Pages v. Seliman-Tapia - 134 So. 3d 536 (Fla. Dist. Ct. App. 2014)

Rule:

It is true that under § 776.013(3), Fla. Stat., a person may meet force with force, including deadly force, which on its face appears to contemplate the use of both deadly and non-deadly force. The appellate court also acknowledges that the person seeking immunity under § 776.013(3) must establish that he was not engaged in unlawful activity. However, this "not engaged in unlawful activity" language is not present in the portion of § 776.012, Fla. Stat., which unambiguously provides for the justified use of non-deadly force. Section 776.032, Fla. Stat. (2009), by its express language, provides immunity for a person who uses force as permitted in §§ 776.012, 776.013 or 776.031, Fla. Stat. This language evidences a clear legislative intent to provide alternative bases for asserting immunity under the Florida Stand Your Ground Law, ch. 776, Fla. Stat.

Facts:

On December 27, 2009, Dr. and Mrs. Pages were in the parking lot of the Dolphin Mall when they were confronted by Tapia, who accused Dr. Pages of parking too close to his car, causing it to become inoperable. According to witnesses who testified at an evidentiary hearing, Dr. Pages became very agitated, and was acting in an aggressive and confrontational manner toward Tapia, who had his hands in his pockets and was backing away from Dr. Pages. Dr. Pages continued to be confrontational and was bumping into Tapia with his chest. Mrs. Pages got between her husband and Tapia. At some point, Dr. Pages turned toward Tapia's wife, Ms. Singer, who was telling Dr. Pages to calm down. Dr. Pages then rushed toward Ms. Singer in an aggressive manner. At this point Tapia became worried about his wife, who was disabled, and Tapia rushed toward Dr. Pages and pushed him down, causing Dr. Pages to hit his head. Mrs. Pages testified that Tapia picked Dr. Pages up and threw him in the air, causing him to land on his head. She also testified that in doing so, Tapia made contact with Mrs. Pages, and that her back hurt for a few days afterward. Mrs. Pages was the only witness who testified that Tapia came into contact with her when Tapia pushed Dr. Pages down. Tapia was later charged by information with felony battery on Dr. Pages and misdemeanor battery on Mrs. Pages. Pursuant to a negotiated plea, Tapia pled guilty to the misdemeanor battery, was adjudicated guilty, and the State entered a nolle prosequi to the felony battery charge. The Pages filed a civil lawsuit against Tapia, and in the complaint asserted two counts—assault and battery against Dr. Pages and loss of consortium on Mrs. Pages' behalf. The complaint was later amended to include an additional count of assault and battery upon Mrs. Pages. Tapia asserted entitlement to immunity based on Florida's Stand Your Ground laws. The issue of immunity was referred to a general magistrate, who conducted an evidentiary hearing on June 14, 2012. The general magistrate found that Tapia had established his entitlement to immunity under section 776.032, Florida Statutes (2009), applying a preponderance of the evidence standard. Specifically, the magistrate found that Mrs. Pages was not credible, and that the testimony of all the other witnesses established that Dr. Pages was the aggressor, and that Tapia acted only when Dr. Pages began moving aggressively toward Tapia's wife. Dr. and Mrs. Pages filed exceptions to the general magistrate's Report and Recommendation and, after a hearing, the trial court denied the exceptions and adopted the general magistrate's Report and Recommendation. The court later entered final judgment in favor of Tapia, and dismissed the amended complaint with prejudice.

Issue:

Did Tapia have an immunity in an assault and battery suit under § 776.012, Fla. Stat., as he reasonably believed he had to act to defend his wife against Dr. Pages’ imminent use of unlawful force and he acted with non-deadly force?

Answer:

Yes.

Conclusion:

Even if Tapia’s guilty plea to misdemeanor battery upon Mrs. Pages proved he was engaged in criminal activity under § 776.013, Fla. Stat., Tapia had immunity in an assault and battery suit under § 776.012, Fla. Stat., as he reasonably believed he had to act to defend his wife against Dr. Pages’ imminent use of unlawful force and he acted with non-deadly force. While § 776.013(3), which allowed a person to meet force with force, required a showing that the defender was not engaged in unlawful activity, the not engaged in unlawful activity language was not present in § 776.012, which permitted the justified use of non-deadly force; § 776.032, Fla. Stat. (2009), gave alternative bases for asserting immunity under the Florida Stand Your Ground Law, ch. 776, Fla. Stat., for persons who used force under §§ 776.012, 776.013 or 776.031, Fla. Stat.