We are often asked how a person’s disabilities affect self-defense and their rights. Recently, fellow Floridian, Jason Dames, was released from jail after spending two years waiting for trial on second degree murder charges stemming from the self-defense shooting of his attacker. On September 1, 2018, Dames and his cousin were walking to a local restaurant known as the Rice Hut, when the two of them noticed they were being followed by a car driven by Jackie McMiller. Upon arrival at the Rice Hut, McMiller aggressively exited his vehicle yelling “now I got you” to Dames. Dames who is blind in one eye and suffers from a neurological condition which requires him to have a ventricular-peritoneal shunt implanted in his head wanted to prevent a physical altercation, so he cautiously approached McMiller to calm him down and peacefully resolve any issues. McMiller began punching Dames in the head causing Dames to be dazed and fall back in a defensive position. McMiller continued to punch Dames in the head and face. The only thing Dames could do was fall back and grab at McMiller. Dames cousin was able to momentarily stop the attack by McMiller who continued to try and punch Dames. Dames, who possessed a valid Florida Concealed Weapons and Firearm License, was feeling dizzy and believing he was about to pass out and be further attacked by McMiller, retrieved his handgun from his pocket. To stop the attack, Dames shot McMiller in self-defense. McMiller died of his injuries.
A warrant was issued for Dames on October 31, 2018 and he was arrested on November 2, 2018. Dames was given a $750,000.00 bond, but he was unable to financially bond out. Dames would later file a motion to reduce his bond, but it was denied. Dames’ attorney filed a motion seeking immunity on September 9, 2020 and a hearing on the motion was conducted on September 14, 2020. The Court issued an order granting immunity on September 23, 2020 and the State Attorney’s Office filed a notice of appeal to the Fourth District Court of Appeals on September 30, 2020.
The unfortunate facts of the Dames case provide a great opportunity to discuss and analyze a couple of questions we are frequently asked, including how disabilities effect self-defense.
Can I use deadly force against an attacker who does not have a weapon?
Section 776.012(2), Florida Statute, dictates when a person is justified in using or threatening to use deadly force. This section allows a person to use deadly force in two situations. The first is when it is reasonable to believe that such force is necessary to prevent imminent death or great bodily harm to oneself or another person. Second, a person is justified in using deadly force is if it is reasonable to believe that such force is necessary to prevent the imminent commission of a forcible felony, as defined in Florida Statute § 776.08. Although certain forcible felonies would require the assailant to be armed with a weapon, there is no requirement under the law that the attacker or assailant possess a weapon before an individual may use deadly force. The requirement is that your use of defensive force must be Reasonable and Necessary to prevent imminent death or great bodily harm or the commission of a forcible felony.
How is reasonableness determined?
Is it sufficient that the person who used defensive force believed his or her actions were reasonable? Whether or not a person’s use of defensive force was reasonable is determined by an objective standard. Therefore, what the person who used defensive force believed is irrelevant. Florida Standard Jury Instruction 3.6(f) gives the jury guidance in how to determine if a person’s action was reasonable.
Florida’s jury instructions do not discuss how disabilities effect self-defense
In deciding whether (defendant) was justified in the [use] [or] [threatened use] of deadly force, you must consider the circumstances by which [he] [she] was surrounded at the time the [force] [or] [threat of force] was used. The danger need not have been actual; however, to justify the [use] [or] [threatened use] of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that [force] [or] [threat of force]. Based upon appearances, (defendant) must have actually believed that the danger was real. (emphasis added)
Unfortunately, that is the only instruction regarding reasonableness a jury is given. Therefore, the jury is left to determine what a fictitious reasonably cautious and prudent person is and how they would have acted. Ultimately, this leaves the jurors to determine whether a person’s actions were reasonable or not based on whether that juror would have acted the same way under the same circumstances. This so called “objective standard” determination, in actuality, ends up being the juror’s subjective determination of how they would have acted.
Once it is determined whether a person’s use of force was reasonable, the jury must decide whether the force was necessary. Florida Standard Jury Instruction 3.6(f) does not define necessary, so we look to its common definition. According to the Merriam Webster Dictionary, “necessary” is defined as “absolutely needed: required.” To be necessary the deadly force used by a person must have been needed to stop the threat of imminent death or great bodily harm or the commission of a forcible felony. Once again, the jury is left deciding whether another’s person actions were necessary based on that juror’s experience. As you can imagine the decision of the force being necessary can drastically changed based on each individual juror’s perspective.
