals (I refuse to call them even “illegal aliens” anymore) have invaded the country with outrageous mendacity as Border Patrol and even combat-community Military veterans are fearful of doing anything about it.
This is why “children” (sometimes not yet teenagers) of third-world persuasions commit murder and rape today while the lawyers and judges keep everything under seal (knowing the media won’t ask questions), and the public blind, uninformed.
This is why Americans everywhere, who know something is terribly wrong, are afraid to even speak up – let alone act – because they worried about what some arrogant, ignorant, over-educated, overpaid PRICKS who do NOT earn an honest and productive living and have unwarranted “Power” in courtrooms and other ivory towers – as opposed to farms, factories and plants, hospitals, construction sites, etc.
On and on it goes with the abusive and enforced ROT.
Branca, your’s is the profession of the reprobate. I have no doubt your “legal advice” is “sound”. But I’ve long since stopped caring about the rationale of “sound legal advice” as it has become a tool for barbarism in the hands of savages, and a tool for theft in the hands of lawyers, environmentalists, politicians, foreign interests, etc.
Justice has been turned on its head in so much of America, the American way of life has lost its ability to defend itself – to deter criminals and enemies, foreign and domestic – and decayed into something unrecognizable – something third-world – which would HORRIFY an earlier, less “progressive” and more enlightened generation.
A long time ago, there was a attack of a white couple in Indiana by three blacks. They murdered the man and raped his woman. And when the authorities played political games and threatened to release them (yes, there was an NAACP and political correctness in the 1930s too) the town marched on the prison, overthrew the ruling class, and tried the three blacks right there. One was found not guilty, and the other two were hanged.
You may know this story.
No?
Of course not.
Because Harper Lee couldn’t bear to write about the truth. SO he made up a lie called “To Kill a Mockingbird” which has corrupted the minds of gullible children and unknowing parents. But no teacher will delve into the very real history that “inspired” to “Kill the Mockingbird”, of racial politics which PROTECTED privileged black criminals, of black-on-white rape which has grown outrageously rampant from a time in the 30s when it was – if not uncommon (blacks have always raped white women by ridiculous multiples compared to vice-versa) – then at least “less” common.
Our enlightened forebears understood the meaning of “due process”, “speedy trial” and “justice”. The Founders would have smiled as the Indiana “mob” descended on the corrupt tyrants who thought they could overrule those they “ruled” after sanctioning an atrocity.
Americans were not so cowed or oppressed then, to the chagrin of lawyers and criminals.
The Constitution never said what lawyers claim it says – just read it; there’s nothing about “letting 100 guilty free to avoid one innocent”, “reading Miranda rights”, “Precedent”, etc.
It’s all lies.
One lawyer told me openly that the Constitution – by its very nature of enumerated GOVERNMENT rights and unenumerated People’s rights – outlawed almost ALL of a lawyer’s and judges authority which they claim today to have….and that EVERYBODY in his profession simply usurped their authority by ignoring the Constitution, rather than amending it.
So don’t let lawyers and their pretentious profession ever tell you otherwise.
Both the People in Indiana and this shop owner did the right thing – and the Founders would have smiled.
You mad, bro? 🙂
–Andrew
http://www.lawofselfdefense.com/patreon
Andrew, if you see this I have a question. I agree with just about every thing you said including the excellent advice.
What avenues of defense do you see? The angle for the prosecution is pretty clear, and strong.
The way I see it, hatchet thieves are kind of unpredictable. We can all agree I think, that if Lopez had been holding the hatchet in a threatening manner, Dunn would have been justified.
Considering they are at very close range, what if Lopez decided to attack with no warning? What if Lopez changed his mind and decided to not try to flee and instead attack, at the moment before the shot. Would Dunn have been able to defend himself in time? In the event of an unexpected attack, is Dunn required to wait until the attacker strikes before he can shoot?
I guess what I’m saying is that Dunn’s was in a situation that involved *some* level of danger. There was *some* level of threat to his life or limb. What level of threat is required before he can defend himself legally?
Andrew, the shoplifter was very close (less than Tueller Drill distance), holding a sharp implement in one hand and made an aggressive move with the other.
Not being on the spot myself, it is difficult to judge,but I can see how someone would feel reasonable fear of injury.
Nah. If someone has a hatchet, you don’t have to ignore it.
You just have to wait until they swing it at your head, then you can shoot.
That wasn’t the lesson, and your response trivializes the importance of Branca’s advice.
Based only on the video, there is no way that Dunn should have reasonably believed to be at imminent risk of death or grave bodily injury as the shoplifter was attempting to flee. There was, therefore, no jeopardy to Dunn. Ability and opportunity, yes. Jeopardy, NO.
I agree mostly.
Consider that Lopez was in very close proximity. If he had changed his mind and decided to attack instead of flee, would Dunn have been able to shoot in time to stop the attack?
It would be very clear if Lopez had exited the store, and Dunn had shot him in the back as he was fleeing, that the shooting is unjustified.
But that was not the case. Lopez was within hatchet striking distance of Dunn and was shot in the chest. Is Dunn required to wait and see if Lopez changes his mind before he can defend himself?
In that very unique situation, I think Dunn would have gotten a hatchet to the face before he got a shot off or immediately after.
Te legal analysis is, of course, correct.
However, stealing a hatchet is different than stealing a loaf of bread. A hatchet could, and probably would, be used to harm someone, maybe even the shop owner.
I am not saying that he should not be charged with a serious crime, but those facts should be taken into account for sentencing. Life in prison for something like this is well beyond what is right and just.
Let’s look at it this way:
Suppose the store owner never had a pistol, but still saw the thief. What would he have done differently? Tried to stop him and the thief would have gotten away with a ripped T-shirt, his face remembered in that store for a couple of years.
The theif would have went and eaten a plate of black beans that night, and the owner would be left cursing that night, thinking of how he got screwed over by another ‘beaner’. BUT, both men would have went home to eat and relax after a hard day.
NOW, neither man will go home to relax. The thief for eternity, and if the shooter get’s out of prison, it will cost him a LOT of money for a $16 hatchet in legal fees…. If he’s locked up though, his life is totally screwed. Who can he blame? Himself for deciding to carry a gun and then using it like he did. Who will he blame? The Cuban or Mexican, whatever. It’s always the other guys fault, dontcha know,
So what you’re saying is…
If the thief was white the shop owner woulda just said “It’s cool, bro” and gone back to watching old reruns of “All in the Family.”
