The Legal Defense of John Derossett: Part 4
These articles are not presented as any judgement or statement of opinion from CCW Safe. The content represents the thoughts and opinions of the authors. It is presented here to generate thought and discussion.
Don West, criminal defense attorney and National Trial Counsel for CCW Safe has always had a problem with the term “stand-your-ground.” The term “stand-your-ground” specifically refers to the elimination of a defender’s traditional “duty to retreat” before using force in self-defense, but the term is often used generally to describe all the nuances associated with self-defense immunity laws. When Don served as co-counsel in the legal defense of George Zimmerman, he argued that, although Zimmerman should get the protections afforded by Florida’s self-defense law, the case itself wasn’t a “stand-your-ground” case because Zimmerman, pinned to the ground by Trayvon Martin, was unable to retreat, and therefore had no duty to retreat under any interpretation of the law. Someone who has been overpowered and trapped by an attacker is not “standing their ground” when they are physically unable to escape. I worked with Don on the Zimmerman case.
“The confusion,” Don says, “is that when Florida passed their bill creating stand-your-ground, eliminating the duty to retreat, it included other things, including the right to a pre-trial immunity hearing. Part of the bill’s name was ‘stand-your-ground,’ so it became known as the ‘Stand Your Ground Bill.’”
While “stand-your-ground” laws are relatively new (Florida passed the first in 2006), the duty to retreat before using self-defense has almost always been waived for defenders in their own home. That’s the Castle Doctrine. When stand-your-ground laws necessitated the creation of self-defense immunity hearings – pre-trial hearings where a judge decides if a defendant qualifies for immunity from prosecution – virtually all self-defense cases became candidates for pre-trial immunity, even Castle Doctrine cases.
States with stand-your-ground laws that afford defenders a chance at pre-trial immunity also have some important exceptions to the rule. In Florida, and in many other states, in order to be granted pre-trial immunity, the defender cannot be the first aggressor, and they and they cannot be involved in criminal activity. Criminal defense attorney Michael Pannella served on the Zimmerman case as a law clerk during his final year of law school, and he stresses that the exceptions required for pretrial immunity also apply to the ability to waive the duty to retreat in stand-your-ground states. That is to say that a defender who was the first aggressor or is engaged in criminal activity affirmatively DOES have a duty to retreat before using force, even in the strictest of the stand-your-ground states – and often, even if they are in their own homes.
There is also another important exception to self-defense laws: you can’t use force to defend yourself against law enforcement officers – except in one extraordinary circumstance.
That extraordinary circumstance occurred in the John DeRossett case. John had come home from an evening church service and was eating dinner and watching television in his bedroom when he heard his niece desperately screaming for his help. His niece, Mary, had a lifelong struggle with addiction, and when she fell on hard times, John’s family pleaded with him to take her in, and he reluctantly agreed. Mary had resorted to prostitution to fund her opioid addiction. Although John did not know the full extent of Mary’s involvement with prostitution, he knew enough to fear that one of the shady characters his niece was meeting on the internet might one day do her harm. When he answered Mary’s call for help and found her struggling with two men in his dark, poorly-lit front yard, it was the manifestation of his fear, so he drew his pistol and fired a single warning shot into the night sky in an effort to frighten the kidnappers away. What John didn’t know was that the kidnappers were actually ununiformed sheriff’s deputies who had failed to identify themselves while attempting to effect an out-of-policy unwarranted arrest on Mary for second-degree misdemeanor solicitation of prostitution.
When John fired the warning shot, the deputies, who still had not identified themselves as law enforcement officers, began firing at John, and a gun battle erupted on John’s dark, poorly-lit lawn. Before it was over, John incurred two non-fatal wounds, and without realizing it at the time, he had critically injured a deputy. John was charged with three counts of attempted first-degree murder of a law enforcement officer. If convicted, he would have spent the rest of his life in prison.
