IN THE DISTRICT COURT OF APPEAL FOR THE STATE OF FLORIDA

FOURTH DISTRICT

CASE NO. 4D-

LT NO.: 2016CF005507AXX
NOUMAN KHAN RAJA,
RECEIVED, 6/20/2018 12:48 PM, Clerk, Fourth District Court of Appeal

Petitioner,

v.

STATE OF FLORIDA,
Respondent.
/

PETITION FOR A WRIT OF PROHIBITION

Pursuant to Rule 9.100(e), Florida Rules of Appellate Procedure, Nouman

Khan Raja Petitions this Court for a Writ of Prohibition directed to the lower tribunal

which denied a motion to dismiss invoking immunity in a criminal case based on

Florida’s “Stand Your Ground” law.1

CERTIFICATE OF INTERESTED PERSONS

Hon. Samantha Schosberg Feuer, judge of the lower tribunal, the Circuit

Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida;

1
The hearing in the Trial Court lasted two days. Although the transcript for both
days were ordered the defense has only received the transcript of Day One. The
defense will file an amended petition shortly after receiving the remaining
transcript from Day Two.
Richard G. Lubin, Scott Richardson, Ralph E. King and Steven H Malone, Esq.,

counsel for Nouman Khan Raja; Nouman Khan Raja, petitioner; Adrienne Ellis,

Assistant State Attorney, and Brian Fernandes, Assistant State Attorney; Corey

Jones, complainant.

BASIS FOR INVOKING JURISDICTION

This Court has original jurisdiction to issue a writ of prohibition pursuant to

Article V, Section 4(b)(3), Florida Constitution and Rule 9.030(b)(3), Florida Rules

of Appellate Procedure. The order sought to be reviewed is a non-final order

denying a motion to dismiss invoking immunity in a criminal case rendered June 1,

2018. App. M. Denial of immunity is appropriately reviewed pretrial by writ of

prohibition. State v. Wonder, 162 So.3d 59, 61 (Fla. 4th DCA 2014).

FACTS UPON WHICH PETITIONER RELIES

1. Introduction.

The trial court’s order denying immunity is riddled with error. Five are

discussed here: (1) The court improperly found Officer Raja pulled out his gun

before approaching Jones, despite a complete absence of evidence in the record to

support the existence of this “fact.” Without this unsupported, and unsupportable,

finding, the state failed to meet its burden of proof. (2) The court improperly viewed

the self defense issue from the perspective of the decedent, and found Officer Raja’s

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manner of approaching Mr. Jones, which involved neither commission of a violent

felony nor initiation of an assault, negated his right to self-defense. (3) The trial court

improperly found Officer Raja “provoked” the deadly conflict with Jones (while

disclaiming this finding as a basis for its ruling) despite the lack of any evidence in

the record to support this finding. (4) The trial court improperly admitted and gave

weight to evidence concerning police “best practices” despite its irrelevance to any

of the issues in the “Stand Your Ground” hearing. (5) The trial court improperly

placed the burden of proof on Officer Raja to show he had the right to use deadly

force in self-defense, instead of requiring the prosecution to prove by clear and

convincing evidence he lacked such a right.

2. The facts.

a. Preliminary Matters

Officer Raja is charged by Amended Information with manslaughter by

culpable negligence while armed (Count 1), and attempted first degree murder with

a firearm (Count 2), alleged to have been committed on October 18, 2015. Amended

Information, App. A. By amended motion, Officer Raja raised justifiable use of

force as a defense and invoked his immunity from prosecution provided by Sections

776.032 and 776.012, Florida Statutes, and related law. He requested an evidentiary

hearing at which the state would bear the burden of proof of demonstrating by clear

and convincing evidence the shooting was not justifiable, and after such hearing,

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dismissal of all charges. App. B. The state responded both to this amended motion,

as well as the original one, App. C and D, and the defense replied, App. E.

b. Officer Raja’s Sworn Statement During the Walk-Through.

The trial court’s factual findings about the videotaped statement are as

follows:

The Defense played a video of Raja’s “walk-through” of the incident for the
Court. (Defense Ex. 5). During the walk-through, the Defendant gave a
sworn statement on camera at the scene around 8 a.m. on October 18, 2015,
approximately five hours after the shooting. During the sworn statement,
Defendant testified he was patrolling the Palm Beach Gardens area in an
unmarked white van and setting up decoy cars for a plain-clothes operation
to investigate recent auto burglaries. Defendant stated he had his tactical
vest, duty holster, and police radio in the van with him, but none of them
were on his person when he got out of his van. Defendant testified around 3
a.m., he saw a silver SUV on the Interstate 95 southbound off-ramp, which
he believed was abandoned. At that point, Defendant radioed his supervisor
for clearance to investigate the vehicle. Then, Defendant testified he drove
the wrong way up the I-95 exit off-ramp and parked in front of the vehicle
diagonal to the stopped car.

Defendant testified as soon as he pulled up to Jones’s vehicle, Jones got out

of his car, which then caused the Defendant to get out of the van. Defendant
testified that he stated, “Police, can I help you,” and Jones immediately
stepped back, drew his gun, and pointed it at the Defendant. Defendant stated
he saw a red laser flickering on Jones’s gun. Defendant testified he drew his
gun as well and told Jones to drop his weapon. Defendant stated he fired two
or three shots at Jones while they were both near the front of the two vehicles.
Defendant testified Jones started running on the grass right by the guardrail
when he then saw Jones spin around as if he was pointing the gun with his
right hand to shoot back at the Defendant. Defendant testified he fired another
volley of shots and saw something silver fall to the ground. Defendant testified
he called 911 as Jones was running away, before the second volley of shots.

App. M, 659-60.

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 During the walk-through Officer Raja described the events that evening: Mr.

Jones pointed a gun at him, twice, and he responded to those deadly threats, twice.

Not clear from the trial court’s order is that Officer Raja was still driving the van up

to the SUV at the time he observed the driver’s front door opening and Mr. Jones

quickly jumping out. App. J, 240-41, 249. It was at that point Officer Raja

immediately brought the white passenger van to a stop, and exited the van,

attempting to approach the vehicle to make contact with the driver. As Officer Raja

approached the vehicle, he identified himself as a police officer. A brief exchange

took place. Jones immediately pointed his gun at Officer Raja. App. J, 241-43.

Officer Raja repeatedly yelled for the male to put his hands up and to “drop.” App.

J, 243. Officer Raja stated he saw the silver muzzle pointing at him, and that he

believed the gun was equipped with a red laser. App. J, 241. Fearing imminent death

or great bodily harm, he drew his back up gun from his waist and fired three (3)

rounds from hip level in the direction of Mr. Jones. App. J, 243-44. Mr. Jones turned

and ran northwest into the grassy area on the west side of the interstate off ramp.

Officer Raja, without the benefit of cover or concealment, followed behind him. Mr.

Jones spun around toward Officer Raja as he ran past the guard rail along the west

side of the off ramp. Officer Raja saw a flash and Mr. Jones raised his right arm

pointing the gun again. App. J, 244. Officer Raja described the motion as a whole

body spin and saw the gun in the man’s right hand. App. J, 244. Officer Raja, again

5
fearing great bodily harm or imminent death, fired three more rounds toward Jones.

Officer Raja testified that he saw him drop and “something silver” fall, App. J, 244,

but lost sight of him in the darkness. App. J, 244-45.

Officer Raja retrieved his cellular phone from his pocket and called 911. App.

J, 244. Although he was unable to see Mr. Jones, Officer Raja continued to shout

commands into the darkness while waiting to talk to the 911 operator and call for

backup. App. J, 245; AT&T recording, Def. ex. 3.

c. The AT&T Recording.