Alternately, he could have reacted the exact same way and most likely would have.
In short: QUIT INJECTING RACE INTO A TRAGEDY.
Take that crap to DU or Daily Kos or r/politics. They’ll eat that crap up!
Thank you.
FEEL FREE to piss off, both you and your cockroach attitude… I’m not saying any such thing.
WHAT I AM SAYING IS BECAUSE OF BOTH MEN’S STUPIDITY TWO LIVES ARE DESTROYED – BOTH MEN ACTED LIKE IDIOTS.
AS FOR YOUR TROLLING, JUST GO PISS OFF. NEXT TIME LEAVE A NAME/NUMBER AND ADDRESS…. DAMNED DEMOCRAT TROLLS.
You left the cap lock on.
Your point on both men’s lives being destroyed is accurate.
You go off the rails with presumed racist views
“The theif would have went and eaten a plate of black beans that night, and the owner would be left cursing that night, thinking of how he got screwed over by another ‘beaner’.”
Stereotyping both men, because all men named Lopez eat black beans and of course the white guy is mad at a ‘beaner’
“Who will he blame? The Cuban or Mexican, whatever”
You saying you don’t see it? You’re painting this guy as Archie Bunker without proof. It’s like the lady last week who was accused of racism because she wanted proof a new guy lived in the building. Everyone accused her of being a racist, never mind her former husband was black. You are assigning attitudes to people without proof. So yes, take that stuff to a site that appreciates it.
Racist? Nobody was being racist in my description. Let’s change the tags, eh? The shoplifter was a Martian with a mustache who got caught stealing a cheap little hatchet.
The killer was an upstanding red-neck who takes pot-shots at people who steal. Yup, he’s a real hero, especially if he’s from Tex-ass, land of steers and….he plugged hisself a mustachioed Martian!
I’m shocked, shocked I tell you…if there was any way I could comfort your hurt little feelings….instead of laughing.
8
JOHN B,
Maybe he stole the hatchet to chop some firewood so he could warm his family…or maybe he was gonna use that hatchet to build a lean-to for a group of cripple children…or perhaps he was building a modest shack to house some poor orphans…
Stealing a hatchet is only different from stealing a loaf of bread if the hatchet is used as a weapon, and used to make the theft, or to get away. I didn’t see Lopez doing anything but shoplifting.
In Texas the statute reads:
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
…
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
…
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Focusing on robbery/aggravated robbery. I wonder if this shooting would be justified in another state.
I focus on protection of person, as I wouldn’t shoot someone for stealing much of anything if they didn’t threaten me, but I think the more appropriate statue would be defense of property again… subchapter D. not subchapter C.
recovered by other means… still think this guy would be in for trouble.
They aren’t in Texas. They are in Florida.
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0776/0776ContentsIndex.html&StatuteYear=2018&Title=%2D%3E2018%2D%3EChapter%20776
Shoplifting in Florida is not a forcible felony that justifies deadly force. Therefore to have been justified in shooting the criminal the criminal would have needed to threaten the shop-owner with the hatchet. That didn’t happen and now the shop-owner faces decades in prison.
But it may have become a forcible felony if the shoplifter shoved the store owner, as there are claims he did. That would probably qualify as Robbery.
That was one of the points that I made with Big Mike Brown, that by the time that he assaulted Wilson in his Tahoe he was already a violent felon, from having his shoplifting of the cigarillos turned into a strong armed robbery by his shoving of the store clerk.
Big Mike is on video. It may help the defense if this guy got captured on video being violent
“Shoplifting in Florida is not a forcible felony that justifies deadly force. Therefore to have been justified in shooting the criminal the criminal would have needed to threaten the shop-owner with the hatchet.”
Incorrect. See my nyriad explanations of the laws involved.
We need to pass more laws like that in Texas. As it is, too many states have laws that unduly favor the robbers.
I concur with Branca. I will add that the thief’s conduct gives me the impression that he has done this many times before with no consequence.
It’s been reported that Lopez had a rather extensive history of shoplifting.
–Andrew
http://www.lawofselfdefense.com/patreon
Like I said, no such thing as private property in FL now.
That will probably be ruled as irrelevant, yes?
Unless the shop owner knew that, I think.
For purposes of Dunn’s trial the prior shoplifting by Lopez, as reported, would certainly be irrelevant.
The only exception that comes to mind is if the shoplifting activities routinely ended up involving deadly force violence by Lopez, in which case it might potentially be relevant on the issue of who was the initial deadly force aggressor.
But unless that history was known to Dunn at the time of this event, and absent a claimed act of initial deadly force aggression by Lopez towards Dunn in this event, admissibility would still be unlikely.
–Andrew
http://www.lawofselfdefense.com/patreon
We might say that Dunn’s prosecution is a hatchet job.
Ouch.
Ba Dum Tiss!
It’s a sad day for the good guy.
It’s a sad day for both men. Both men were on auto-pilot, exercising the intellectual ability of a sack of rocks. One’s on the coronor’s table, the other behind bars…not a good day for either man.
C. Lashown,
I feel sorry for Mr Dunn, but as someone who actually use to live in a real bad neighborhood…the kind of neighborhood where every time I came home, I’d look around and think…”Ok, what’s been stolen?” And then it’d be like…
“Ah…my weed-whacker’s gone.” “Great…!”
It was the kind of neighborhood where one night after work, my girlfriend came home to find the front door opened and half of our stuff on the porch. As she turned to get the hell out of there, someone clubbed her in the head and knocked her out…but did the thieves then run away ? No…they finished stealing our stuff while my girlfriend lay unconscious in the yard….!
So I have a hard time working up any sympathy for Mr Lopez…the thief.
Yup, and I drove cab in downtown Seattle for 2.5 years before finding a real job. I count my blessings that I never bought that 9mm I was planning on buying. Even with a justified kill, I would have had to live with myself 24/7 for another 50 years. At some time I would have had to face the fact that I took the life of another person, and wonder what I could have done differently. Renegade ‘good’ men are just as bad as renegade ‘bad’ men, but in a different way.
