Road-rage law: Ask what would Marshal Dillon do

If you’re having difficulty with the State Attorney’s Office’s decision not to file criminal charges against the shooter in the fatal road-rage incident on State Road 60 in November, you need to do this:

Watch a few episodes of “Gunsmoke.”

Reruns of the wildly popular, television western that aired from 1955 to 1975 still can be found on the TVLAND and INSP channels, and they should help you understand the Dodge City mentality embraced by the state legislators who made “stand your ground” the law of the land in Florida.

That’s because, as best as I can figure, the determining factor regarding when it’s legally permissible in this state to use deadly force to defend yourself is: What would Marshal Dillon do?

As fans of the show can attest, Dillon went for his gun only when the outlaws left him no other choice – when they went for theirs, or at least appeared to.

That’s how the stand-your-ground law works here.

As Assistant State Attorney Steve Gosnell wrote in the 25-page memorandum detailing his reasons for not filing any criminal charges against Timothy Sartori, who shot and killed Dennis Hicks at the intersection of State Road 60 and 53rd Avenue shortly after 7 p.m. on Nov. 16:

n “The use of deadly force is justifiable if the defendant reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself …”

n “The danger need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.”

n “The defendant had no duty to retreat if he was not otherwise engaged in criminal activity and was in a place where he has a right to be.”

Sartori, a National Guard member who had served as a machine gunner protecting military convoys in Iraq, defended his right to use deadly force under the stand-your-ground law, claiming he drew his Glock 9mm handgun and “opened fire” only after Hicks threatened to “put a bullet” in him and reached toward the center console of his car.

Based on Hicks’ hostility – Sartori said Hicks had been driving erratically, nearly rear-ending another vehicle before their cars arrived at the fateful intersection, where he claimed Hicks initially challenged him to get out of his car – Sartori told sheriff’s deputies he believed Hicks was reaching for a gun.

“I thought I saw it; I didn’t hesitate,” Sartori said to detectives, who also questioned his passenger, his long-time girlfriend, Melissa Antler.

Sartori, who had a valid permit to carry a concealed firearm, quickly grabbed his gun from a cup holder in his car and began shooting.

Deputies at the scene found Hicks’ lifeless body in the front seat of his car. He had been shot four times, including once in the chest and once in the head. They did not find a gun.

Under Florida’s stand-your-ground law, however, the fact that the dead man wasn’t armed didn’t matter. As long as Sartori believed Hicks’ threat to be real – and investigators found no witness testimony or physical evidence to refute his claim – there was no way Gosnell could justify a manslaughter charge.

Or any other criminal charge.

According to Gosnell’s memo, Sartori didn’t stop shooting until he ran out of bullets, which means he fired all 16 rounds in the Glock’s magazine. Four of them hit a third vehicle, which was driven by Michael Clemente-Botke, who was not involved in the dispute.

That SUV, however, also contained Clemente-Botke’s 3-year-old son, Sam. Judging by the bullet holes in the vehicle, the boy came within inches of begin hit.

“By the grace of God,” Gosnell wrote, “no one in the Clemente-Botke vehicle was physically injured.”

But even though an innocent bystander’s SUV was struck by multiple rounds – even if the child had been wounded or, worse, killed by a stray bullet – Gosnell could not charge Sartori with a crime.

Despite lacking the necessary legal grounds to charge Sartori with manslaughter, Gosnell revealed that he also considered other potential crimes, such as “culpable negligence or discharging a firearm in public.”

But the stand-your-ground law, as it’s currently written, didn’t allow him to pursue such charges.

Gosnell explained that the jury instructions for discharging a firearm in public cases include “lawfully defending life or property” as an affirmative defense against such a charge.

“If Mr. Sartori has an unrebuttable claim of self-defense, would he be criminally liable for an errant bullet that struck the Clemente-Botke vehicle?” Gosnell wrote. “For over 100 years, Florida has shielded those who validly used self-defense and inadvertently killed a non-participant.”

He later added: “If the concept of transferred self-defense applies to the killing of an innocent bystander . . . the concept would apply to the unintentional striking of another vehicle with a bullet where no one was physically injured.

“Under the law, Mr. Sartori’s claim of self-defense, which cannot be rebutted, travels with his bullets.”

And for those wondering about the number of shots fired: That had no impact on Gosnell’s legal analysis of the incident.

“Mr. Sartori said he kept firing until he eliminated the perceived threat,” Gosnell wrote.

