STATE OF FLORIDA, vs. JEFFREY BROWN, JAMAL TAYLOR, and... http://www.floridalawweekly.com/flwonline/?page=showfile&file=../sup...

17 Fla. L. Weekly Supp. 651b

Online Reference: FLWSUPP 1708BROW

Criminal law -- Manslaughter with firearm -- Immunity -- Self-defense -- Where co-defendants seated
in vehicle in parking lot of apartment complex on public street or driveway were at place they had
right to be, were not engaged in unlawful activity, and had lawful possession of AK-47 when vehicle
containing individuals with whom co-defendants had exchanged gunfire earlier in evening approached
and fired on them, co-defendants had legal right to use deadly force in self-defense -- No merit to state's
argument that co-defendants were required to shoot into air in warning, use smaller caliber weapon
than AK-47, or use fewer bullets -- Motions to dismiss are granted

STATE OF FLORIDA, vs. JEFFREY BROWN, JAMAL TAYLOR, and ANDRAE TYLER, Defendants.
Circuit Court, 2nd Judicial Circuit in and for Leon County. Case No. 2008 CF 404. SPN: 197112, 177399,
182838. May 17, 2010. Terry P. Lewis, Judge. Counsel: Jeremy Mutz. Joshua D. Zelman, Joshua D. Zelman,
P.A., Tallahassee. Darren Shippey. John Eagen.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

THIS CASE is before me on the motions of Defendants Brown and Tyler to dismiss the charges against them
pursuant to Section 776.032 which provides immunity from criminal prosecution if one has exercised his right
to self defense. For the reasons set forth below, I grant the motions.

A few years ago, the Legislature amended the law relative to self defense, making it stronger and easier to
assert, and also providing additional procedural remedies for one who asserts it. Specifically, the law did away
with the longstanding common law duty placed upon a person to avoid the use of deadly force if that was
reasonably possible without increasing the danger to himself, the so called Duty to Retreat. The law, as
amended, also now provides immunity from prosecution for anyone who lawfully exercises self defense under
the new standard. The case before me may be a good example of the unintended consequences of the change
in the law. Perhaps not.

The defendants in this case have been charged with Manslaughter With a Firearm as a result of a shootout
between the defendants and another group of individuals, specifically including co-defendant Jamal Taylor
and the deceased, Michael Jackson. The shootout was the second such incident of the evening between some
of the principal players.

The trouble apparently started at a result of a disagreement outside of the Mt. Zion Calypso Caf�. It is
unclear exactly what happened or what was said, but some accounts indicate that Jamal Taylor threw a bullet
at an individual, Michael Burgess, which was interpreted as a sign of disrespect and a challenge, or a threat.

Shortly thereafter, Mr. Brown and friends left the Caf�, as did Mr. Taylor and his friends. Their two vehicles
somehow ended up on Kissimmee Street, back to back and a short distance apart, with the occupants
exchanging gunfire. Each side said the people in the other car fired first, and that they simply returned fire in
self defense. No one was killed or injured in this exchange, but both vehicles ended up with bullet holes in
them.

The two sides split up after that. Brown and his passengers, which included defendant Tyler, went to an
apartment complex on Holton Street where Brown's girlfriend lived. Taylor and his passengers went to a fast
food restaurant on Lake Bradford Road. Both groups were still angry and agitated. Both sides were expecting,
perhaps hoping, for another confrontation. That confrontation, another shootout, occurred at the apartment
complex located at Holton Street, resulting in the death of Michael Jackson and the charges against the
defendants.