On this issue, the Court found:

First, Defendant called Frank Piazza (“Piazza”), a forensic audio analyst,

albeit not a voice recognition analyst, to discuss his evaluation of Jones’
roadside assistance call. The call was played numerous times during the
hearing and the below is what can be heard between the Defendant and
Jones:

Jones: “Huh?”
Jones: “No, I’m good. Yeah, I’m good.”
Defendant: “Really?”
Jones: “Yeah.”
Defendant: “Get your fuckin’ hands up! Get your fuckin’ hands up!”
Jones: “Hold on.”
Defendant: “Get your fuckin’ hands up! Drop.”
(Three gunshots heard)
(Car door open bell heard)
Defendant: “Drop it!”
(Three gunshots heard)
(Car door open bell heard)

Piazza testified, upon enhancing the call, he was able to hear another voice
at the beginning of the exchange between Jones and Raja, before Jones says
“huh,” and there is a 50 percent chance it is Raja’s voice. Piazza further
6
 testified he believes the voice does not belong to Jones nor anyone on the
roadside assistance call. Piazza testified that multiple syllables were uttered
and could have contained the word “police,” or something else. The parties
stipulated there was a voice or a noise prior to Jones saying “huh” on the
roadside assistance call. However, no one is able to state with certainty what
was said before Jones said “huh,” nor who said it.

The Court finds Piazza credible; however, upon listening to the call
numerous times, the Court is unable determine what was said prior to “huh?”
Furthermore, any argument regarding whether Defendant identified himself
as a police officer as he approached Jones is moot, since the first discernible
word on the call was Jones saying “huh?” It is common sense that in saying
“huh,” Jones did not hear what was, if anything, specifically said to him that
evening.

App. M, 658-59.

Piazza’s testimony also revealed the cell microphone was designed not to

capture Officer Raja’s voice from the location he testified he was identifying himself

as a law enforcement officer. App. J, 169-70. In addition, after Piazza was able to

enhance the sounds on the AT&T recording, his expert opinion, to a 100% certainty,

was that a human voice preceded the recorded voice of Mr. Jones saying, “huh?’ on

the AT&T recording. That human voice was from someone other than Corey Jones

or the call center. App. J, 176-78; 206.

In addition, Dr. Michael Knox later testified he synced the 911 call with the

AT&T/Allied call, which shows that when Raja is back at his van, and after he passes

the open door of the SUV, the cell phone connected to the AT&T call center loses

the sound of Raja's voice. App. J, 392-94, 399-403. The trial court briefly addresses

this issue:

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 Then, the Defendant called Michael Knox (“Knox”), a forensic consultant, to
testify regarding his reconstruction of the crime scene. Knox testified that he
synchronized Jones’s roadside assistance call with Raja’s 911 call, which
illustrated that Defendant did not call 911 until approximately 33 seconds after
the second volley of shots was fired. The synced phone call was admitted into
evidence (Defense Ex. 7). …The Court finds Knox’s testimony credible.

App. M, 661.

d. The Evidence Recovered at the scene: Corey Jones’ personal firearm,

location of shell casings, and the light reflectivity experiment conducted by the
Crime Scene Investigators.

As the state’s CSI and others attested, Corey Jones’ gun was recovered at the

scene, a number of yards from his SUV and in the direction consistent with where

his body was found. Def. 6 (aerial photo); State 9; App. M, 660-61 & 665. Neither

Mr. Raja’s prints nor his DNA were on that gun. App. J, 350. The matching, open

gun box could be readily seen in the open glove compartment of Corey Jones’ SUV.

App. J, 313.

Though the evidence showed he had not seen Corey Jones’ gun after it was

recovered in the light of day, See App. J, 350 (LaForte), Officer Raja told

investigators it was equipped with a laser which he saw when Jones pointed it at

him. Order at 12, App. J, 243-44, 251-52. When Mr. Jones’ gun was located, it did

not have a laser sight. However, law enforcement’s light reflectivity test shows red

lights flickering or glinting off the barrel of the gun under circumstances similar to

those faced by Officer Raja. On this issue, the trial court found:

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 Next, the Defendant called Detective Kenny Smith (“Smith”) of the Palm
Beach Gardens Police Department. …. Smith testified he conducted the
“light reflectivity test” several days after the shooting to determine if the
traffic lights at the scene could have reflected off Jones’s gun to mimic a
laser. Smith testified he approximated where Jones would have been
standing during the incident, but was not able to be precise. Smith testified
the firearm was reflecting red light during the “light reflectivity test,” but did
not opine on the validity or accuracy of the test. Photos of the test were
admitted into evidence (Defense Exs. 9A-K). The Court finds Smith’s
testimony credible.

App. M, 662.

e. Civilian Witness testimony- Corey Jones’ gun and other background.

During the state’s case, Corey Jones’ brother Clinton testified Corey Jones

had just bought the gun a few days before, and showed it to him. The state also called

Corey Jones’ friend Matthew Huntsberger, who testified to events earlier in the

evening. As to these witnesses, the trial court found:

First, the State called Matthew Huntsberger (“Huntsberger”) to testify

about what happened prior to the shooting, on the evening of October
17 and the early morning of October 18, 2015. Huntsberger testified
he was playing music with Jones at a show in Jupiter that night. After
the show, Jones called Huntsberger because his car was broken down,
and Huntsberger went to try to help Jones. Huntsberger testified he
offered to drive Jones home, but Jones did not want to leave his car
with his drums inside. Huntsberger identified a photo of Jones, which
was admitted into evidence (State Ex. 5). Huntsberger gave
inconsistent statements regarding the amount of alcohol he had to
drink that night and further testified that he and Jones had smoked
marijuana at the show. The Court does not find Huntsberger to be a
completely credible witness.

The State then called Clinton Jones, Jr., Corey Jones’s brother,
(“Clinton”) to testify. Clinton testified Jones was left handed and that
Jones had recently bought a gun, but he was not aware of Jones
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 having a familiarity with firearms. Clinton stated Jones did not have a
reputation for violence. On the night of the shooting, Clinton testified
Jones called him and told him his car had broken down, but he did not
want to leave his drums in the car. Clinton testified that Jones seemed
calm and did not sound impaired or angry on the phone. The Court
finds Clinton’s testimony credible.

App. M, 663-64. Jones stayed with his SUV and eventually called AT&T Wireless

Roadside Assistance (“AT&T”) for help with his vehicle. This is the phone call

recorded by AT&T, Def. Ex. 3.

f. Other findings at the Scene.

The trial court found:

Defendant then called Michael LaForte (“LaForte”), a forensic

consultant, to testify regarding crime scene reconstruction. An aerial photo of
the crime scene annotated with boxes identifying various locations and an
approximation of Raja and Jones’s positions during each volley of shots was
admitted into evidence (Defense Ex. 6). LaForte testified based on the location
of the shell casings, Defendant was approximately 5-7 feet behind Jones’s car
when the first volley of shots was fired and Jones was about 20-25 feet away
from Raja at this time. Jones’s body was found approximately 196 feet behind
his car; Jones’s gun was found approximately 72 feet behind his car. LaForte
testified that there was no red laser on Jones’s gun when it was found and that
the Defendant’s walk-through statement is inconsistent with the physical
evidence in this case. The Court finds LaForte’s testimony credible.

App M, 660-61. And the Trial Court found at App. M, 665:

The State then re-called Crime Scene Investigator Thomas to verify several
photos taken at the crime scene. A photo of Jones’s gun obscured by the grass
before anyone had touched it was admitted into evidence (State Ex. 9). State
Exhibit 9 is similar to Defense Exhibit 1H, in which the gun was flipped over
to reveal the writing on the reverse side of the gun. The Court finds Thomas
credible.

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 In its order, the trial court neglected to mention ballistics show the defects in

the palm tree (the first volley-fresh sap) and the pine tree, (the second volley-actual

gunshot strike), and the related trajectory demonstrating Officer Raja’s and Corey

Jones’ probable locations when each of the two 3 round volleys were fired. Def. Ex.

6; App. J, 332-345.

g. Forensic Pathologist Findings.

