Well . . . every now and then I really get upset about a case, and especially about some of the judges on these cases. I have this “thing” about judges who I believe are anti-self defense, anti-gun, and who don’t care if they put some poor innocent citizen thru hell to get, or try to get – a conviction on something most of us feel was more than justified. Pease v. State is just such a case, and so — I didn’t hold back in my writing on criticizing the trial judge and the one dissenting appellate judge. I ran into these “types” too often when I was practicing, and couldn’t say anything. Now, being retired, I can. Of course, just my opinions. Maybe you’ll agree — maybe you won’t. At least I got it off my chest. The post follows in the next box:
My Feelings on Paese v. State – or – Wow! Is this one gonna get me in trouble!
On February 28, 2024, the Fourth District Court of Appeals in West Palm Beach, Florida, decided an important self defense case, Paese v. State, 49 Fla.L.Weekly D472 (Fla. 4DCA 2024), a case that will likely have a lot of folks scratching their heads as to why the Broward State Attorney’s Office even bothered to prosecute the case in the first place, and lastly, why the one dissenting judge, Judge Robert Gross, ever got elected to sit on the bench of a Florida court. Let me explain:
Katina Paese is a female, and upstanding community member, then 58 years of age, and board member for cancer research, who lived alone in her Broward County high rise condominium, and on October 9, 2021, was arrested and charged with a battery on a code enforcement officer contrary to Florida Statute 784.083 The apartment has its own elevator stop that opens directly into her apartment foyer. She is the only person entitled to use the stop, and a programed key fob is necessary to open the elevator doors. Besides Ms. Paese, only the property manager of the condo has the means to open the elevator doors at her apartment, and there are rules before he can access the elevator stop, most requiring an emergency, or significant pre-notice and coordination with the apartment owner. On this particular day he had sought permission of Ms. Pease to bring some people up to check on an interior doorway, and Ms. Pease said it was not a good time to do so. At this point, short of an emergency – of which there was none – the property manager had no right of access. Yet, he decided to come up anyway with three other men who were in plain clothes, and not displaying any badges or other identification to take some photos of the foyer – which would also show the interior of the apartment beyond the foyer. Ms. Paese was surprised and “shocked” when her elevator doors suddenly opened with four men standing in the elevator looking into her apartment, and one of them taking photos of the area with his cell phone. Ms. Paese screamed at the men to leave, yelling at them that they had no permission to be there, to stop taking photos, and to leave – and despite her repeated commands none of the men made any effort to leave, none disclosed their purpose or authority, nor did any try to close the elevator doors, or otherwise stop their intrusion. In fact, the property manager had his arm outside the elevator door holding it open so it would not close.
At this point Ms. Pease threw a roll of tape at the men (hopefully not Gorilla Tape as we all know how strong that is), and then when the one man continued to take photos she approached the elevator and knocked the cell phone he was using to take them, from his hand. At this point the property manager removed his hand from the elevator door, the elevator door closed, and the men left. Nobody was injured. The phone survived. And the icing on the cake was that instead of later apologizing to Ms. Pease – she was later arrested by other officers. Well . . . come to think of it . . . that actually wasn’t the icing on the cake – the icing on the cake was that the Broward State Attorney’s Office actually filed the case days later, rather than declining prosecution, as any decent and honorable other State Attorney’s Office would likely do. But, this was Broward County. And after all, it could have been Gorilla Tape! What more can I say?
Well, Ms. Pease hired the Padowitz law firm in Fort Lauderdale, and an immunity defense was raised claiming the right to use non-deadly force both to stop a trespass, and to stop the wrongful interference of her personal property. In essence, an invasion of privacy. The trial court, Judge Edward H. Merrigan, Jr., denied the motion. Suffice it to say, if you are a self defense proponent – you likely do not want him to ever be your judge. A type of special appeal called “prohibition” was then taken to the Fourth District Court of Appeal where an extensive and truly excellent Opinion was written by Judge Edward Artau, with a well written concurring Opinion by Judge Alan O. Forst, that reversed the trial judge, and directed that all charges against Ms. Pease be dismissed, finding that she had every right to use non-deadly force to stop the intrusion into her private living space, and that the degree of force used was both reasonable and proportional to the circumstances. The case stands importantly as confirming the right to use non-deadly force to stop an invasion of privacy that amounts to interference with ones personal property. However, no matter how clear the result may be in this case – there are always those “certain” judges, prosecutors, and others – who will always fall on the “dark side” of the equation where sacrificing an innocent citizen to criminal charges and punishment is just part of the game. In this case – that falls on both the prosecutor, the State Attorney, the code enforcement officers (who still owe Ms. Pease an apology), and Judge Robert Gross of the Fourth District Court of Appeals, who wrote an extensive bitchy dissent including twisting some of the facts to serve the Dissent he wrote. I call this type of judge, an “agenda judge”. That is, a judge who, in my opinion, will bend the facts and the law to serve their own ends, and philosophies. He doesn’t come up for re-election until 2029 – but you might want to enter that on your calendar.
Of course, I would have gone a lot further. I found the whole situation shocking. I believe the property manager’s hand on the outside of the elevator door was a trespass, and not just an invasion of privacy. I felt that the presumptions in Florida Statute 776.013 also applied, as this was an invasion into a dwelling where force (the opening of the doors, as well as holding the doors forcefully open) was used. True, I would never say “deadly force” was something that could stand a constitutional challenge in such a situation – but there’s something wrong with law enforcement, judges, and the State Attorneys Office – when they can’t see that this was a situation that most certainly didn’t deserve to get into the system in the first place.
And last – I hope it was “Gorilla Tape”. They deserved it!
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