FL Jurors Accepted Dunn's Self Defense Claim // Judge’s Instructions Could Set Killer Free

WASHINGTON - Feb. 17, 2014 - PRLog -- The fact that the jurors asked questions like "if we determine deadly force is justified against one person, is it justified against the others?" strongly suggests that they agreed with Dunn's self defense claim with regard to Davis, and were then wondering if that required them to acquit Dunn of attempted murder charges related to the other passengers.

That, at least, is the suggestion of public interest law professor John Banzhaf, who provided legal analysis to justify the self defense shootings of New York City "subway shooter" Bernhard Goetz, DC's "jacuzzi shooter" Carl Rowan, and others.

"There's no logical reason for asking whether a self defense claim applies to all of the victims, or only to one, unless the jurors accepted Dunn’s self defense claim,”  argues Banzhaf.  If the jury disbelieved the self defense argument, they would not be asking how far it extended and to whom, he says.

The judge answered the second question: "No. Self-defense and justifiable use of deadly force applies separately to each count." Immediately thereafter, the jury returned verdicts related to the other passengers in the car, but not to Davis.

This provides further support for the belief that the jury had decided that Dunn was guilty of charges related to the other passengers unless the statutory self defense privilege provided him with immunity from the charges related to the other teens as well.   After all, a person who fires into an occupied car is clearly guilty, unless the immunity provided by self defense protects him.

If this analysis is correct, it suggests that in the planned re-trial of Dunn on first degree murder charges, at least some of the jurors will likewise accept Dunn’s self defense argument.

But there’s a much more serious threat for those who believe that Dunn should be punished.  It appears that the judge's charge regarding the scope of the privilege of self defense is contrary to the clear words of the statute, to two different recent authoritative analyses of the law of self defense, and century's old common law understandings of how the defense applies.  If so, this apparent error could provide for a successful appeal on the three felony charges of which Dunn has been convicted.

Florida's "Immunity from criminal prosecution and civil action for justifiable use of force" stature provides that "a person who uses force as permitted [by Florida statutes] . . . is immune from criminal prosecution and civil action for the use of such force."   Thus it’s important to note that the words of the statute speak only to the force used, and not to or at whom that force was directed.

The words of the statute appear to be all encompassing and without exception, and thus apply to any criminal prosecutions, not just those brought because of injuries to the apparent aggressor (Davis) who allegedly threatened to shoot Dunn.

Indeed, an authoritative legislative analysis of Senate Bill 122 seems to take the same position.  It states that one purpose of the bill is to amend current the law so as to  "no longer preclude lawsuits from third parties who are injured by negligent conduct used in self-defense."  This authoritative legal analysis strongly suggests that the current law makes a defendant who lawfully used deadly force "immune from criminal prosecution and civil action"  brought on behalf of anyone else, not just the person against which the force was used.

Likewise, the Florida Supreme Court blog, in discussing the law regarding self defense, states without any qualification that "Florida’s Stand Your Ground laws provide immunity from criminal prosecution or civil liability to anyone who uses justifiable force as authorized by relevant statutes."  Once again, the immunity is set forth in broad terms, and does not appear to provide exceptions for third parties.

Finally, notes law professor Banzhaf, the judge's answers would appear to be inconsistent with century's old common law.  It provides that the actions of one who acts is self defense are legally privileged, even if a third party - one who is not the actual or apparent attacker (Davis) - is threatened or even injured.  For example, if A shoots at B, thinking that B is about to kill him, and the bullet misses and hits C, A is not liable to C for battery.

In short, suggests Banzhaf, Florida has chosen to provide an even broader range of protections than many other states and the common law do to someone who shoots another person, thinking that his life is being threatened by that person., even if the belief is incorrect.

More correctly, this very broad protection applies unless prosecutors can prove to the very high standard of “beyond a reasonable doubt” that the defendant did not in fact entertain the belief that his life was being threatened, and that deadly force was reasonably necessary.

Holding that the "immunity from criminal prosecution and civil action" applies only with regard to the apparent aggressor, but not to crimes or torts allegedly suffered by third parties, seems inconsistent with the very broad purpose of the Florida statute designed to extend protections beyond those provided in many other states.

Thus, the defendant having been found guilty of four felonies in a decision which could have been based upon the judge’s instructions that any privilege Dunn had regarding his shooting at Davis did not also apply to the other passengers in the car, reversal would be required if that instruction wasn’t a completely correct and precise statement of Florida law, or if the jury could possibly have misunderstood it.

Given the strength of the prosecutor’s factual case against Dunn, a legal argument that the privilege of self defense, once established with regard to his shooting at Davis, also protects Dunn from other criminal charges arising out of the same shooting even if directed towards other parties, is likely to provide what may well be the strongest ground for reversal on appeal, suggests Banzhaf.