The trial court found:

The next day, on May 8, 2018, Defendant called Dr. John Marraccini
(“Marraccini”), a forensic pathologist, to testify regarding Jones’s injuries.
Marraccini testified that Jones received three gunshot wounds: two
perforating wounds through each of his arms, and one penetrating wound
that went through the upper right side of his chest and lodged inside the left
shoulder. Marraccini testified that he was not able to determine the order of
the wounds. Although Marraccini demonstrated many potential body
positions Jones could have been in to receive the wounds, he testified that he
was unable to determine how Jones was positioned. Furthermore, he was
unable to conclude in which hand Jones was holding his gun. Marraccini
testified he did not believe that the fatal wound would have been
immediately incapacitating, and it would have been possible for Jones to
continue moving after he received the wound. The Court finds Dr.
Marraccini’ s testimony credible.

App. M, 661-62.

And it found:

The State called Dr. Gertrude Juste (“Juste”) from the Palm Beach County
Medical Examiner’s Office to testify regarding Jones’s autopsy. Juste testified
that Jones’s cause of death was a gunshot wound to the chest and the manner
of death was homicide. Autopsy photos were admitted into evidence (State
Exs. 10A-I). Juste testified that the entrance wounds in each of Jones’s arms
were on the back, consistent with someone who is facing away from the
shooter. Juste testified that the chest wound was fatal and significantly
11
 damaged Jones’s heart and lungs. Juste testified that wound entered through
the right front of Jones’s chest. Juste testified Jones could have kept moving
for a short time after receiving the wound, but not the 41 yards from where
his gun was found. The Court finds Juste credible. The State then rested its
case.

App. M, 665.

Dr. Juste admitted on cross that Dr. Marraccini and two other Medical

Examiners retained by the state disagreed with her conclusion that Mr. Jones could

not have traveled any significant distance after the chest wound. T--

h. Other state witnesses the trial court credited:

The State then called Sergeant Javier Garcia (“Garcia”) of the Palm
Beach Gardens Police Department to testify. Garcia testified
regarding the difference between plain-clothes and undercover police
operations; plain-clothes operations generally require an officer to
wear a tactical vest or some kind of identification, while undercover
operations require no identification. Plain-clothes detail means an
officer should be able to be identified. Garcia testified that
Defendant’s operation was plain-clothes and he was required to have a
tactical vest, radio, department-issued firearm and police equipment
readily available. The Court finds Garcia’s testimony credible.

The State then called Sergeant Andrew Spragg (“Spragg”) of the

Palm Beach Gardens Police Department to testify. Spragg testified he
was the first to respond to the crime scene and he spoke with Defendant
when he arrived. Spragg testified that Defendant told him that the
suspect had a gun, Defendant believed he had shot the suspect, and
Defendant saw the suspect’s gun drop in the grass. Spragg testified
Defendant said he did not have his tactical vest on during the incident.
Spragg made an oral report of the incident, in which he stated that he
had a conversation with Defendant when he arrived at the scene. The
Court finds Spragg credible.

App. M, 664.

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 i. Use of Force experts

As to other experts regarding the use of force, the trial court found:

Defense then called Dr. Christopher Chapman (“Chapman”), of the

National Excessive Force Institute, to testify regarding his opinions on the
case. Chapman testified that the standard for use of force is objective
reasonableness, and he believes that each of the six shots fired by Defendant
was reasonable. Chapman testified he did not consider the manner in which
Defendant approached Jones’s vehicle as one of his “units of analysis”
because an approach is a police tactic. Chapman testified that he did not
consider Defendant’s credibility when assessing the reasonableness of the use
of force. The Defense entered a “light reflectivity test,” which demonstrated
that the traffic lights near the crime scene could have reflected off Jones’s gun,
into evidence (Defense Ex. 8). The Court does not find Chapman’s testimony
credible due to the numerous inconsistencies in his testimony.

App. M, 661.

The court relied on the state’s expert Mr. Libby, writing:

The State then called W.D. Libby, (“Libby”) a law enforcement consultant
with 35 years of law enforcement experience, to testify regarding his
opinions on the case. Libby testified that he considered Defendant’s
behavior “lazy and reckless,” and described the appropriate way to approach
a vehicle to ensure the safety of all parties. Libby testified that Defendant (1)
failed to follow accepted police practices in his initial approach to
investigate Jones’s vehicle; (2) failed to follow accepted police practices in
his initial approach to Jones; (3) failed to follow best practices concerning
how the plain-clothes operation was to be conducted; (4) did not follow
accepted police practice of identifying himself with either a verbal
announcement and/or the wearing of police indicia of authority; and (5)
relayed a version of events during his walk-through with investigators that
attempted to justify the shooting of Jones, but his testimony is not supported
by forensic evidence. Libby testified he believes Defendant’s creation of the
circumstances directly resulted in the death of Jones and Defendant’s use of
force was not justified. The Court finds Libby’s testimony credible.

App M, 664-65.

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 NATURE OF THE RELIEF SOUGHT

Petitioner seeks a stay of the trial court proceedings, an opportunity to amend

this petition upon obtaining a complete transcript of the motion hearing, and

ultimately, a decision of this Court vacating the order denying the amended motion

to dismiss, and an order to dismiss the Amended Information.

STANDARD OF REVIEW

On consideration of a petition for a writ of prohibition to the denial of an

immunity motion based on the “Stand Your Ground” law, this Court “defer[s] to the

circuit court’s factual findings when supported by competent, substantial evidence,”

and conducts a “de novo review of the legal issues.” Wonder, 162 So. 3d at 61-62.

This Court holds:

The term “competent substantial evidence” does not relate to the

quality, character, convincing power, probative value or weight of the
evidence but refers to the existence of some evidence (quantity) as to each
essential element and as to the legality and admissibility of that evidence.
Competency of evidence refers to its admissibility under legal rules of
evidence. “Substantial” requires that there be some (more than a mere iota or
scintilla), real, material, pertinent, and relevant evidence (as distinguished
from ethereal, metaphysical, speculative or merely theoretical evidence or
hypothetical possibilities) having definite probative value (that is, “tending to
prove”) as to each essential element of the offense charged. Dunn v. State, 454
So.2d 641, 649 n. 11 (Fla. 5th DCA 1984).

Joseph v. State, 103 So. 3d 227, n. 1 (Fla. 4th DCA 2012).

ARGUMENT IN SUPPORT OF THIS PETITION

“Other than random attacks, all such cases begin with the decision of a police
14
 officer to do something, to help, to arrest, to inquire. If the officer had decided to
do nothing, then no force would have been used. In this sense, the police officer
always causes the trouble.”

Plakas v. Drinski, 19 F.3d 1143, 1148–50 (7th Cir.1994).

Ground 1. The State failed to prove by clear and convincing evidence that
the petitioner Raja is not entitled to immunity under Florida’s Stand
Your Ground law.

Once the defense has shown a prima facie case, “the burden of proof by clear

and convincing evidence is on the party seeking to overcome the immunity from

criminal prosecution provided in subsection (1).” 776.032 (4), Fla. Stat. That is no

easy bar to hurdle. As the Florida Supreme Court held in In Re Hawkins, 151 So.3d

1200, 1212 (Fla.2014), “’This quantum of proof is an intermediate standard, more

than ‘a preponderance of the evidence,’ but less than ‘beyond and to the exclusion

of a reasonable doubt.’ In re Holloway, 832 So.2d 716, 726 (Fla.2002).” After

surveying the caselaw, this Court described what is needed to meet the burden of

proving an issue by clear and convincing evidence and holds:

Our review of the foregoing cases convinces us that a workable definition of

clear and convincing evidence must contain both qualitative and quantitative
standards. We therefore hold that clear and convincing evidence requires that
the evidence must be found to be credible; the facts to which the witnesses
testify must be distinctly remembered; the testimony must be precise and
explicit and the witnesses must be lacking in confusion as to the facts in issue.
The evidence must be of such weight that it produces in the mind of the trier
of fact a firm belief or conviction, without hesitancy, as to the truth of the
allegations sought to be established.

Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Upon review of the

15
trial court’s order and record below, this Court must conclude central findings of

fact are bereft of competent, substantial evidence, and that the trial court committed

reversible legal error in denying relief. This Court should find the state failed to meet

its burden of proof, vacate the trial court’s order, and order dismissal of the charges

based on immunity from prosecution.

a. People in Florida are immune from prosecution when standing their

ground.

“The Legislature enacted section 776.013, Florida Statutes, effective October

1, 2005, to provide for an expanded right of self-defense for individuals. It eliminates

the duty to retreat found under Florida common law.” State v. Smiley, 927 So. 2d

1000 (Fla. 4th DCA 2006). The legislation similarly amended other statutes

governing justifiable use of force in a near-complete erasure of the duty to retreat,

including:

776.012. Use of force in defense of person

A person is justified in using 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 the
other's imminent use of unlawful force. However, a person is justified in the
use of deadly force and does not have a duty to retreat if:

(1) 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; or

(2) Under those circumstances permitted pursuant to s. 776.013.

16
The legislation goes far beyond providing a defense, and immunizes citizens from

civil or criminal prosecution when its requirements are met. As section 776.032,

Fla. Stat. provides: “Immunity from criminal prosecution and civil action for

justifiable use of force

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s.

776.031 is justified in using such force and is immune from criminal
prosecution and civil action for the use of such force . . .” (e.s.).”

b. The State bears the burden of proving lack of immunity by clear and
convincing evidence.

The Florida Supreme Court in Bretherick v. State, 170 So. 3d 766, 768 (Fla.

2015) made “explicit what was implicit in Dennis2 - that the defendant bears the

burden of proof by a preponderance of the evidence at the pretrial evidentiary

hearing.” But in its next session after that decision, the Florida legislature amended

the statute to clarify the burden and standard of proof at the pretrial “Stand Your

Ground” hearing. It added subsection 4 to §776.032, which now provides: “In a

criminal prosecution, once a prima facie claim of self-defense immunity from

criminal prosecution has been raised by the defendant at a pretrial immunity hearing,

the burden of proof by clear and convincing evidence is on the party seeking to

overcome the immunity from criminal prosecution provided in subsection (1).” The

2
Dennis v. State, 51 So. 3d 456 (Fla. 2010)
17
state argues this burden and standard of proof does not apply to this case, but the

trial court correctly rejected that argument. App M, 651-657.

c. In Florida’s Fourth District, police officers are people too.

The state also contends the immunity conferred by sections 776.012 and

776.032 does not apply to police officers such as the petitioner. App. C. The trial

court also rejected this argument, App. M, 666, and correctly so. In State v.

Caamano, 105 So.3d 18 (Fla. 2d DCA 2012), the Second District quashed a circuit

court order requiring an evidentiary hearing for a law enforcement officer who

claimed immunity under section 776.032 for conduct during an arrest. This Court

rejected the reasoning of Camaano in State v. Peraza, 226 So.3d 937 (Fla. 4th DCA

2017) (rev. granted Feb. 1, 2018) Case No. SC17-1978,3 affirming the pretrial

“Stand Your Ground” dismissal of a murder charge against a law enforcement

officer. In doing so, it rejected the state’s argument that the immunity from

prosecution did not apply to law enforcement officers because the statutes refer to

“persons,” which excluded officers. This Court’s Peraza precedent is not only

binding, it is unquestionably correct: “As the circuit court found, “There is nothing

3
The grant of review does not undermine the binding authority of Peraza in this
District. Two of Florida’s precedential pillars dictate “if the district court of the
district in which the trial court is located has decided the issue, the trial court is
bound to follow it. Contrarily, as between District Courts of Appeal, a sister district's
opinion is merely persuasive” and “[t]he decisions of the district courts of appeal
represent the law of Florida unless and until they are overruled by this Court.” Pardo
v. State, 597 So. 2d 665, 666 (Fla. 1992)(cleaned up).
18
in the term ‘a person’ that is unclear or ambiguous. A law enforcement officer under

any reasonable understanding of our language qualifies as ‘a person.’” Peraza, 226

So. 3d at 947.

d. The defense met the burden of presenting evidence to

demonstrate a prima facie case of justifiable use of force, and the
state waived any objection.

Section 776.032 (4), Fla. Stat., provides:

(4) In a criminal prosecution, once a prima facie claim of self-defense

immunity from criminal prosecution has been raised by the defendant at a
pretrial immunity hearing, the burden of proof by clear and convincing
evidence is on the party seeking to overcome the immunity from criminal
prosecution provided in subsection (1).

At the conclusion of the defense case, the state neglected to object, or otherwise

move to test the sufficiency of the prima facie case presented by the defense, so any

such argument is forever waived. In any event, a prima facie case was proved, as the

trial court found. App. M, 667.4

The defense surely met the standard of prima facie proof sufficient to require

a jury instruction on self-defense:

In order to establish a prima facie case of self-defense, a defendant must show

that he (1) was attacked in a place where he had a right to be, (2) was not
engaged in any unlawful activity, and (3) reasonably believed it was necessary

4
As the trial court observed, a conflict among the District Courts of Appeal
developed on the retroactivity of this 2017 amendment. While the Second District
held it retroactive in Martin v. State, No. 2D16–4468, 43 Fla. L. Weekly D1016c, –
–– So.3d ––––, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), the Third District
recently disagreed, and certified the conflict. Love v. State, -- So. 3d --, No. 3D17–
2112, 2018 WL 2169980 (Fla. 3d DCA May 11, 2018).
19
 to use force to prevent death or great bodily harm. See Leasure v. State, 105
So. 3d 5, 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla. Stat. (2008)).

Williams v. State, 2018 WL 1870518 (Fla. Apr. 9, 2018). In that context, as here,

the defendant does not have to testify to make the requisite showing; an out of court

statement introduced into evidence, as well as other circumstances can be sufficient.

Spurgeon v. State, 114 So.3d 1042, 1047 (Fla. 5th DCA 2013); Johnson v. State, 634

So.2d 1144, 1145 (Fla. 4th DCA 1994). The burden thus shifted to the state to prove

by clear and convincing evidence Officer Raja was not entitled to immunity from

prosecution. It did not do so.

e. The Trial Court’s finding that Officer Raja “had his gun drawn
when he jumped out of the car and approached Jones” is not supported
by competent substantial evidence because it is speculative, has no basis
in the record, and conflicts with the evidence in the record.

Based on “common sense,” the trial court determined Officer Raja “had his

gun drawn when he jumped out of the car and approached Jones.” Its reasoning is

quoted in full here for this Court to examine for its lack of support in competent,

substantial evidence:5

5
The mere fact “common sense” might support the drawing of a certain inference
is insufficient to support the inference in cases requiring proof by “clear and
convincing evidence.” For example, in State v. Norris, 168 So. 2d 541, 543 (Fla.
1964), the defendant had been convicted of committing murder by means of
arsenic. The Florida Supreme Court held the trial court committed reversible error
by admitting evidence that two other people who had previously been close to the
defendant (her late husband and her friend) had also been found to have arsenic in
their systems after their death. The trial court had admitted this as “similar act”
evidence, based on the inference that if people close to the defendant had
20
 The Court finds the Defendant’s sworn statement testimony unreliable
and not credible, primarily because his sworn statement during the walk-
through was inconsistent with the physical evidence. Defendant testified
he stated, “police, can I help you?” and Jones immediately drew his gun and
pointed it at Defendant. The roadside assistance call captured some noise or
voice prior to Jones saying “huh;” regardless of what the words were, it is
clear from the call that Jones did not hear Defendant possibly announce
himself as a police officer when Defendant got out of his car. Nowhere else
in the call can Defendant be heard identifying himself as a police officer nor
is there any evidence whatsoever that he ever did. The shell casings found at
the crime scene are also inconsistent with Defendant’s location description
during each volley of shots. The shell casings from the first volley of shots
place Defendant approximately 5-7 feet behind Jones’s car and Jones was
approximately 30 feet behind the car when Defendant first shot at Jones. This
physical evidence indicates that Jones moved away from Defendant, around
and behind his car, before the Defendant fired the shots. Additionally,
although the witnesses were unable to determine when each of the shots were
fired or the order in which Jones received the wounds, two of the three wounds
entered through the back side of Jones, consistent with someone who is
running away from the shooter.