That’s exactly what Florida law allowed him to do under those circumstances. That’s why Gosnell, backed by State Attorney Bruce Colton, didn’t file charges.

He couldn’t. He had no good-faith case, and he knew it. Armed with that knowledge, he wrote, it would’ve been “unethical” for him to approve a warrant for Sartori’s arrest, casually charging him with a crime and letting a court decide the self-defense issues later.

Truth is, given the evidence, there’s little chance any charge would’ve held up against early court challenges by Sartori’s defense attorney, anyway.

“Finally, if by some miracle Mr. Sartori’s prosecution survived a statutory immunity hearing,” Gosnell wrote, “the state’s ill-conceived prosecution would most assuredly fail when confronted with the defendant’s motion for judgment of acquittal at trial.”

Hicks’ questionable character, criminal past and reported behavior leading to the deadly shooting would’ve made any case against Sartori even more difficult to prosecute.

Gosnell wrote that Sartori’s defense likely would’ve included Hicks’ “reputation for violence,” which could’ve been used to establish that Hicks, who was driving with a suspended license, was the initial aggressor.

Sartori would not be required to prove that he knew of Hicks’ reputation, merely that there is evidence to show Hicks acted in conformity with his character.

“Mr. Hick’s prior arrest history would assist in the defense’s endeavor,” Gosnell wrote.

According to Gosnell’s memo, Hicks was arrested:

n In 2002 in Indian River County, where he was charged with aggravated battery after someone brandished a knife and Hicks responded by driving his car “angrily and intentionally” into the person, causing injury. Both men were arrested, and the case was not prosecuted.

n In 2006 in St. Lucie County, where he pled no contest to a battery charge after he expressed his dissatisfaction with a restaurant waitress’ service by asking her to come outside so he could “kick her ass.” He later jabbed her in the nose.

n In 2012 in Indian River County, where he pled no contest to a battery charge after striking a female in the face during a dispute over $10. He entered another no contest plea after being charged with criminal mischief for using an aluminum baseball bat to angrily bash a car’s hood, side mirror and passenger-side windshield during a different dispute.

If that wasn’t enough, deputies investigating the case quoted Hicks’ brother, Michael Nosler, saying, “Mom, you know how Dennis is. He has a hot head and probably said something he shouldn’t have said.”

They also quoted Nosler describing his brother as having a “macho man” attitude.

So, based on the testimony and evidence available, there’s little doubt Hicks instigated the incident, putting himself in a situation that cost him his life. But did he really say he was going to shoot Sartori and then reach for something, making Sartori believe his life was in danger?

That’s what Sartori and his girlfriend say, and there is no way to disprove their claim, because the only other compelling witness is dead.

That’s one of several reasons “stand your ground,” which removes any obligation to retreat if possible, is a fatally flawed law.

How do we judge someone’s state of mind? How do we determine who is a reasonably cautious and prudent person? What, exactly, constitutes the appearance of danger?

Should merely being afraid be enough to allow the use of deadly force as a means of self-defense?

Then there’s the most ridiculous aspect of the stand-your-ground law – the absence of any obligation to retreat, if possible, to avoid a potentially deadly confrontation.

If, when confronted with the threat of bodily harm, you can safely escape without resorting to gunplay or other forms of deadly force, why shouldn’t you be legally required to do so, especially if there’s a real chance innocent bystanders could be hurt or killed?

Certainly, Sartori could’ve sped away in his car when Hicks threatened to shoot him.

Even Gosnell thinks so.

“It is this writer’s firmly held belief that Mr. Sartori, without fear of increasing the danger to himself or Ms. Antler, could have avoided this tragic encounter, had he made an effort to retreat with his vehicle,” Gosnell wrote.

“However, as is now patently evident, in Florida, the present state of self-defense law does not require him to do so,” he added. “It is not for this prosecutor to debate the policy, but to enforce the law as written by the legislative branch of Florida.”

Clearly, the law needs to be changed, and I have two suggestions.

Either restore the obligation-to-retreat clause, which probably isn’t going to happen any time soon, or go all in on “Gunsmoke,” making it illegal to carry a concealed weapon and allow the open carry of handguns on our hips in holsters.

With open carry, at least, we’ll know at the outset of any potential altercation who’s got a gun and who doesn’t.

Besides, that’s what Marshal Dillon would do – which means our state legislators might actually consider it.

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