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Mr. Brown testified that he went to the apartment complex to visit his girlfriend. He knocked on her door but
she was apparently not there. When he got back in his car and prepared to leave, he noticed that one of his
passengers, co-defendant Andrae Tyler, had removed Brown's AK47 from the trunk of his car and was
holding it in his lap in the backseat. It was either discussed or understood between them that this was a
precaution based upon the fact that the other group of individuals might still be in the area. Sure enough, as
the vehicle was leaving the apartment complex along the driveway that leads to Holton Street, they saw Jamal
Taylor's vehicle, a white pickup truck, leading a caravan of several vehicles driving into the complex directly
toward them. When the group of vehicles got closer, someone opened fire on Mr. Brown's vehicle. In addition
to Mr. Brown and Mr. Tyler, the other individuals in Brown's vehicle were Rakeem Edmond and D'Andre
Haynes. According to Brown, it was Mr. Tyler and Mr. Haynes who exited his vehicle and Mr. Tyler who
began firing back with the AK471. As a result of this exchange of gunfire, Michael Jackson, a passenger in
Mr. Taylor's pickup truck, was shot in the head and killed.

As noted above, under the new law, a defendant who properly exercises his right of self defense is immune
from prosecution. As interpreted, the law requires that this issue be determined at a pretrial hearing by the
judge. The burden is on the defendant to prove, by the preponderance of the evidence, that he was exercising
self defense. A hearing on a motion to dismiss is very much like conducting a non jury trial because the
evidence is going to be pretty similar to the case itself. If the judge denies the motion, it proceeds to trial and
the jury considers the issue again.

This case, and the companion case involving the Kissimmee Street shooting, demonstrate the procedural
nightmare, the toll on scarce judicial resources, and the risk of inconsistent results of this new requirement.
The two cases involve several different individuals in two different shootouts. Each individual on each side of
the exchange of gunfire, can claim self defense. Each is entitled to a hearing. This is, in fact, not the first time
that Mr. Brown has raised immunity of self defense in a motion to dismiss. In the companion case, involving
the shootout on Kissimmee Street, I heard his motion and denied it.

Aside from the significant requirement of time and resources, the new procedural requirement creates the risk
of inconsistent rulings. I am talking here not of the difference between a judge's ruling on a motion to dismiss
and the jury's verdict, but of the Judge's ruling on separate motions to dismiss. Depending upon the evidence
presented at the hearings, it is quite possible that a judge could find by a preponderance of the evidence that
Defendant A who shot at Defendant B, did so in self defense. The judge could also, based upon the evidence
presented at a separate hearing, find by a preponderance of the evidence that Defendant B shot at Defendant
A in self defense. The same could happen with each of the other defendants, and conceivably result in all
persons who exchanged gunfire on public a street being immune from prosecution.

Procedural issues aside, the law has eliminated the duty to retreat. There is no obligation to avoid the use of
deadly force if you can do so without increasing the danger to yourself. What this means, as illustrated by this
case, is that two individuals, or even groups, can square off in the middle of a public street, exchange gunfire,
and both be absolved from criminal liability if they were reasonably acting in self defense. The law would
appear to allow a person to seek out an individual, provoke him into a confrontation, then shoot and kill him if
he goes for his gun. Contrary to the State's assertion, it is very much like the Wild West. Maybe that is not
what was intended, but that seems to be the effect of the language used.

In this case, Mr. Brown and his friends and Mr. Taylor and his friends, knew that both groups had been in a
shootout on Kissimmee Street only a short time before. Both were aware of that the others were armed. Yet,
not one of them called to report the incident to the police or took other precautions to avoid another
confrontation and possible gunfight. In fact, I find from the evidence, that both sides to this shootout
expected, anticipated, and even welcomed the additional confrontation.

The law, as amended, provides that if you are not engaged in unlawful activity and you are attacked at a place
where you have a right to be, you have no duty to attempt to avoid the danger, no duty to retreat, and you

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may meet force with force, including deadly force, if you reasonably believe it necessary to prevent death or
great bodily harm to yourself or another.

Mr. Brown was not engaged in any unlawful activity at the time.2 He was at a place he had a right to be,
specifically, the apartment complex where his girlfriend lived on a public street or driveway. Whether the
AK47 was in his possession or in Mr. Tyler's possession doesn't matter. Both were legally entitled to possess
the weapon and it was not concealed.