I fully support the cops and the law, and a man’s right to protect his family…but death is a serious step not to be taken lightly. At some point, the punishment has to fit the crime…not just “you steal = you die”. I would like to propose public executions to sober people up, but we know how that would work out…SATURDAY AFTERNOON ENTERTAINMENT for all the self-righteous sick freaks.
Does anyone know if Mr. Lopez had the hatchet in his hand? If he did then a skilled criminal defense attorney, conversant in Florida law will be able proffer a credible affirmative defense of self-defense.
Conviction before a jury is by no means a sure thing. It will be the prosecutions burden to disprove self-defense. Acquittal is by no means unlikely.
However the cost to Mr. Dunn, even if acquitted, will likely be his position as a County Commissioner, his business, his house and his life as he knew it.
Yes, counsel, I do believe you’re right. The BEST life has to offer Mr. Dunn right now is the loss of: “…his position as a County Commissioner, his business, his house and his life as he knew it.” The worse is MUCH MUCH worse. Who knows, perhaps Mr. Dunn can apply for Mr. Lopez old job as a dishwasher, after he gets out of the joint.
What makes you think Lopez was a dishwasher? Just because he is Hispanic?
He likes his stereotypes
Yes he had the hatchet in his right hand, just behind the door. And if I was the defense attorney, I’d make a big deal about the fact that he doesn’t drop the hatchet. Watch the video frame by frame keeping your eyes on the hatchet. He hangs on to it and won’t let go. Why does he still hang onto it when the gun is pointed at him. Lopez even swats at Dunn’s gun with his left hand but still doesn’t drop the hatchet.
It even appears that as Lopez is falling, he still doesn’t drop it and rather appears to be trying to hang onto it.
Then after being completely down, it appears Lopez is looking toward the hatchet and he tries to pull himself up in that direction. And more interesting, you can see the hatchet handle pull in towards him just before he lays still. Was he STILL trying to get that hatchet? Really, he’s laying on the ground mortally shot and he wants to have the hatchet?
I spelled this out a bit more on that other thread, and I realize that it is entirely possible that all of those movements could be interpreted differently, but I’d like to know why did the handle of the hatchet move in towards Lopez at the very end? Is that just an illusion?
Dunn would be the only one who could clear up much of what we can’t see.
Sooo..he NEVER drops the hatchet and he takes a swipe at his gun. I can see a second of panic by the shooter where he went from trying to hang onto him until the police arrived to fearing that he could get seriously hurt.
If Dunn said something along the lines of, “I’m sick of these guys stealing and I had the right to do it” then I’m down with the charge. But if wasn’t expecting Lopez’s actions at the door and it caused him to panic” then who can say, with absolute certainty that he didn’t, at that split second in time, fear for his life? The whole thing took seconds.
“I panicked” ≠ self-defense.
–Andrew
http://www.lawofselfdefense.com/patreon
True. But it could be the push to involuntary manslaughter with a sympathetic jury. (Just thinking trial strategy here)
by panic I mean that he believed that his life was in imminent danger.
Lopez is still holding the hatchet in his right hand as he hits Dunn’s gun with his left hand.
So now, in Dunn’s mind at the time he decides to shoot, Lopez is not trying to flee, but fighting to knock his gun free while still refusing to drop his hatchet, a deadly weapon which could easily be turned on him in seconds if Lopez is successful.
If Lopez could knock the gun free, it would leave Dunn entirely defenseless against a man whose entire purpose of stealing the hatchet in the first place was most likely to arm himself with a deadly weapon, possibly to use against Dunn to commit a robbery or worse.
It’s very clear to me that Dunn shoots right after Lopez hits out at his weapon and as such, at that point, Lopez is not fleeing, but choosing to take the opportunity to disarm Dunn while maintaining his grip on his deadly hatchet. If his sole desire was to just flee, Lopez would not have put his energy into both of those two endeavors.
“Panic” is an irrational, even counterproductive response to some situation. The press tends to use it as a synonym for “excitement”; as a common example, “Panicked residents fled the burning building.” Fleeing a burning building isn’t panic, it’s just good sense. Something more counterproductive, such as running toward a burning building, is panic—an obvious sign that one’s logical faculties have been overwhelmed.
Since panic is not a rational process, nothing done in “panic” is likely to be defensible in logical terms. “I shot him because I wasn’t thinking clearly” is probably not a promising line of defense, even if true. Particularly if true.
if am interpreting mr branca’s advice correctly, he’s seems to say that we should forego the use of lethal force(even when necessary)in favor of avoiding the potential consequences to us for the use of same–doesn’t that presume that we in fact SURVIVE the encounter?
You are not interpreting it right at all. Mr. Branca doesn’t say you can not defend yourself or your property. What he is saying is you have to know when you can use force up to and including deadly force and when you can’t. You also have to know what type of force to use as well. Deadly force against a shoplifter whose trying to run away? Yeah not going to be legal.
In this case yes the criminal had the hatchet but he was trying to get away. He wasn’t threatening the shop owner with it. There is no justification to shoot the shoplifter.
You just can’t shoot the bad guy whenever you want. You must follow the law. You must be justified.
How do you see the use of deadly force being “necessary” in this case? Necessary for what? Stopping the thief from running away? This wasn’t a hold-up. In fact, there is no mentionof Dunn having been threatened at any time. It was just another weasel sneaking out of the store without paying. Caught on camera.
Huh? The entire legal concept self-defense hinges on is it necessary? If lethal force were never necessary, there would be no Branca book/seminars/postings here, etc.
Prudence and restraint. Dunn had security cameras. Rather than confronting the individual he would have better served himself by calling the police. It is frustrating, but without licensed security guards, confrontation is problematic. A prosecutor can argue that you — the merchant — were the aggressor, not an innocent victim.
I so sadly recall one bodega owner who confronted a shoplifter with a knife. The shoplifter uttered those magical fighting words that one should never utter — “Hah — What are you going to do, stab (shoot) me”? The inevitable tragedy followed with loss of business, prison and ruin.
Dunn would have been better served calling the police rather than trying to detain the shoplifter. His lawyers will now have the very uphill burden of arguing that the theft of a hatchet is a forcible felony under 776.08 of the Florida Statutes.