So yes, a person can be justified in their use of deadly force against a weaponless attacker, if the circumstances are such that a reasonable person under the same circumstances would believe such deadly force was necessary to prevent imminent death, great bodily harm, or the commission of a forcible felony. Think back to the George Zimmerman case. In that case, the jury found that Zimmerman’s use of force was reasonable and necessary because at the time the force was exerted, Trevon Martin was on top of him ramming his head into the concreate sidewalk. The jury found that a reasonable prudent person having his head rammed into a concreate sidewalk would believe deadly force was necessary to prevent death or great bodily harm at the time.
Why was Immunity Granted?
In the Dames’ case the Judge at his immunity hearing was not deciding whether Dames’ actions were those of a reasonable person but rather, did the prosecutor present “clear and convincing evidence” that Mr. Dames’ actions were illegal under the reasonable and necessary analysis described above. Florida Statute 776.032(4), states:
In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution…
If their motion is pled correctly, the hearing starts with the Defendant being presumed to have acted legally. The judge must decide if the prosecutor rebuts this presumption by clear and convincing evidence. In this case, the state had to prove Dames’ actions were not reasonable or necessary. The Court ultimately determined that the state failed to meet its burden and granted immunity to Mr. Dames.
Does age, the size of the attacker, or physical disabilities effect self-defense rights? Are these factors considered in the use of deadly force?
We are frequently asked whether a person who is either elderly, suffers from a physical disability, or is smaller than the attacker has a lower standard in using deadly force. The law does not provide a different standard for a person falling into one of the mentioned categories. However, that does not mean these factors do not play a role in deciding if the use of deadly force is justified. As stated above, the jurors must determine if a reasonable person under the same circumstances would have believed deadly force was necessary to prevent imminent death, great bodily harm, or the commission of a forcible felony. To decide if this “fictitious prudent person” would have used deadly force, they must put that person in the same circumstances as the person who used deadly force. Therefore, if the person who used deadly force was elderly or had a disability, than the fictitious prudent and cautious person must be of the same age and disability as the person who used deadly force to create the same circumstances.
Florida Standard Jury Instruction 3.6(f) allows the jury to take into account the relative physical abilities and capacities of the person who used defensive force and the abilities of the victim of that force. So, although a person who is either elderly, suffers from a physical disability, or is smaller than their attacker does not have a different legal standard than anyone else, their particular age, abilities, and size do play a role in deciding the reasonableness and necessity of their action.
Dames, who is blind in one eye, has had a shunt implanted in his head since he was 8 years old due to a neurological disorder. Furthermore, McMiller was 4 inches taller than Dames and outweighed him by 111 pounds. All these factors would not allow Dames to use deadly force automatically against a physical attack, but obviously play a significant role in deciding the reasonableness of believing death or great bodily harm was imminent. No good faith argue can be made that due to his physical disabilities, Dames was not more likely to be killed or suffer great bodily harm by McMiller than a normal healthy man the same age. Therefore, the answer is yes, physical disabilities effect self-defense case analysis and are a factor to be considered.
What if the attacker is known to be violent and dangerous?
A person’s prior knowledge of his or her attacker’s proclivity toward violence, goes into considering whether his or her actions were reasonable and necessary. Once again, we turn to Florida Standard Jury Instruction 3.6(f) for direction. The pertinent parts read as follows (for our purposes the defendant is the person who used deadly force and victim is the person subjected to the defensive force):
If you find that (defendant), who because of threats or prior difficulties with (victim), had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), you may consider this fact in determining whether the actions of (defendant) were those of a reasonable person.
If you find that at the time of the alleged (name[s] of relevant crime[s]), (defendant) knew that (victim) had committed an act [or acts] of violence, you may consider that fact in determining whether (defendant) reasonably believed it was necessary for [him] [her] to [use] [or] [threaten to use] deadly force.
If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to (defendant), you may consider this fact in determining whether the actions of (defendant) were those of a reasonable person in dealing with an individual of that reputation.
Although I am not aware of the prior difficulties between Dames and McMiller it is only reasonable to assume there was previous problems considering McMiller’s actions and statement of “now I got you.” Further, Dames alleges in his motion for immunity that he knew McMiller had an extensive history with narcotics sales, had recently been released from prison and that McMiller had a reputation for being armed and violent. Not only physical disabilities effect self-defense rights. A Judge or a jury are supposed to consider all the circumstance effecting the person forced to defend themselves when deciding the fate of the accused.
Unless the 4th District Court of Appeal or the Florida Supreme Court overturns the trial court’s ruling that Dames is immune from prosecution, a jury will never get to decide if Dames was justified in shooting McMiller. With all the factors outlined above, it would be hard for a jury not to find Dames’ actions justified. Of course, you never know what a jury will do!
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