Dear argusfl-ga;
Thank you for allowing me to answer your interesting question. You?re
a new guy on the block so I?ll give you my introductory spiel. I have
been in law enforcement since 1981 and have a significant amount of
insight into the law, how to interpret the statutes, and how they
apply to certain circumstances according to state law. Since our
policy prohibits us from offering legal advice (see disclaimer below)
and the very nature of your question solicits opinion, I will offer
you mine based on my years of experience and publish information
considering situations similar to yours.
First opinion - the bad news: Honestly, it will be very difficult to
defend your actions in this situation. In Florida harassment comes in
many forms but is almost all instances it is considered a misdemeanor.
FLORIDA STATUTES
http://www.leg.state.fl.us/statutes/index.cfm?StatuteYear=2005&AppMode=Display_Results&Mode=Search%2520Statutes&Submenu=2&Tab=statutes&Search_String=harassment
In addition, Florida does not have a statutory guideline that permits
a ?citizen arrest? except in common law, and even in that situation it
extends primarily to businesses wherein a business owner or staff
member detects a theft or other crime on their owned premises and
detains a party for that reason.
?On March 6th, 2001, State Attorney, Jim Appleman confirmed an
assertion by Chief Holloway that Club La Vela did not have the right
to detain individuals suspected of possessing or dealing drugs at the
club. In an interoffice memorandum, he stated that Florida State Law
only allowed individuals to be detained by a business in two
circumstances: 1) a merchant can detain someone when they have
probable cause to believe that the suspect committed retail theft and
that the detention will result in recovery of the property, and 2) the
operator of a hotel or resturaunt may also detain a suspect for
disorderly conduct. Mr. Appleman further suggested that a citizen's
arrest could be made by a Club La Vela staff member, but that the
staff member and Club La Vela would be opening the door to liability
suits if the arrest were mishandled in any way. A citizen's arrest
procedure does not actually exist in Florida state law, however, Mr.
Appleman asserted that Florida common law allowed for the practice.?
EM:DEF
http://www.emdef.org/laws_and_cases.html
Furthermore, Florida?s statutes do not permit the use of force in
response to a misdemeanor. Bumping (or ?ramming?, as the prosecution
will almost certainly assert) with your car is definitely considered a
?use of force? in Florida and virtually every other state
jurisdiction.
FLORIDA STATUTES
CHAPTER 776
JUSTIFIABLE USE OF FORCE
http://www.self-defender.net/law2.htm
Second opinion - the ?potentially? good news and possible defenses:
Let?s take my last reference first while it?s still fresh on our
minds. Depending on the magnitude of ?the other crimes? you say
occurred, you may be able to justify ?bumping? other the car in order
to prevent ?B? from causing you great bodily harm.
?776.012 Use of force in defense of person.--A person is justified in
the use of force, except deadly force, against another when and to the
extent that the person reasonably believes that such conduct is
necessary to defend himself or herself or another against such other's
imminent use of unlawful force. However, the person is justified in
the use of deadly force only if he or she reasonably believes that
such force is necessary to prevent imminent death or great bodily harm
to himself or herself or another or to prevent the imminent commission
of a forcible felony.?
It is not a defense that you used force simply because ?B? attempted
to commit, committed, or was escaping after the commission of, a
forcible felony, or that ?B? initially provoked the use of force. It
is, however, a defense in all those instances if:
(a) Such force is so great that the person reasonably believes that he
or she is in imminent danger of death or great bodily harm and that he
or she has exhausted every reasonable means to escape such danger
other than the use of force which is likely to cause death or great
bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the
assailant and indicates clearly to the assailant that he or she
desires to withdraw and terminate the use of force, but the assailant
continues or resumes the use of force.
-- 776.041 Use of force by aggressor --
Having said that, if you can justify your actions based on these
criteria you may, on the advice of an attorney (which I highly
recommend), consider using that as a defense.
Finally, in Florida a person has an understood right to defend himself
by choosing the lesser of two evils if forced to do so. This is
commonly called ?Defense of Necessity? and is a rare but valid defense
established by judicial precedent. Florida court cited an old English
case re: Reninger v. Fagossa, 1 Plowd. 1, 19, 75 Eng.Rep. 1, 29-30
(1551): "Where the words of the law are broken to avoid greater
inconvenience, or through necessity, or by compulsion," the law has
not been broken.? Based on this fair rule of law, in 1989 the Florida
legislature passed into the Florida Statutes (1989) law Section 2.01,
which provides:
?The common and statute laws of England which are of a general and not
a local nature ... are declared to be of force in this state;
provided, the said statutes and common law be not inconsistent with
the Constitution and laws of the United States and the acts of the
Legislature of this state.?
JENKS v FLORIDA
http://www.druglibrary.org/SCHAFFER/hemp/medical/jenks.htm
In re: McCoy v Florida, the appeals judge wrote:
A defendant is entitled to have the jury instructed on the rules of
law applicable to his theory of defense if there is any evidence to
support such instructions.? Hooper v. State, 476 So. 2d 1253, 1256
(Fla. 1985). The elements of the necessity defense are
(1) that the defendant reasonably believed that his action was
necessary to avoid an imminent threat of death or serious bodily
injury to himself or others, (2) that the defendant did not
intentionally or recklessly place himself in a situation in which it
would be probable that he would be forced to choose the criminal
conduct
(3) that there existed no other adequate means to avoid the threatened
harm except the criminal conduct
(4) that the harm sought to be avoided was more egregious than the
criminal conduct perpetrated to avoid it, and
(5) that the defendant ceased the criminal conduct as soon as the
necessity or apparent necessity for it ended.
MCCOY v FLORIDA
http://www.4dca.org/May2006/05-10-06/4D04-3373.op.pdf
The rule then is that that Florida recognizes ?Defense of Necessity?
but hears the issues only on a case-by-case basis. With that in mind,
you might consider asking your attorney to review this possibility as
an arguable defense. That being, perhaps: You were not ?assaulting?
anyone, rather you were trying to draw the attention of a nearby law
enforcement officer to your own victimization because you had not
other means to do so. Contrary to the claims of the prosecution (if in
fact this is the position of the prosecution), you were actually using
care NOT to cause damage or harm anyone and the proof to that fact is
that no one was hurt, only minor damage was inflicted, and you had, at
your disposal the means to do much greater harm if in fact that bad
been your intent. Clearly it was not.
As for your mental state at the time, it may be defendable that you
were in such a state of anxiety that you were not responsible for your
actions (in essence a temporary insanity plea), but to claim that you
should not be held accountable simply because you had ?had enough? is,
in my unlicensed opinion, a very unwise position to take.
Again, none of this is considered legal advice and nothing here is
intended to take the place of adequate legal representation. This is
merely my opinion (as you solicited) based on my years of experience
and the research conducted and the sole intent is to arm you with
information to take to your counsel for consideration should you
retain an attorney to represent you - and I highly recommend that you
do.
I hope you find that my answer exceeds your expectations. If you have
any questions about my research please post a clarification request
prior to rating the answer. Otherwise I welcome your rating and your
final comments and I look forward to working with you again in the
near future. Thank you for bringing your question to us.
Best regards;
Tutuzdad-ga ? Google Answers Researcher
[INFORMATION SOURCES]
FLORIDA STATUTES
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Index&Title_Request=XLVI#TitleXLVI
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