Being a good attorney, Mr. Branca is simply attempting to limit the liability of people who find themselves in a position where they might use deadly force against another.
In any potential use of force, particularly deadly force, there are always huge potential liability issues. For this reason, you have to when you can use which level of force. You also have to use common sense and apply the standards of necessity and also desirability. In this case, it does not appear that there was any necessity to use deadly force for Dunn to protect himself or others from an imminent physical attack. There was a necessity to use force to stop the imminent commission of a crime and, if that crime proves to be a forcible felony, then the use of deadly force is lawful under statute. When you look at the desirability of using deadly force to stop the commission of this particular criminal act, the advisability of using deadly force goes way down. The positive aspects of stopping the commission of the crime are much less than the possible, or probable, negative aspects of using deadly force in this case. This is the basis for businesses’ policies of not resisting crimes committed against the businesses and their employees. They do not want to deal with the negative consequences of resistance, lawful or not.
So, even if legal, the advisability of using deadly force in this case was very low, as Dunn’s arrest was all but assured. Conviction is another story. But, Mr. Branca is correct when he advises that Dunn’s actions were not well advised.
I recommend his book, “The Law of Self Defense.” Some of the best money you’ll spend, ever.
Go here: https://lawofselfdefense.com/book/
(Andrew, do I get a discount on your next book for the plug?)
There is no telling how many innocent people that Lopez would have attempted to or would have killed with that hatchet, he clearly was not a good person, Dunn would walk if I was on the jury.
I eagerly await your opening argument to the jury.
“Ladies and gentlemen of the jury, I intend to prove without a doubt that my client is innocent of all charges. It is patently obvious that the deceased was not a nice person. Prima facie since nice people don’t steal things. And he stole before. Several times. I will leave it for smarter people than I to estimate how many people he might have murdered with that axe but America is undeniably safer today because that potential number has been reduced to zero. I rest my case.”
Curious about something, as a layman…
Hypothetically, if the store owner had a valid reason to believe the hatchet would be used against another person, could “defense of others” be a defense?
Can he show that valid reason in court? If yes than he probably could be successful in claiming self defense using deadly force to protect another person.
For instance if he knew and could prove that the shoplifter stole the hatchet to attack someone outside with the hatchet. He’d be okay.
But that didn’t happen in this case. The shoplifter was simply trying to escape.
If Dunn had a REASONABLE belief that Lopez was imminently about to use the hatchet to attack an innocent third-person, defense of others would certainly be a viable defense.
I’m unaware of any evidence to support such a reasonable belief in this case, however.
–Andrew
http://www.lawofselfdefense.com/patreon
It’d still have to be an IMMINENT threat. As in, within the next few seconds. You can’t argue that he would have killed his wife with that hatchet tomorrow.
The threat of harm to others has to be imminent and reasonable not hypothetical.
Thanks for the replies… my hypothetical wasn’t in regards to this case as it is. I’d watched Taxi Driver again recently and was thinking along the lines of Scorsese’s character coming in and ranting, and then coming back a day or two later and stealing a hatchet.
Mr Branca,
Any comments on Mac45’s bizarre theory that once Lopez “shoved” Dunn it became a forcible felony and thus self defense?
Also any comments on Drtejka’s police interview?
https://www.youtube.com/watch?v=0WxLM0bBIAI
I would disagree that a simple theft in which the thief resists capture becomes transformed into a felony robbery.
The Drejka police interview I haven’t seen yet, thanks for the link.
–Andrew
http://www.lawofselfdefense.com/patreon
whether using force against a merchant to complete a retail theft is, in fact, technically a robbery, not just a theft, is a valid point of argument. However, as court in Florida have ruled that using force to resist a merchant in his attempt to detain a shoplifter is tantamount to robbery, under the statutes, this could well become the main point of defense.
But, as I said, it does not appear that the prosecution or the investigators viewed the use of force in any light other than use of force in defense of person. Now, I have not read the charging document, so the forcible felony defense could have been considered and discarded. As i said, we will have to wait and see what type of defense is mounted here.
I think civilization suffers when “the law” forbids a citizen from protecting his property. Florid is turning into the UK, apparently.
The law doesn’t forbid Dunn from protecting his property. It just doesn’t allow murder as an option.
Very few civilizations have ever allowed people to protect their property with deadly force.
What sort of force would you find acceptable to protect ones property?
So if you don’t want to die in my home state of Florida don’t steal a $16 hatchet.
So much for private property rights. Just let the looters do their own shopping. Wonder if that form of taxation counts as a tax credit.
Almost no jurisdiction on earth allows — or has ever allowed — people to protect mere property with deadly force. I don’t know where you got the idea that it’s just fine to do so.
Milhouse,
Mere property…? Have you ever come home to find all the things that you worked hard to attain were gone…stolen by crack head thieves….?
(it’s a real pisser)
So they didn’t hang horse thieves in the American West?
Rights, responsibilities, and a sense of proportion. The Pro-Choice world is the exception, not the rule, and not something we should strive for.
The interesting thing to me is that, being Florida, the shopowner could possibly avail himself of the self defense immunity provisions, confused by the press with “Stand Your Ground” (which AB has repeatedly pointed out is actually a statutory abrogation of the Retreat Doctrine). This was one of the interesting facets of AB’s discussion here of the George Zimmerman case. Indeed, this case is a good example why FL provides for both criminal and civil immunity, since he has been both charged criminally, and sued. My first thoughts though is that this case is far less clear cut (Zimmerman’s attys never availed themselves of the immunity statute, but I think that he would have won if he had), and losing the immunity hearing would at a minimum strongly suggest that the civil suit against him was a winner (similar burden of proof). Still, it might be worth rolling the dice.
it seems as if i’m the one that has to be prudent with the use of deadly force then i’m also the one who has to determine, in the moment, the level of the threat–that’s ridiculous–on the street, when confronted or attacked by one or several individuals(think antifa)i’m supposed to defend myself or my loved ones ” proportionally? “–i guess i could ask the attackers ” y’all just going to kick my ass or have you got other plans for that baseball bat/edged weapon/firearm? ”
come on
When and where has that ever not been the law?