Defendant testified that he saw Jones turn around as if he was pointing the
gun with his right hand to shoot back at him when Defendant fired the second
volley of shots. Jones’s brother testified that Corey was left-handed.
Defendant also testified that he called 911 while chasing Jones, before firing
the second volley of shots. The synced phone call indicates that Defendant did
not place the 911 call until approximately 33 seconds after firing the second
volley. While several witnesses testified that perception distortion could

previously been killed with arsenic, this made it more likely that the most recent
arsenic victim also died at her hands. Id. at 542. The Florida Supreme Court held it
was erroneous to admit such evidence because there was not “clear and convincing
evidence” connecting the defendant to the other crimes. The “inference upon
inference” was improper. Id. at 543. Similarly, in Smith v. State, 743 So. 2d 141,
143 (4th DCA 1999), this Court overturned the conviction because the trial court
erroneously admitted evidence that in the month after this incident, someone tried
to break into the house on four separate occasions. Once again, the common sense
inference that the defendant was attempting to repeat his crime in these later break-
in attempts was insufficient to support admission of this “other crime” evidence by
“clear and convincing evidence.”
21
 cause an inaccurate rendering of a stressful event, Defendant is unable to
choose which of his statements are inaccurate due to perception
distortion and which are accurate for the sake of his argument.

Defendant testified Jones pointed a gun at Defendant as soon as Defendant

announced himself as police, and that Jones’s gun was equipped with a red
laser. While Jones’s gun did not have a laser, the “light reflectivity test”
demonstrated that the traffic lights near the crime scene reflected off Jones’s
gun and could have mimicked a laser. Defendant claims Jones was shot while
pointing his gun at Defendant and this argument is corroborated by both the
“light reflectivity test” and Defendant’s testimony regarding a red light
flickering off the barrel of Jones’s gun. The Court finds the “light reflectivity
test” is not conclusive proof Jones had his gun drawn as Defendant
approached. Defendant’s unreliable testimony is all that supports that
proposition.

On the other hand, Jones is heard calmly on the roadside call saying: “Huh?”
“No, I’m good. Yeah, I’m good,” to which the Defendant replies, “Really?”
and then Jones again calmly says “Yeah.’” The next words that are heard are
the Defendant’s yelling loudly and rapidly: “Get your fuckin’ hands up! Get
your fuckin’ hands up!” Jones replies “hold on, hold on,” and then upon the
Defendant yelling for Jones to get his hands up again, three gunshots are
heard, and then the sound of a bell consistent with a car door bell when it
remains open. The Court finds, and common sense dictates, the evidence
shows the Defendant had his gun drawn when he jumped out of the car
and approached Jones. It was upon seeing the Defendant—in plain
clothes with no indication, understanding, or knowledge that the
Defendant was a police officer, pointing a gun at him—that it was then,
and only then, that Jones pulled out his gun in response. Jones then tried
to run away from the Defendant to the back of his car when the Defendant
fired the first three shots, hence the shell casings found behind the car. No
shell casings from Jones’s gun were ever found, nor was there any evidence
that Jones ever fired his weapon that evening.

App M, 668-70 (emphasis supplied).

This factual finding is the linchpin of the denial of immunity because Officer

Raja could lose his right to self-defense if he was the initial aggressor, and he could

22
only be the initial aggressor if he initiated an assault on Mr. Jones before Mr. Jones

drew his gun. The finding Officer Raja approached Mr. Jones with gun drawn is the

only “fact” supporting an argument that Officer Raja was the initial aggressor. But

it is not a fact at all; it is pure speculation without any support in the record.6

6
See Klemple v. Gagliano, 197 So. 3d 1283, 1286 (Fla. 4th DCA. 2016) (testimony
did “not constitute competent, substantial evidence . . . because it is based on
hearsay and speculation”); Siuda v. State, 114 So. 3d 395, 396–97 (Fla. 4th DCA
2013) (“speculative opinion testimony does not constitute competent, substantial
evidence”); Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1059
(Fla. 4th DCA 2011) (“Speculative testimony is not competent substantial
evidence”); Balboni v. LaRocque, 991 So. 2d 993, 996 (Fla. 4th DCA 2008)
(“[T]he petitioners have failed to rebut the presumption of revocation with
competent substantial evidence and instead have ‘presented no more than the
fabled twins of speculation and conjecture to establish that [the decedent] might
not have revoked his will’”) (internal citations omitted).

Speculative findings of fact are particularly inappropriate when used to

support a ruling governed by a heightened burden of proof, such as “clear and
convincing evidence.” For example, M.C. v. Dep't of Children & Families, 186
So. 3d 74, 80, 81 (Fla. 3d DCA 2016) was a case involving termination of parental
rights. The statute permitted such termination only if the state proved by “clear
and convincing evidence” that the parent had engaged in “egregious conduct.” Id.
at 79. The trial court found the Mother had engaged in “egregious conduct”
because the child had suffered a number of injuries, and the trial court drew the
inference that these had been caused “by the Mother or . . . by someone else while
under the Mother's care.” Id. at 78-79. The appellate court reversed, because other
people sometimes cared for the child, so it was not certain that the Mother caused
the injuries: “We conclude that the trial court's finding that the Mother engaged in
‘egregious conduct’ is based on pure speculation. There is no evidence as to how
the injury occurred or who or what caused the injury . . . . The trial court's finding
that the Department established by clear and convincing evidence that the Mother
engaged in egregious conduct is not supported by competent substantial evidence.”
Id. at 80.
23
 The trial court’s linchpin finding is in error for many reasons, the main one

being no evidence was presented that Officer Raja was the first to draw his gun. In

fact, the state never even made that argument. The trial court’s reasoning that

“Defendant is unable to choose which of his statements are inaccurate due to

perception distortion and which are accurate for the sake of his argument”

misapprehends the nature of the perceptual distortion, described by Dr. Knox as

primarily affecting time and location. App. J, 389; 421-424. Its conclusion also

disregards the fact many of Officer Raja’s statements are independently verified. For

instance, in the 911 call Raja accurately said he “hit him at least three or four times,”

App. J, 163, which means both volleys had already been fired. In his statement Raja

accurately swore Corey Jones had a gun, App. J, 243, 247, 251-52, that Jones’s gun

appeared to have had a laser sight, App. J, 252, that Jones dropped his gun, App. J,

244, that Raja fired two volleys of three shots each, and that he believed he hit Jones.

App. J, 243-44. On the other hand, during the walk-through Officer Raja made clear

he did not know for sure where Corey Jones was when he shot him, App. J, 253 (“I

don’t recall exactly where,” “If I had to say something, I would probably say like in

the – in – in this region right here”). There is thus no real inconsistency upon which

the trial court could lawfully base its rejection of his sworn testimony.

And contrary to the trial court’s conclusion, the objective evidence is

consistent with Officer Raja’s statement, with the exception of a difference of a few

24
feet in the shooting locations and time of his cell phone call to 911. That physical

evidence unquestionably shows Corey Jones was holding a gun, is entirely consistent

with the fact he was pointing that gun at Officer Raja when he was shot in the right

side of his chest, and with Officer Raja’s statement he verbally identified himself as

a police officer before Jones pulled the gun on him. 7 We recount this evidence below.

i. Corey Jones was holding his gun in his hand when Officer Raja
approached him.

