The story illustrates two points. Videos are not the panacea they are made out to be. Typically a video presents one point of view. That view is restricted to the action within the viewfinder. Additional events outside the frame are not presented. The video does not capture what lead up to or the aftermath of the situation. People will view the video and convince themselves that they have all the facts. In reality, they aren’t much better off than if they read about it in the local paper.
When I taught officer survival, I pointed out the following: “Just because you can do something, doesn’t mean you should.” Poor tactics, tunnel vision, and an unrealistic dependence on the gun as a threat set the stage for this shooting. Change any of those elements and the outcome would have been different.
Posted by Andrew Branca Thursday, October 18, 2018 at 3:00pm
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 commentator, Andrew Branca takes a conservative view and points out several questions need answers before a valid opinion regarding justification can be decided. I tend to agree.
Looking at the situation and using Texas law as a guide I would expand on some of Mr. Branca’s observations. Yeah, I know the shooting happened in Florida, not Texas. I don’t know Florida law but I do know Texas law. Here is the Florida Statute. It is pretty consistent with Texas law.
|THEFT, ROBBERY, AND RELATED CRIMESView Entire Chapter|
|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.(3)(a) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.History.—s. 1, ch. 28217, 1953; s. 1, ch. 29930, 1955; s. 839, ch. 71-136; s. 38, ch. 74-383; s. 29, ch. 75-298; s. 1, ch. 87-315; s. 1, ch. 92-155.Note.—Former s. 813.011.|
Watching the video, it never occurred to me to use defense of property as a justification. The theft was a misdemeanor. Using deadly force to protect property is never a good idea. What I saw was a robbery in progress, a felony.
People use the term theft and robbery interchangeably. They are not. Theft is an offense directed against property with the intent to deprive the rightful owner of its use. Robbery is a crime against a person, where theft is the goal. In Texas, there is no “attempted” robbery. Once the actor manifests his intent to threaten or harm a person in order to obtain property the offense is complete.
The crook intended to commit theft. He stuck a hatchet down his pants. The store owner confronted him. Instead of abandoning his attempt at theft or surrendering, the offender escalated and attempted to flee. The owner was within his rights to detain the thief. When the thief resisted, by using physical force, the offense stopped being a misdemeanor theft and became a felony robbery.
What about the hatchet? I don’t know. The video is not clear. The story indicates that the store owner knew that the soon to be deceased had stolen a hatchet. A hatchet is a deadly weapon; just ask Lizzy Borden and Elizabeth Warren, aka Princess Angry Beaver. With that knowledge and the struggle I think the store owner could make a case for being in fear for his life. If the deceased pulled it out of his pants, then it’s game over. So the question becomes where was the hatchet? The video doesn’t tell us and the cops ain’t saying.
There is one aspect of this shooting that has been ignored. I think it is a dynamic that can be found quite often and may explain inappropriate responses to situations. The French call it:
In this instance the prolonged period had a definite time frame. The dynamic is the the dearly departed was only concerned with escape. The pointed gun never entered into his calculations nor the idea that he may be shot.
At the same time, the store owner pointed his gun believing that displaying the gun would end the confrontation. Boy, was he disappointed.
Neither participant was prepared for what followed. The crook had been arrested many times for theft and never been shot. Why should this time be different?
The store owner was brought up watching TV where the good guy got the drop on the bad guy and the bad guy quit. Why should this time be any different?
The moral of the story is have a plan “A”, a fallback plan “B”, and an “Aw Shit plan”.
The store owner has been charged with second degree murder. According to the updated story, the suspect dropped the hatchet when he was confronted by the store owner. The store owner tried to detain him and a struggle ensued. The suspect retrieved the hatchet and continued his efforts to escape. Witnesses say the suspect did not wield the hatchet in a threatening manner. Keep in mind this confrontation was taking place within arms length. I might buy the argument that the suspect was not threatening from ten feet, but not at arm’s length.
People don’t understand the dynamics of self defense in Florida. “Stand your ground,” is one component of the law and limits the options available to the prosecutor. Self-defense, without stand your ground, is still a viable defense. I think that the store owner will prevail at trial.
It may appear that I disagree with Mr. Branca. This is not necessarily so. I think he is using the situation to illustrate that there is more to self defense than punching holes on paper. More important is the mind set that must accompany the physical skill. The deployment of deadly force must be morally, legally and practically justified. It is used in the last extreme and not because one can.