Hatchets do not come in those plastic packages that you need a hatchet to open so he must have been armed and dangerous.Up to a jury now.
Lopez will be missed. By Nancy Pelosi.
Ironically, Dunn’s own security camera is what’s going to convict him. Without that, it would just be his word that the guy threatened him with the hatchet, and he’d likely be acquitted.
I think the camera shows that the reason Dunn shot Lopez is because Lopez hit Dunn’s gun with his left hand while expending effort to hold onto the deadly hatchet in his right. That’s not fleeing, that’s fighting. Had the gun been successfully knocked from his hand, Dunn would have been in a very bad spot. Dunn shoots immediately after Lopez hits his gun.
How is that not reasonable doubt that Dunn feared for his life when he pulled the trigger?
The state, and I suspect Dunn, both viewed this incident through the optics of use of deadly force in defense of person, rather than as defense against a forcible felony. As i said before, when viewed as defense of person, then the case for lawful use of force is very weak. The main point of Det. Pough’s investigation was that Dunn did not appear to be in any immediate danger. Even from the viewpoint that it was use of deadly force to thwart the commission of a forcible felony, there is room for disagreement. But, that defense is much stronger. As I noted, earlier, this shooting does not appear to have been necessary to protect Dunn from imminent physical attack. For that reason, it was not a good idea and opened Dunn up to potential criminal and civil liability. However, because Lopez used force against Dunn in his attempt to steal the hatchet, the statutory authority to use deadly force to prevent the imminent commission of a forcible felony, a robbery, now becomes a viable defense.
This is just the charging and arrest phase and we do not have any idea what type of defense Dunn will present. The results of an immunity hearing might be interesting.
Not so sure about that.
“not appear to be in any immediate danger.”
Someone with a hatchet? come on. Someone with a knife, would you say the same thing.
Here is why I say that there is no evidence that Dunn was in an immediate danger from Lopez.
1) The hatchet is in Lopez’s right hand which is outside the door, away from Dunn.
2)Lopez is actively moving away from Dunn and through the doorway.
3) Lopez makes no movement which can be even mildly construed as an attempt to attack Dunn. From his actions it appears that Lopez is attempting to flee, not attack.
This is why I say that trying defend Dunn’s actions as being justified by the use of force in defense of person statute is a loser.
However, using the use of force in defense of property statute is a much stronger defense.
As I watched the 1:04 minute video again, and it seemed more clear to me today (than yesterday) that Lopez swatted the gun with his left hand and then right AFTER he swats it, Dunn shoots (about :30). If it is the case that Lopez hit (or almost hit) Dunn’s gun with his left hand, while still holding the hatchet in his right hand, wouldn’t that bolster Dunn’s case?
So now we have a new type of life insurance policy, get killed by shop owner, have family sue for millions. Secondary public effect is advance anti 2A agenda. We have to look at the larger effect of such situations. Use of force laws, arguably made complex, place individuals in legal jeopardy for exercising rights. We cannot, and should not hold private citizens to the same myriad of rules that police must follow. Doing so sets us up for effective nullification. “Sure, you can have your gun, but if you EVER use it, we will ruin you judicially and through liability.
Unfortunately, the 2nd Amendment does not protect a person’s USE of a weapon, only his right to own and carry one. And, over the decades, governments have imposed more restrictions upon the use of force, especially deadly force.
sorry, I don’t thing it is so clear. Don’t know what happen before or what was said. As someone said, loaf of bread vs ax. Why? You grab an ax to attack, you grab a loaf of bread because you might need it.
While it lacks video, Brevard County Florida case of John DeRossett is of interest. Three plain clothes Law Enforcement Officers, engaged in gunfire with an elderly homeowner as they attempted to remove his niece from his house for prostitution. Mary Ellis DeRossett answered the door and screamed as one of the agents grabbed her. In a 911 call she said: “I don’t know, there was people at the door and they tried to pull me out of the door. I screamed for my uncle.”
Her uncle, John DeRossett responded with gunfire. A gunfight ensued with the three plain clothes officers. Officer John Casey Smith and DeRossett were wounded. Smith seriously in the lower abdomen.
In a sworn deposition, Officer Smith said he did not recall anyone yelling, “Sheriff’s Office.”
A judge denied DeRoseets self-defense immunity claim in August 2018. Other law enforcement officers were fired for maintaining extra-legal relationships with Ms. Derossett.
Made for TV Lifetime movie anyone?
Hmmm.
Will BLM protest if he gets convicted?
Or if he gets acquitted.
Seems they can have it both ways.
I watched the video again, and this time it sure looks to me like Lopez takes a swipe at his gun with his left hand as Dunn shoots. If that’s true, not guilty.
The video up on the other post, the one that is about a minute long, I just watched it again and it is VERY obvious that Lopez swats Dunn’s gun with his left hand just before he shoots.
I can’t believe I missed that yesterday. It is very obvious that is what happened at around :30. After the BS that happened after the Parkland shooting, I have to wonder if they initially put up a video that wasn’t as clear as the one I’m seeing now, because that seems very clear today.
This to me should be key to the shop owner’s defense strategy (and may well be actually why he shot).
On the video (via Monday-morning quarterbacking) it looks as if the shoplifter’s left hand hand just flails back as he’s trying to get clear of the door and the shop owner, HOWEVER the shop owner didn’t have the perspective the camera did.
The shop owner was close in, grappling with the shoplifter, apparently looking at the shoplifter’s face, not down. When he felt his gun get significantly bumped by the shoplifter’s hand (clearly visible in the video), the shop owner’s immediate impression would be, “he’s trying to take my gun!”, and at that moment shooting in self defense to prevent loss of the gun seems entirely justifiable and necessary.
Good point.
have not yet heard the owner’s side of this–believe he will walk from this–only thing that concerns me vis self-defense is two shots–maybe panic, maybe thorough
No, still doesn’t look terribly indefensible.
The situation is that a shoplifter was spotted by the store owner. Store owner moved to intercept shoplifter. It’s not clear that he had any other intentions except to protect his business. There is no reason to suspect that he intended to use any sort of force beyond interception.
Once intercepted, the shoplifter had some clear choices.
