Saturday, October 27, 2012

A lesson in what not to do -- Stand Your Ground

Warning Shots Just Aien't That Smart -- usually.
copyright 2012 by jon gutmacher

It's always interesting to see what happens in an actual "self defense" case -- in the sense of what you can do,  or more likely . . . what you shouldn't.  The recent case of State v. Vino,  37 Fla. Law. Weekly D2278 (Fla. 3DCA 2012) is instructive.

According to the appellate opinion -- Mr. Vino was sleeping at home around ten in the morning when his dogs started barking.  His yard is entirely fenced, and the gate was locked.   Unknown to him,  two FPL workers had traversed his fence via a ladder to shut off the power.   Mr. Vino,  whose home had been invaded by criminals before, believed serious criminal activity was happening.   He grabbed a rifle,  took cover behind his truck,  and fired a warning shot to show he was serious.   He then found out the two individuals were FPL employees.  At that point he ordered them off his property -- and as they were leaving fired another warning shot into the air.   He was later charged with two counts of aggravated assault, improper exhibition of a weapon,  and unlawful discharge of a firearm.   After a "Stand Your Ground" hearing -- all but the unlawful discharge were dismissed by the trial judge.   The State appealed.

The Third District Court of Appeal agreed with the trial court, and  said all but the final "warning shot" was lawful -- thus the "unlawful discharge" count would be allowed to go to trial.  However, the appellate court  remanded the case back to the trial court to allow the State to file any other charges it might feel were sustainable -- especially as the appellate court pointed out that once Mr. Vino became aware that the two individuals were not there to commit a crime  (ie:  when he found out they were from FPL) -- the right to use deadly force under Stand Your Ground ended.

So . . .  let's analyze the whole situation.

First . . .  the entry by FPL was most certainly a trespass.  However,  it was reasonable for Mr. Vino to believe it was a burglary and forcible felony -- and probably even a preclude to a robbery.   Thus,  he had the right to arm himself -- and the firing of the first warning shot -- while very "legally" dangerous -- was still lawful.  However . . . once he reasonably determined the two individuals were only FPL employees -- the use of deadly force was out!   Thus . . .  while the State had not charged Vino for the second "warning shot" -- except as a misdemeanor unlawful discharge -- it could have charged him for a separate aggravated assault!!!

Well . . . we all know that an aggravated assault with the discharge of a firearm is a twenty (20) year mandatory minimum!   If the State decides it wants to crucify Mr. Vino -- it's gonna have that opportunity.  At that point,  Mr. Vino's only chance is to convince a jury that the second warning shot was somehow lawful.   How the hell he'll be able to do that will be one heck of a feat!  So -- here's hoping the State is a bit more generous than usual.    Plus -- since the two FPL guys were in the process of leaving when the second shot was discharged -- it wasn't even in aid of stopping the trespass.

So . . .  like I keep telling folks -- warning shots and bravado -- are not real smart in this day and age of mandatory sentences.   If you don't believe your life is at stake -- keep your finger off the trigger!