As the state’s CSI and others attested, Corey Jones’ gun was recovered at the

scene, a number of yards from his SUV and in the direction consistent with where

his body was found. Def. 6, State 9, see App. M, 665. As expert LaForte testified, it

is unrebutted neither Mr. Raja’s prints nor DNA were on that gun. The matching gun

box could be readily seen in the open glove compartment of Corey Jones’ SUV. As

his brother Clinton testified, Corey Jones had just bought the gun a few days before.

ii. Corey Jones was shot while pointing his gun at Officer Raja.

7
The Florida Supreme Court has held that judicial findings of fact based on
inferences that are inconsistent with the factual record are not based on competent
substantial evidence. For example, in Williams v. State, 37 So. 3d 187, 196 (Fla.
2010), the trial court found the existence of an aggravating factor in a murder case
– namely, that the defendant preplanned the murder because he feared that the
victim would report him for grand theft.The Florida Supreme Court noted that this
finding was inconsistent with testimony that the defendant was on drugs at the time
of the murder, and that the defendant had previously stolen from the victim and she
had continued to live with him and had not turned him in. Because the finding was
“speculative,” Id. at 195, and was inconsistent with the factual record, the court
found that it was not based on “competent, substantial evidence.” Id. at 196.

25
 Though he had not seen Corey Jones’ gun after it was recovered in the light

of day, Officer Raja told investigators it was equipped with a laser which he saw

when Jones pointed it at him. He also was very specific: he saw red lights flickering

or glinting off the barrel of the gun, which he said was the laser sight. 8 When Mr.

Jones’ gun was located, it did not have a laser sight. However, when law enforcement

conducted the videotaped light reflection experiment under conditions similar to

those faced by Officer Raja the evening of the shooting, it clearly established red

lights flickering or glinting off the barrel of the gun. What Officer Raja thought was

a laser was actually the reflection of the red stop-lights behind Officer Raja as he

faced Mr. Jones, who was pointing his gun directly at him. The inescapable fact is

that Mr. Jones pointed his gun at Officer Raja, which was the reason Officer Raja

used deadly force in self-defense. The light reflectivity evidence powerfully

corroborates Officer Raja’s walk-through testimony that Mr. Jones’ gun was pointed

at him, as well as demonstrates he was doing his best to give a truthful account to

the investigators about what happened that morning.

8
And the specificity with which Officer Raja identified the laser goes even beyond
the fact he saw flickering or glinting. Officer Raja specifically described what he
saw as a Laser Max Laser and went on to say the Laser Max laser fits in the guide
rod of the handgun. The exposed end of the guide rod is just below the business
end; the muzzle of the gun. The actual gun did not have an actual laser; therefore,
the only reason Raja makes that descriptive statement about the orientation of the
laser is that he saw it in the place the guide rod would be visible, just below the
muzzle. App. J, 252, 262.
26
 The Trial Court disregarded the corroborative effect of the “light reflectivity

test,” stating that it was “not conclusive proof Jones had his gun drawn as Defendant

approached.” App. M, 670. This is one of several statements showing the Trial Court

reversed the burden of proof. If this really was a “fact” that disqualified Officer Raja

from the immunity provided for by statute, it was the prosecution’s burden to prove

– by clear and convincing evidence – that Officer Raja drew his weapon first, but

the state did not even make that argument.

iii. The ballistics evidence is entirely consistent with Officer Raja’s

recounting of the events.

The ballistics from the casings line up perfectly with the defects in the palm

tree (the first volley-fresh sap visible) and the pine tree, (the second volley-an actual

gun shot strike), showing where Corey Jones was when Officer Raja shot at him. As

the overhead photo, Def. Exhibit 6, shows, the palm tree defects are consistent with

where Officer Raja attested Corey Jones was standing during the first three shot

volley, and the gunshot strike in the pine tree is consistent with Officer Raja’s

statement Corey Jones turned around to aim his gun at him near the sign, where

Jones’ gun was later found in the grass. App. J, 332-345.

iv. Officer Raja verbally identified himself as a law enforcement

officer before Corey Jones pointed his gun at him.

The AT&T recording does not reveal to the naked ear that Officer Raja

verbally identified himself as a police officer while approaching Mr. Jones.

27
However, the physical evidence is entirely consistent with Officer Raja’s testimony

that he did. Corey Jones is plainly responding to a sound when he says “huh?”, as

the first word captured by the recording during the incident. An audio expert, Frank

Piazza, testified to the limitations of cell phone microphones, and that they are

designed to suppress background noise and enhance sounds closest to the

microphone. The syncing of the 911 call with the AT&T/Allied call by Dr. Knox

proves beyond any doubt that at a time before Raja is back inside his van, but after

he passes the open door of the SUV, the cell phone connected to the call center loses

the sound of Raja's voice. App. J, T391-394, 399-403.

This testimony also confirms the cell phone microphone was designed not to

capture Officer Raja’s voice identifying himself as a law enforcement officer while

he was still some distance from it. Piazza was able to enhance the sounds on the

AT&T recording, and his expert opinion, to a 100% certainty, was that there was a

human voice preceding the recorded voice of Mr. Jones saying, “huh?’ on the AT&T

recording. A human voice was spoken by someone other than Corey Jones or the

call center. It was proven to be consistent with Mr. Raja's speech and inconsistent

with Corey Jones or the operator.

The parties stipulated there was a voice or a noise prior to Jones saying “huh”

on the roadside assistance call,” and the trial court found Piazza’s testimony

“credible.” App. M, 659. Nonetheless, the Trial Court declined to find Officer Raja

28
identified himself as a police officer, and found Officer Raja’s supposed failure to

identify himself as a police officer to be a primary basis for finding Officer Raja’s

walk-through statement not credible. App. M, 668-69. Later in the order the trial

court relied on Officer Raja’s supposed failure to identify himself as a police officer

as a key part of its rationale for denying him Stand Your Ground immunity. App. M,

673-74.

The trial court also decided the issue was “moot” based on its assumption Mr.

Jones failed to hear Officer Raja identify himself as a police officer, and also found

Officer Raja did not identify himself. But Officer Raja never claimed Mr. Jones

heard and understood his self-identification; he simply claimed he identified himself.

The question is whether Officer Raja’s conduct was “unreasonable.” A failure by

Officer Raja to identify himself might be relevant to this question; a failure by Mr.

Jones to hear and understand this identification is not.

The trial court’s conclusion Officer Raja failed to identify himself as a police

officer is also another example of the Court’s improper reversal of the burden of

proof. See Ground D. The trial court found Piazza’s testimony credible, so its

conclusion Officer Raja did not identify himself as a police officer because the Court

itself, in listening to the tape, was “unable determine what was said prior to ‘huh?’”,

is in conflict with the credible evidence and must be rejected.

29
 v. Forensic Medical Testimony.

The forensic medical testimony is likewise consistent with Officer Raja’s

testimony Jones was pointing a gun at him when Jones was shot in the chest. Dr.

Juste testified primarily to the distance Mr. Jones could have traversed after having

been shot in the chest, but declined to offer an opinion on the position Mr. Jones was

in at the time he was shot in the right side of his chest. The hypothetical proposed

by the state that the wound to Corey Jones' right side could be consistent with the

shooter running alongside him as he fled is totally inconsistent with the shell casing

analysis that there were two volleys of three shots from two locations. The trial

court’s conclusion that the shots to the arm were from the back, supposedly while

Corey Jones was running away, is just one of many possible hypotheticals, and not

supported by any fact. In addition, Dr. Juste admitted two other Medical Examiners

who had been contacted by the state disputed her claim Mr. Jones could not have

traveled far after the wound to his chest. T --

Dr. Marraccini provided the Court with opinions both as to the distance Mr.