Choice 1 – Gracefully acknowledge that he’s been nabbed, abandon his attempt to steal the merchandise, and wait for civilization to do its thing . . . most likely, arrival of the police, followed by the drill he’s probably run through before. As he likely knew, he’d be back out on the street and back to shoplifting in a matter of hours. Being nabbed doesn’t really hurt him all that much.
Choice 2 – Abandon the attempt to steal the merchandise and drop it, but try to get away. He can do that by . . .
2a – . . . running. This does not constitute an imminent deadly threat to the store owner. Or,
2b – . . . fighting. Since there is no reason to believe that the shoplifter has a dangerous weapon, and he doesn’t look particularly formidable, there is still no obvious imminent deadly threat to the store owner.
Choice 3 – Continue the crime in progress, and retain the merchandise, in this case the hatchet—a dangerous weapon. Then he can . . .
3a – run; similar to 2a, but this time with a dangerous weapon—but not one immediately dangerous to the store owner, or
3b – fighting; and this option is dangerous to the store owner.
Options 3a and 3b are not easily distinguished, as in the event, neither had time to occur. Option 3a wouldn’t justify force by the store owner; 3b would. Was the store owner justified in acting as if 3b described the situation? As a viewer not in the thick of the actual event, I see choice 3 developing in the video, and could guess that 3a was more likely to follow than 3b; but I can’t rule 3b out entirely. This is where a jury might see reasonable doubt.
At every juncture leading to the fatal point 3b, the shoplifter made deliberate decisions to escalate the situation. Options 1, 2a, 2b, or 3a would have resulted in no possibility of an immediate deadly threat to the owner, therefore no legal justification for the owner to exert serious force on the shoplifter.
The store owner had no such array of options. Once he decided to attempt an intercept of the shoplifter—not, itself, an unreasonable thing for a store owner to do—everything else is driven by the shoplifter’s unwise choices.
I trust this analysis makes everything even murkier than it was without my help.
IMHO, here is the kicker. Lopez, by pushing or swatting Dunn used force to attempt to remove the property [hatchet] from Dunn’s custody, the store. Under FSS 810.13, this constitutes robbery, which is a forcible felony in Florida.
“812.13 Robbery.—
(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.”
Also, as the hatchet constitutes a weapon, in fact a deadly weapon, simply carrying it while using force to steal it raises the offense from robbery to armed robbery.
And, if Lopez’s actions constitute a robbery, then Dunn is authorized tou use deadly force to stop the commission of a forcible felony under FSS 776.031.
“776.031 Use or threatened use of force in defense of property.—
(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.”
And, when dealing with a man armed with a hatchet, it would seem reasonable to believe that using a pistol to stop him from taking the hatchet, by force, would necessary.
So, as I said, I feel that Dunn has a pretty good defense, as long as he bases it upon use of force in defense of property.
While it would probably have been more advantageous for him to have let Lopez go, rather than shoot him, he did shoot him, none the less. so, now he has to justify that act. And, trying to do it based upon FSS 776.012 [use of force in defense of person] is not going to be as strong a defense.
What is it with guys named Michael Dunn in Florida shooting folks?
The thief’s family should have to pay the shop owner’s legal bills.
it is interesting and enlightening to read all the expert opinions here–gives me hope in many ways
were i to be sitting on the jury, having heard all the legal arguments, seen the evidence and listened to the judge’s instructions, would still come down to just two things really
one is that lopez, in his attempt to steal a(potentially)lethal weapon, instigated and is responsible for the entire chain of events
two, is asking myself if were in the same position as dunn, would i/could i have done the same–though i may have handled the situation sooner(actually IN THE STORE), if i can truly answer ” yes ” then the benefit of the doubt is extended to dunn–no other answer–he walks
will not destroy a good man’s life for doing something i would/could have done myself
was it shoplifting? We saw only a few seconds of video and it looked like Dunns gun was already drawn. I don’t think its shoplifting until you try to leave the store and it looked like Dunn had already drawn his weapon and was in full confrontation, not trying to stop him from leaving and then drawing his weapon. I think saying he shot an attempted shoplifter is a bit premature.
Kinda like saying he shot Trayvon because he was wearing a hoodie. Or man shot in theater for using cell phone. Or man shot for playing stereo too loud, things that didn’t cause a shooting but led up to it.
ScottTheEngineer…
It was definitely shoplifting…the store had 3 cams. There’s a longer video with all three angles.
In one of the cams views you see Mr Lopez put the hatchet under his shirt.
The confrontation happen when Lopez tried to leave without paying…
As far as Dunn having his gun drawn…the struggle started with the hatchet under Lopez’s shirt and ended with it in his hand…so I don’t know…maybe Dunn drawing his gun had more to do with the kind of item Lopez was trying to steal…?
wow! If it is the case that Lopez is pulling the gun from his pants as Dunn is grabbing him as he goes out the door (rather than Lopez pulling the hatchet out before that point), then I say shame on the police for charging Dunn with murder. I haven’t seen the longer video, but if that’s the case then this is such a anti-gun con job what’s the point of even discussing it?
If Lopez is pulling the hatchet from his pants AS he goes out the door, not to let it go but to hold onto it as he swings and hits Dunn’s gun with his left hand – then Dunn has every right to believe his life was in danger at that moment in time.
The fact that the video gives the illusion that Lopez is only trying to get out the door is no excuse as Dunn would have told the police the sequence. I’m not privy to those details, so hopefully that is not how it went down. I hope this is not a shameless attempt to gin up passions with a video that makes things appear as they are not.
I do not mean, in any way, to criticize Mr. Branca as his work helps people to not find themselves in these situations. But this one looks to me like Mr. Dunn had reason to fear for his life.
oh…and furthermore, you are telling me that Lopez had the hatchet in his pants and pulled it back out???!! WHY did he pull it out if his only goal was to escape out the door? That makes ZERO sense.
What is clear is that Lopez had NO intentions of dropping the hatchet, so we can count that out as a reason that he pulled it from his pants.
Oops. I must have seen something else when chasing down the longer video that said it was pulled from his pants which would be a dramatic detail. You said he pulled from his shirt, not pants….oh well.
