ANOTHER BAD SHOOT – Lakeland City Commissioner Michael Dunn, October 3, 2018.
copyright by Jon H. Gutmacher, 2018
On October 3, 2018, while working at his Army Navy Store, Vets Army Navy Surplus, Michael Dunn, who is also a Lakeland City Commissioner tried to intercept a shoplifter, Christobal Lopez, who was in the process of trying to leave the store with a small hatchet which he had stolen, hidden under his shirt. In trying to stop Lopez, Commissioner Dunn intercepts Lopez just before the front door, grabbing Lopez’s left upper arm while Lopez pushes open the front door with his right hand, continuing to try making his escape. Dunn has a semi-automatic handgun clearly displayed in his right hand all this time. The store is also a federally licensed gun dealership. Lopez continues to pull away from Dunn clearly intent on just making an escape, and largely breaks free and gets through the door, although Dunn still has a grip on Lopez’s shirt. Although Lopez does have the small hatchet in his right hand, it is not held in an offensive manner, and in fact Lopez is holding the hatchet outstretched and away from Dunn’s direction the entire time. Lopez suddenly breaks away from Dunn’s grip for a clear getaway when Dunn shoots him twice in the front and side torso. Lopez dies on the scene. All this is on the store videotape. Is it a good shoot?
Well, if you read my book, you already know it wasn’t a good idea, even if it were a good shoot. Rarely, is it lawful to use deadly force to stop a fleeing non-violent crime. There are rare exceptions – but this wasn’t one of them. Let me explain by starting at the beginning, legally.
First, you cannot use or even threaten to use deadly force in Florida unless you have an objectively reasonable belief that you are in imminent danger of death or great bodily harm, or where it is both reasonable and necessary to stop or prevent the commission of a forcible felony. In this case, the theft or attempted theft of a small hatchet is at best, a misdemeanor. Deadly force cannot even be threatened. The threat of physical force – the pointing of the gun – is technically a possible “aggravated assault” that Dunn could have been charged with. There may have been defenses to that, but still – using or threatening the use of deadly force to stop a misdemeanor petty theft is a really bad idea.
Next – you say “but it was a robbery”. No, it wasn’t. At least, it would be highly arguable that it wasn’t.
A robbery is the taking of property by use of force, violence, assault, or putting in fear. F.S. 812.13. While a robbery may occur during flight, in this case there was no attempt by Lopez to use force against Mr. Dunn. Sure, he tried to break away – but that’s all he did. There was no tug of war with the hatchet. There was nothing aggressive about his actions. He just wanted to get out of there.
Now, you may say Mr. Dunn was entitled to use the Stand Your Ground law. But, like almost all of these cases, it was not a Stand Your Ground case. There was no attempt by Lopez to attack Mr. Dunn prior to Dunn pointing the firearm. There was no “imminent” anything (other than the theft) until Mr. Dunn decided to intercede, and stop Lopez. Plus, the attempt to stop an individual from stealing property from a business falls under F.S. 776.031. Not even a Stand Your Ground statute. No, to use deadly force in such an instance you are limited only to forcible felonies. Moreover, even if a forcible felony is taking place and it is reasonable and necessary to use deadly force to stop it (not the case here) – you must first “retreat” if you are “engaged in criminal activity”. The pointing of a firearm when not authorized by law will normally be argued as an “aggravated assault”, thus “criminal activity”, and therefore require “retreat” before deadly force can be used – even in cases where deadly force is authorized.
So, we’re back to square one. It was a really lousy idea to have the gun out, and pointed to try to stop a petty theft. Sure, there will be defenses. But, they’re not good ones. It will be a very tough case to justify. Just my opinion. And, by the way – it’s all in the book – and while there are a lot of folks who think they don’t need the book – I guarantee that’s probably exactly what Michael Dunn thought, too.
It was by all appearances a bad shoot. Your article above, spot on as always, until the last line where you projected that onto Mike Dunn. Nobody but Mike knows what he was thinking to this point … at least publicly. I am one of your biggest fans and supporters of your book. IMHO that last line was wholly unnecessary.
Good analysis, thanks Jon. It’s important to know the law.
Thanks, Jim. Sorry it took so long to post, but lots of medical issues being dealt with on my side the last few months.
I hope that you are well. While reading much commentary elsewhere by people ignorant of Florida law and much nonsense about Stand Your Ground (irrelevant to Mr. Dunn), a question came to me. If we could establish that Mr. Lopez was retreating or did retreat having been “engaged in criminal activity,” and since Mr. Dunn clearly presented a threat of imminent death or grave bodily harm (as proven by the results of the encounter), then could not this have been a Stand Your Ground case for Mr. Lopez instead had he defended himself? (PS, again thank you for publishing your book!)
No. Lopez was engaged in a crime – theft – which does not end during the immediate parts of an escape. While an aggressor who clearly withdraws or surrenders and is facing imminent death or great bodily harm despite his efforts can use self defense – this is a very inappropriate case to even enter that discussion.