Jones could have traversed after the shot to the chest, as well as opinions on various

physical positions Mr. Jones could have been in when he was shot, especially in the

right side of his chest. Dr. Marraccini demonstrated multiple physical positions

showing how Mr. Jones’ right arm must have been raised when he was shot in the

30
right side of his chest, whether he was aiming his gun at Officer Raja, holding it in

either his right or left hand.

vi. Evidence regarding conduct of Officer Raja the State (and Trial
Court) regard as suspicious has been explained.

The state and the Trial Court point to the fact Officer Raja was recorded

continuing to give directions to Jones after the shooting was over. But it was

perfectly appropriate for Officer Raja to continue to try to direct Mr. Jones, because

it was dark and he could not see him. Def. Ex. 4 (911 call), App. J, 161.

The state and the trial court also point to statements Officer Raja made during

the walk-through which are inconsistent with the physical evidence, in particular his

description of his and Jones’ locations when he discharged his weapon, and Raja’s

statement he made the 911 call in the midst of the shooting. But neither the state nor

the Trial Court mention Officer Raja was tentative during that statement about where

Corey Jones was standing when he shot him, but was pushed to speculate, and only

made the guess while saying “I don’t recall exactly where,” and “If I had to say

something,”…. App. J, 253.

Dr. Knox, a human factors expert, testified to the behavioral effects on people

who have been involved in shootings, and on law enforcement officers in particular.

It is quite common for law enforcement officers to suffer cognitive distortion after

having been involved in a shooting, including primarily time and location

31
distortions. App. J, T421-424. Even the state expert Mr. Libby agreed on this point.

T-- . The plain fact from hundreds of shootings Dr. Knox has been involved in is

that these human factor issues relate to time and location. The 911 call and Raja

thinking the second volley had not yet occurred is explained by Knox's human

factors testimony. In addition, the 911 call shows Raja saying he had already "hit

him 3 or 4 times," App. J, 163, proving he knew he had already fired at least 4 times.

This is a typical, common human factors issue, not lying.

Retired Sergeant Spragg attested to Officer Raja saying Mr. Jones may have

thrown the gun in the tall grass. App. J, 244. During the walk-through Raja said that

Jones dropped it where he fell, which also happens to be in long grass. The abrasions

to Corey Jones' arm are consistent with Raja's walk-through where he said he saw

him fall. App. J, 341. There is asphalt and concrete on the ground between the sign

post and the railing. App. J, 342. There is no other concrete or asphalt anywhere else

that could have caused the scrapes. Officer Arlotta’s impeachment testimony does

suggest Spragg may be confused about what Raja said and to whom he said it. See

App. M, 665-66.

Contrary to the Trial Court’s ruling, the actual evidence supports the

petitioner’s claim of immunity and the state plainly did not prove its absence by clear

and convincing evidence. This Court should vacate with directions to dismiss the

charges against Mr. Raja.

32
 Ground 2. The Trial Court erroneously holds petitioner’s non-
assaultive conduct prior to a deadly encounter defeats his right to
self-defense, and erroneously relies on the decedent’s perspective
in so concluding.

At the persistent urging of the state, the Trial Court committed reversible

errors by creating an unlawful basis for denying immunity: that Officer Raja’s

actions, though not meeting the conditions required to be an “aggressor” under

Florida law, denied him his right to self defense, because those actions gave the

decedent such a right. Both prongs of this legal conclusion are in legal error.

A person who reasonably believes she faces a threat of imminent death or

great bodily harm has the right to use deadly force in self-defense, Fla. Stat. §

776.012(2), unless she provoked the threat by committing an independent forcible

felony or initiating an assault. Fla. Stat. § 776.041; Martinez v. State, 981 So. 2d

449, 452 (Fla. 2008). Non-assaultive conduct prior to the deadly confrontation,

however negligent or wrongful, is not sufficient to deprive a person of the right to

self-defense. The Trial Court ignored both statute and precedent, inventing an

entirely new standard for determining whether pre-confrontation conduct deprives a

defendant of the right to self-defense. It writes:

….Considering the totality of the circumstances, the Court finds that

Defendant’s use of deadly force was not objectively reasonable and not
justified under the law. The manner in which Defendant approached Jones—
in the middle of the night, driving the wrong way up the ramp, in a white
unmarked van, parking head-on diagonal to Jones’s vehicle just feet away,
jumping out of his vehicle, in plain clothes, with his firearm drawn with no
indication he was a police officer—would not afford an ordinary citizen Stand
33
 Your Ground immunity. As elucidated from the roadside call, Jones did not
draw his weapon until after the Defendant jumped out of his vehicle with his
weapon drawn on Jones. In other words, the Defendant’s actions created a
situation where a reasonable person in Jones’s position would think he were
about to be harmed by a person wielding a firearm. If Jones reacted to an
aggressive approach by a stranger brandishing a firearm, not known to be a
police officer, by brandishing his own firearm, he was justified in doing so.

App. M, 673-74.

The Trial Court concludes “Defendant Raja acted unreasonably and not as a

prudent person under the circumstances and the law and therefore, his Motion for

‘Stand Your Ground’ immunity is therefore denied.” App. M, 674. The Trial Court

states Raja lost the right to self-defense independent of whether he was an aggressor

under Florida law, (“Defendant’s actions created a situation….”), then inconsistently

states: “While the ruling of this Court is not based upon the application of section

776.041, [FN] the Court finds that its application would necessitate a finding that

the Defendant is not entitled to immunity pursuant to sections 776.032 and 776.012.”

App. M, 674. Thus, according to the Trial Court, anyone who fails to meet some

unspecified standard of “reasonableness” and “prudence” prior to a deadly

confrontation loses the right of self-defense whether or not he was an aggressor.

This ruling is legally erroneous.9

9
When reviewing the Circuit Court’s legal conclusions, including issues of statutory interpretation,
this Court uses a “de novo” standard of review. See, e.g., Bretherick, 170 So.3d at 771; Peraza,
226 So. 3d at 946; Joseph, 103 So.3d at 229–30.
34
 Under Florida law, the right to use deadly force in self-defense is set forth in

Fla. Stat. § 776.012(2), which says:

A person is justified in using or threatening to use deadly force if he or

she reasonably believes that using or threatening to use 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. A person who
uses or threatens to use deadly force in accordance with this subsection does
not have a duty to retreat and has the right to stand his or her ground if the
person using or threatening to use the deadly force is not engaged in a criminal
activity and is in a place where he or she has a right to be.

This Court has interpreted Section 776.012(2) to mean a person has the right

to use deadly force when he meets three conditions: “[H]e (1) reasonably believed

that using such force was necessary to prevent imminent death or great bodily harm

to himself or to prevent the imminent commission of a forcible felony, (2) was not

engaged in criminal activity, and (3) was in a place he had a right to be.” State v.

Chavers, 230 So. 3d 35, 39 (Fla. 4th DCA 2017).

In the present case, the Trial Court found Officer Raja “was not engaged in

criminal activity at the time of the shooting and he was in a place where he had a

right to be.” App. M, 672. Nonetheless, the Court concluded Officer Raja did not

have the right to use deadly force in self-defense when he saw Mr. Jones point a gun

at him because it considered Officer Raja’s manner of approaching Mr. Jones to be

“unreasonabl[e]” and “not . . . prudent” App. M, 674: “Considering the totality of

the circumstances, the Court finds that Defendant’s use of deadly force was not

objectively reasonable and not justified under the law. The manner in which
35
Defendant approached Jones—in the middle of the night, driving the wrong way up

the ramp, in a white unmarked van, parking head-on diagonal to Jones’s vehicle just

feet away, jumping out of his vehicle, in plain clothes, with his firearm drawn with

no indication he was a police officer—would not afford an ordinary citizen Stand

Your Ground immunity.” App. M, 673.

Several of the “facts” listed in this description of Officer Raja’s pre-conflict

behavior are not supported by the record. As discussed above, there was no factual

basis for the Trial Court’s conclusion that Officer Raja drew his weapon before

getting out of the van to speak with Mr. Jones or that Officer Raja failed to identify

himself as a police officer before the conflict. On these and other issues, the Trial

Court improperly placed the burden of proof on Officer Raja rather than the state.