Here is the original affidavit written by Det. Pough, in this case.
https://www.scribd.com/document/391203522/Michael-Dunn-affidavit
According to some news accounts, Dunn saw Lopez place the hatchet in his pants, on a security camera. Dunn armed himself and went out to confront Lopez. Lopez’s actions, at that point, amount to shoplifting by concealment. When confronted, the hatchet fell out of Lopez’s pants, possibly down his pants leg. Dunn asked him if he going to pay for the item and Lopez said that he was. He picked up the hatchet and walked to the checkout counter. Then he headed for the door without attempting to pay, with the hatchet in his hand. As he began to push the door open, he was apparently confronted by Dunn, for the second time. This is where the actual physical contact took place and Lopez was shot.
Thanks for the link Mac. Did anyone else notice the year on the affidavit? I’ve mistakenly wrote down last years date but never next years.
You’d think being someone that writes the date multiple times per day it would be wrote memory within 10 monthes
Thank you Mac. I can not even begin to take the time to write what a joke that police report is. Where do I start? So Lopez’s father comes in as a distraction for the shop lift and THE VICTIM’S FATHER is the witness that is supposed to assure us that the hatchet just dropped from his pants onto the floor and is the source for Lopez saying:
“I’ll pay, I’ll pay!! as he [Lopez] walked back toward the cash register area. The victim stood at the counter for a moment before hastily attempting to leave the business with the hatchet in his hand”.
Excuse me?? That doesn’t seem to jive with the video footage where Dunn is already in front of Lopez at the door. The policeman makes no attempt to explain how come the victim stood around at the counter for A MOMENT (long time, a moment) without Dunn also being at the counter to take payment or…what …where and what was Dunn doing for that moment? Was he just standing up by the front door to prevent Lopez from getting out, cause he’s in front of Lopez not behind when Lopez “hastily attempt[s] to leave the store”.
What was Dunn doing for A MOMENT? Calling the police, helping other customers? Without knowing where the “counter” is, it’s possible, I suppose, but doesn’t make much sense.
Worse, so many implications in his report of Dunn that it seems to me the officer INTENDED to make Dunn look bad. Notice that it is not a quote when the reporting officer sets the stage with the comment, Lopez “admitted to shooting the suspect 2X because he was stealing the hatchet from his business. Soooo…did Dunn say that? I doubt it.
Well, the officer does admit that Dunn stated “he was in fear” but then the officer goes off with a quote….within what context we have no idea, which makes Dunn look like a boogey man. How many questions in how many ways did the officer ask questions until he got that response? Really, is that’s all Dunn said?? I was in fear, but yeah, “it’s fair to say”. Fair to say to me implies that the officer said, “would it be fair to say you ….. and Dunn finally acknowledges it might be fair to say that. Smelling a set up here.
And apparently the police officer is also blind, since he can’t see from the video that Lopez knocks Dunns gun.
And finally…..Oh goodness…where is Lopez’s father, the star witness? He’s supposedly a witness in the to witness this and yet he shows in no video coming or going so he must still be IN THE STORE!!! You can be sure he’s not still in the store, based on Dunn’s behavior so he hears gun shots and leaves his son to die??? WTF!! Where is the father?????
The report doesn’t jive with the video. Dunn is getting railroaded.
elle…
I worked retail in my 20’s and when I read that Lopez was there with his dad, my first thought was…”Ah…Dad was the distraction!” (common technique)
The longer video shows Lopez lifting up his shirt but not a lot of detail. It makes sense that he would put the hatchet handle down his pants with the business end, hung on the top of his pants.
The video that shows the struggle at the door has an interesting part that no one has talked about..
In the first part of that video Dunn and Lopez appear at the bottom of the frame. Suddenly, Dunn jumps back…Why? Was it something Lopez did with the hatchet…?
When Lopez opens the door he’s holding the hatchet by the head…not the way you’d use it to chop…but when you’re fighting…? Maybe.
Movie fights always look so graceful, but if you’ve ever seen real people in real fights, it can be pretty awkward…!!!
I completely agree with you!
The problem with this case is that, unless you watch the video in slo-mo and very carefully, it does give the illusion that Lopez is only trying to get out the door and gets shot for it.
And worse, the police report wording does not jive with what we can see for ourselves if we look carefully.
The officers would have to be blind not to see that Dunn shot immediately after Lopez hit his gun. Given that detail is missing in the report, either the policeman did not bother to watch it carefully before “rushing to judgement” or intentionally worded it to please superiors chomping at the bit for anti-gun propaganda.
I watched the video and my conclusion as a concealed carrier is the thief is dead because they are a thief and ignored a gun.
The store owner will go to jail because it was not self defense and was an unnecessary use of deadly force. If he had shot him in the leg, he would have still broken the law.
believe the key to this event is the door–the still shots don’t really convey the event correctly–forget about the shoplifting, whether lopez is fleeing, lopez threatened him inside, etc.–lopez, by his actions and as evident by his body position/body language has turned to confront dunn, he’s not attempting to flee, in that instant, dunn is facing an assault from an individual armed with a deadly weapon–as understand florida law, dunn is not required to retreat and is literally at arm’s length from a deadly weapon–would have shot lopez myself
Read the police report that @Mac45 linked above, even Dunn acknowledged in his post miranda interview that the guy made no threatening moves.
Sometimes, it’s just a bad shoot.
Gremlin, I answered this below. He did not say that Lopez did not make any threatening moves, just not any threatening statements. Seems a bit leading, especially since we can see for ourselves that he made threatening moves.
even Dunn acknowledged in his post miranda interview that the guy made no threatening moves.
well, am flat wrong–still, why claim self-defense and then say lopez made no threatening moves? seems nonsensical
Yes it does. But look again, the officer doesn’t say he didn’t make any threatening MOVES. He says “During a post Miranda interview with the suspect, he did not indicate that the victim made any threatening STATEMENTS” We are not told what Dunn tells the officer about Lopez made any threatening MOVES.
We can see for ourselves that Lopez knocks Dunn’s gun right before he shoots him, so we know there were threatening moves. Funny how that’s not in the report.
And the officer says that right before his next VERY leading statement “The suspect also admitted to shooting the suspect 2X because he was stealing the hatchet from his business.”
He don’t know what Dunn because it’s NOT IN QUOTES.