Attorney Michael Panella represented DeRossett in his legal defense, and he recruited the help of a couple of friends from the Zimmerman case – Don West and myself. The entire self-defense claim hinged on one critical issue: John DeRossett didn’t know the men who came to his house were officers of the law. That is the one rare exception for when a civilian can claim self-defense for using force against a law enforcement officer.
It is important to note that John DeRossett was not a CCW Safe member, and Don and I contributed to his legal defense in our own private capacities. John gave us specific permission to discuss his case with the hope that other armed defenders could benefit from the lessons learned from his ordeal.
The law afforded John the right to an immunity hearing, and that opportunity came after Michael had conducted over 30 depositions, examined nearly 100 pieces of evidence, and read thousands of pages of legal documents. An immunity hearing is like a full-blown trial except there is no jury. A judge is the single decider of fact. For an entire week starting at the end of August in 2018 – just over three years after the incident – Michael and Don argued before the judge that John DeRossett deserved immunity from prosecution because he legitimately did not know the perceived kidnappers were law enforcement officers. The prosecutors argued that John should have known, and they also argued another exception to self-defense immunity; they argued that John waived his right to pre-trial immunity because he knew that his niece was engaged in prostitution, and therefore his home was being used to further criminal activity.
In September 2018, the judge issued a ruling denying self-defense immunity based upon her misinterpretation of the sequence of events, but she failed to address the issue of whether John knew or should have known that men who came to his house were deputies, and she didn’t address the issue of whether John’s knowledge of his niece’s crimes exempted him from immunity. While John languished in jail, unable to afford his bond, Michael appealed the judge’s decision. The appellate court moves slowly, and they’re under no obligation to take up an appeal, but a panel of three judges eventually reviewed this case and sent it back to the trial court, requiring the judge to rule specifically on the issues of whether John knew the men at his house were law enforcement officers and whether the knowledge of Mary’s prostitution constituted John’s using the home to further criminal activity.
The trial judge’s ruling provided a partial victory for John; she ruled definitively that he did not know the deputies were, in fact, law enforcement officers when he fired. She did, however, decide that Mary’s prostitution meant that John was using the home to further criminal activity, and therefore she denied immunity once again. Michael Panella says, “If her ruling would have stood, that would have meant that regular people are culpable for the criminal actions of others. In the self-defense world, that would have meant that, if I’m aware that my teenager is illegally smoking pot upstairs, but someone breaks into my house, I’m not allowed to claim immunity when I go and use deadly force.”
John DeRossett’s entire self-defense claim now hinged on one strange codicil of Florida’s self-defense law.
The trial judge’s ruling would have set a bad precedent, and the appellate court likely understood this because on the day the judge issued her new order denying immunity, the appellate court took the extraordinary step of requiring Michael to appeal her decision. Michael’s subsequent appeal allowed the higher court to overturn the trial judge and declare that John’s knowledge of Mary’s prostitution did not constitute John’s using the home to further activity. With these two arguments settled, the state had no case against John, and they were forced to drop the charges. After a four year-prosecution and nearly three years in jail, John was finally exonerated and set free.
If you found the legal nuances of John’s legal fight a little confusing, that’s okay. That’s the point. The lesson for armed defenders and concealed carriers is that self-defense laws are complicated, and self-defense cases often hinge on an obscure codicil of the law. While it is relatively easy to look up your state’s self-defense statutes, it’s much more difficult to find and understand the defining case law that informs how judges and juries interpret the laws. Just before John’s immunity hearing, for example, there had been a ruling by a higher court that would impact whether the state or the defense had the burden of proof for self-defense immunity. Confused, the judge initially applied the wrong standard. If a sitting judge can be mistaken about the nuances of self-defense law, it is understandable for concealed carriers to be confused as well. It provides, yet, one more reason for why we encourage de-escalation and avoidance. No matter how well you think you know the self-defense laws, there may be some strange nuance you are not aware of that could become a major obstacle in your legal defense. Any time you can safely prevent or avoid a self-defense shooting, you eliminate the legal risks associated with using deadly force. As John’s case proves, even if you’re found to be justified, that doesn’t mean you suffer no consequences.