There is some question as to whether Brown could have avoided the confrontation with Taylor and friends
but it doesn't matter if he could. He had no duty to do so. It also doesn't matter if, as the State suggests, the
defendants were not driving out of the apartment complex as Brown testified, but rather were parked, waiting
for the chance to use that AK47 if fired upon, so long as they were not doing anything illegal, and they were
simply returning fire in self defense - which is what the preponderance of the evidence shows. It appears that
Mr. Taylor and Mr. Jackson, and perhaps one or more other individuals in the caravan, began firing at Mr.
Brown and his passengers as they approached.

Under those circumstances, Mr. Brown and Mr. Tyler had every legal right to defend themselves by the use of
deadly force. They were not required, as the State suggests, to fire gunshots into the air to warn the other
individuals, nor use a smaller caliber weapon, nor limit the number of shots they fired. There is no obligation
to level the playing field in a gun fight. Thus, the fact that the defendants shot 25 to 30 times with an AK47
does not negate their claim of self defense.

I denied Mr. Brown's motion to dismiss relative to the Kissimmee Street shootout because the evidence
presented was insufficient. It was essentially a he said/he said dispute, with no independent or objective
witnesses and no forensics evidence to tilt the scales one way or the other. In this case, however, I have both.

Independent witnesses, residents of the apartment complex, corroborate the version of events as told by Mr.
Brown. One of these witnesses saw the caravan approach Brown's vehicle. Both confirmed that the small
handgun fire preceded the large caliber gunfire. The forensic evidence also supports this conclusion. A shell
casing matching the handgun of Mr. Taylor was found in the street near the location described by Mr. Brown
in his testimony. Mr. Jackson, the deceased, had gun residue on his hands, and a loaded handgun on his
person, when he arrived at the hospital. Both that handgun and another revolver in the vehicle had spent
casings.

One additional legal and factual issue that I raised with counsel at the hearing should be addressed. The
question is, even if you have a right to use deadly force to protect yourself and others, do you have any
obligation to third parties, to innocent bystanders if you will, to not act recklessly in exercising that right. In
other words, even though there is no duty to retreat when you are attacked by someone firing a gun at you, if
you logically and reasonably anticipate such an attack, and the resulting use of gun fire to defend yourself, do
you have any obligation to try to avoid an unreasonable risk to third parties who might be injured or killed as
a result?

There are appellate opinions on both sides of the issue of whether self defense also excuses an inadvertent
injury to an innocent by-stander, with the weight of the case law supporting that notion. These cases do not
seem to address, however, the specific question of recklessness as opposed to merely mistake or carelessness.

Certainly, a good argument can be made that one who expects, anticipates, even encourages a confrontation
which is reasonably believed to likely end in the exchange of gunfire in a public place, acts recklessly with
regard to innocent third parties who will be put a risk as a result. And that would seem, logically, to fit within
the definition of manslaughter by firearm, which requires a death caused by the culpable negligence of
another.

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In this case, however, such a concept or doctrine would not defeat the claim of self defense because the
victim, Mr. Jackson, was not an innocent bystander. The evidence suggests that he was actively involved in
firing upon Defendants Brown and Tyler and, even if he was not, he knew clearly what Mr. Taylor and the
others had in mind when he got in the truck with him and the caravan headed out, looking for Brown and the
others.

Accordingly, for the reasons set forth above, the motions to dismiss of Defendants Brown and Tyler are
Granted.

__________________

1
Tyler suggests that it was Brown who possessed and fired the AK47 but under my analysis, it makes on
difference.

2
He had recently been engaged in unlawful activity, to-wit, the shooting at Jamal Taylor and his passengers
on Kissimee Street, but there was no evidence that he was engaged in unlawful activity at the time Mr. Taylor
and the other vehicles approached.

***

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