Maybe it really went like this: Officer: did you shoot the suspect 2x because he was stealing the hatchet from your business. Dunn: Yes. I tried to stop him from leaving the store and xyz happened and I was in fear so after he knocked my gun I shot him and and…[officer not listening, busy writing suspect admits to shooting suspect 2x because he stole the hatchet] [
And why aren’t we told where is his father, our star witness, is after his son is shot? Seems a bit key to me.
I should have said: We don’t know what Dunn said because it is not in quotes….among many other things I could correct..lol.
Let me explain why using the use of force in defense of person statute, in Florida, is not a winner in this case.
Here is what is obvious in this case, so far.
1) Lopez was intent upon stealing the hatchet. He could have paid for it, if he had the money, or simply dropped it and ran away. In either case he would probably have been allowed to leave the store.
2) Dunn confronted Lopez twice, while he was attempting to leave the store with the hatchet. The first time when the hatchet was concealed in Lopez’s pants and the second time when it was in his right hand.
3) When Dunn attempted to detain Lopez, the second time, Lopez obviously used force, against Dunn, to escape with the hatchet. He shoved or struck Dunn’s right hand, which held the gun.
4) After Lopez had made physical contact with Dunn and pushed or slapped Dunn’s hand, in an effort to escape, Dunn then shot him.
None of these actions provide any strong evidence that Dunn’s life was in any danger from Lopez, during this time frame. And, as deadly force can only be used, in Florida, in defense of person, is if there is evidence that an attack, which will likely result in death or great bodily, harm is imminent, Dunn’s use of deadly force is questionable. AS Lopez is holding the hatchet by the head, not the handle and moving away from Dunn, it does not appear that an attack was imminent. Also, whether Dunn was in fear of any such attack is only relevant if there is some evidence that such an attack was likely. So, use of deadly force in defense of person is very weak here.
If, on the other hand, the force directed against Dunn, by Lopez, in order to allow him to escape with the stolen property is taken into consideration as complying with FSS812.13, Robbery, then Lopez was actively committing a forcible felony, during the course of which he was armed with a deadly weapon. In this case, Dunn would be authorized un the use of deadly force in defense of property statute to utilize deadly force to stop the commission of said forcible felony, a robbery or armed robbery. And, that is a winning defense. Dunn can always add his fear of Lopez turning on him and attacking him with the hatchet, as this was possible, just not immediately likely.
As i said before, most people, including LEOs and lawyers [both prosecutors and defense attorneys] tend to view the use of deadly force in the light of defense of person, not defense of property. In fact, many otherwise knowledgeable people steadfastly state that deadly force in defense of property can only be legally used, in Florida, in the case of forcible entry into a residence, a domicile, or occupied motor vehicle. For some reason they are familiar with FSS 776.012 and 776.013 but not conversant with 776.031.
There is no right to a fair fight.
Also my understanding is that nothing said to police that helps your case can be used in court, it’s hearsay, so few will even bother to put it in report.
“Also my understanding is that nothing said to police that helps your case can be used in court”
That’s a childish understanding of the matter.
Guessing you learned that from a Youtube video, correct?
–Andrew
http://www.lawofselfdefense.com/patreon
Sounds like advice that one should feel free to talk before counsel. Have to say I would rather be childish and free.
Mr. Branca is correct here. LEOs are like anyone else, some of them write very complete reports. Others not so much.
A good investigator will almost certainly put whatever a potential defendant says into his report. And, the investigator will collect and analyze evidence with an eye to corroborating these statements, indicting or exculpatory. It is not the professional LE investigator’s job to prosecute a person or prove them guilty. The investigator’s job is to collect information and evidence related to an incident with an eye towards finding the truth.
FSS 776.032 is a very helpful statute. Basically, it says that if a person claims to have used force lawfully, against another, in accordance with FSS 776.012 [use of force in defense of person], 776.013 [use of force in defense of home] or 776.031 [use of force in defense of property], then he or she can not be arrested or charged until probable cause exists that the force involved was NOT used lawfully, under those statutes. In this case, it does not appear that probable cause that the force was not used lawfully, under FSS 776.031 was obtained, as it was not addressed in the initial affidavit by Det. Pough. The affidavit makes the case that there was no evidence that any attack, which was likely to result in death or great bodily harm, was imminent, but the possibility that Lopez’s actions amounted to robbery, a forcible felony, and therefor the use of deadly force would be lawful in defense of property was never addressed.
Well interesting points. It seems like using both strategies would be best.
As an observer, what has become the most interesting to me, at this point in time, is that the detective describes in great detail what is seen at the door, yet fails to note that Lopez hits Dunn’s gun with his forearm immediately before firing. Instead he says, “when the suspect lost grip of the victims shirt, the suspect raised his firearm to eye level and fired 2 successive shots.” Ooooh..key detail missing there.
Then he leads the initial wording on his statement about Dunn with a very vague and leading non-quote, notes Dunn stated he was “in fear”, and promptly discounts that fear by using a handy “BUT” immediately followed with an “it might be fair to say”. As I noted before, that seems to me likely that the Detective prompted that answer as opposed to Dunn simply volunteering on his own “I was in fear, BUT it might be fair to say”. Yeah, I don’t think Dunn laid it out just like that.
And add to that the fact that the Detective writes front and center that Dunn acknowledges that Lopez makes no threatening statements [VERY DAMNING] but fails to note Lopez makes threatening ACTIONS.
I’m sorry. Maybe it’s normal not to add suspect’s comments, but the I think the report seems intentionally slanted to paint Dunn in a bad light.
Pre Parkland, Vegas, etc., etc. I’d have just accepted that police act in good faith, without political pressure. But then what do I know?
But I can SEE is that Lopez hit Dunn’s gun and refused to drop the hatchet, even though that would have allowed him to get a better grip on the door to aid his escape. Short of additional evidence that Dunn just digs shooting shoplifters, I’d say I think Lopez’s actions created a reasonable threat.
I’m kind of surprised that no one has pointed out how “Michael Dunn” is an extraordinarily unlucky name for self-defense shooters in Florida: https://en.wikipedia.org/wiki/Shooting_of_Jordan_Davis
I did just in a different thread, lol.
Perhaps nobody bothered because it’s both bloody obvious, and very silly.