But even apart from these factual inaccuracies, the Trial Court’s decision

that a person can lose the right to self-defense if he approaches another person in an

“unreasonable” and “not prudent” manner, even if he is not an “aggressor” under

Florida law, is legally incorrect. Section 776.041 of the Florida Statutes defines the

term “aggressor” very specifically:

Use or threatened use of force by aggressor

The justification described in the preceding sections of this chapter is not

available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of,

a forcible felony; or

36
 (2) Initially provokes the use or threatened use of force against himself or
herself, unless:

(a) Such force or threat of 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 or threatened 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 or threatened use of force, but the assailant
continues or resumes the use or threatened use of force.

Fla. Stat. § 776.041

The Trial Court does not find Officer Raja was committing an independent

forcible felony at the time of the shooting. That leaves it with subsection (2) of the

statute, by which immunity is defeated if the shooter “initially provokes” the use of

force. But that subsection cannot apply here either. The Florida Supreme Court has

interpreted the words “initially provoke” in Section 776.041(2) to mean “initiate an

assault.” See Martinez v. State, 981 So. 2d 449, 452 (Fla. 2008). In other words, an

“aggressor” under Florida law is the first person to initiate the physical assault, and

Officer Raja most definitely did not. The Trial Court says it did not apply Section

776.041 (or section 776.051(2)), so its conclusion that immunity was denied because

of its opinion “Defendant’s actions created a situation,” a basis for denying

immunity not in the law, is as legally erroneous a ruling as it gets.

37
 But the Trial Court ventured even further into error, and adopted the state’s

repeated argument, App. J, 148 (“Stand-Your-Ground absolutely exists in this case

and it’s for Corey Jones”), to reject petitioner’s right to immunity based on its

conclusion Officer Raja’s actions gave Mr. Jones the right to use self-defense. The

Trial Court repeatedly rejected immunity for Mr. Raja based on the perspective of

Corey Jones. The Trial Court incorrectly relies upon the decedent’s perspective to

totally dismiss as “moot” the defense evidence showing Officer Raja identified

himself, saying: “Furthermore, any argument regarding whether Defendant

identified himself as a police officer as he approached Jones is moot, since the first

discernible word on the call was Jones saying “huh?” It is common sense that in

saying “huh,” Jones did not hear what was, if anything, specifically said to him that

evening.” App. M, 659.

The Trial Court also adopts that perspective as one basis for rejecting Officer

Raja’s sworn statement, as well as his immunity: “Defendant testified he stated,

‘police, can I help you?’ and Jones immediately drew his gun and pointed it at

Defendant. The roadside assistance call captured some noise or voice prior to Jones

saying ‘huh;’ regardless of what the words were, it is clear from the call that Jones

did not hear Defendant possibly announce himself as a police officer when

Defendant got out of his car.” App. M, 668-69. “It was upon seeing the Defendant—

in plain clothes with no indication, understanding, or knowledge that the Defendant

38
was a police officer, pointing a gun at him—that it was then, and only then, that

Jones pulled out his gun in response.” App. M, 670. “Furthermore, there is no

indication Jones knew the Defendant was a police officer.” App. M, 672.

Florida courts are in agreement that it is improper to view self-defense claims

from the perspective of the complainant. This Court recently catalogued that

caselaw, reversing where a jury was instructed in the improper terms adopted by the

trial court below. The reasoning resonates here:

Florida courts have held that it is error for a trial court to modify the
standard jury instructions and instruct the jury on the victim's right to use
force. See, e.g., Butler v. State, 493 So.2d 451 (Fla. 1986); Mann v. State, 135
So.3d 450 (Fla. 5th DCA 2014).

In Butler, the seminal case on this issue, the Florida Supreme Court
held that giving an instruction on the justifiable use of force in one's home
was reversible error where the alleged crime of attempted murder occurred in
the victim's home and where the victim denied attempting to use force. 493
So.2d at 452–53. There, the trial court gave a modified version of the standard
instruction on the justifiable use of force in one's home by changing the word
“defendant” to “person.” Id. at 452.

On appeal, the Florida Supreme Court found that the instruction (1) was
unrelated to the evidence at trial, and (2) was extremely confusing and
misleading. Id. The court reasoned: “The instruction improperly shifted the
focus of the case from the applicability of the defense of self-defense to the
right of the victim to fight force with force. As a result, the confusing and
misleading instruction virtually negated the defendant's only defense, that of
self-defense.” Id. at 453.

Relying upon Butler, the Fifth District in Mann held that a modified
jury instruction on the victim's right to use non-deadly force in defense of his
property improperly shifted the focus of the case from the applicability of the
defendant's claim of self-defense to the victim's right to use non-deadly force
to protect his wife's cat. 135 So.3d at 455. The court explained that “because
39
 [the victim] was not charged with any offense, his right to act in defense of
his wife's cat is irrelevant.” Id. The court further found that the instruction
“improperly creates a presumption of provocation,” and “might lead a
reasonable jury to conclude that [the victim's] right to use non-deadly force
precluded [the defendant's] right to use deadly force.” Id. 456.

Several other post-Butler cases have reached similar conclusions. See

Hansen v. State, 898 So.2d 201 (Fla. 2d DCA 2005); Desouza v. State, 650
So.2d 170 (Fla. 4th DCA 1995); Mason v. State, 584 So.2d 165 (Fla. 1st DCA
1991). For example, in Mason, the First District explained that an instruction
on the victim's right to use self-defense in the home “was misleading and
confusing since it tended to shift the focus away from the issue of whether the
defendant was justified in the use of force, and to place emphasis on whether
the victim was justified in defending himself—a question which was not at
issue in this case.” 584 So.2d at 167.

Here, the modified jury instruction on Ellis's right to use non-deadly

force was misleading and confusing, because it improperly shifted the focus
of the case from appellant's claim of self-defense to the issue of Ellis's right
to use force. Because Ellis was not charged with any offense, the question of
whether Ellis was legally justified in using force against appellant was not at
issue in this case.[FN] Although we do not comment on the Fifth District's
characterization of the instruction as creating a “presumption of provocation,”
see Mann, 135 So.3d at 456, the instruction was, at a minimum, misleading
and confusing.

Stinckney v. State, 273 So. 3d 1022, 1024-25 (Fla 4th DCA 2018). Thus, the Trial

Court here unlawfully negated Officer Raja’s right to self-defense by adopting the

perspective of the decedent. Its ruling should be vacated and dismissal granted.

Ground 3. The Trial Court erred in relying upon police practices and
irrelevant conduct leading up to the shooting to find the petitioner
was not entitled to immunity. The applicable law requires this Court
to vacate the Trial Court’s order and order dismissal of the charges.

40
 Use of police practices unlawfully creates a higher standard for police officers

to meet to show they acted in self-defense. Yet, ignoring the law, the Trial Court

expressly relied upon such practices to deny Mr. Raja relief. The Trial Court states:

The Court did consider, however, the generally accepted police

practices that Defendant did not follow. Specifically, Defendant did not have
any insignia of police authority such as his tactical vest, badge, radio, or duty
holster on when he approached Jones. Despite receiving clearance to
investigate further from his supervisor, the evidence presented indicates prior
to Defendant’s exit from his vehicle, neither the circumstances of Mr. Jones’s
stranded vehicle nor Mr. Jones’s actions rose to the level of reasonable
suspicion of criminal activity. Further, there had been no complaints nor
reports made about Jones or his vehicle prior to Defendant exiting his vehicle.

There is nothing inherently suspicious about a motorist broken down

on the side of the road.

App. M, 671.

One Court presciently rejected decades ago the state and Trial Court’s

“Officer Raja caused it” theory and state witness Mr. Libby’s lockstep opinion where

in an excessive force case against a law enforcement officer, it correctly observed

that “[o]ther than random attacks, all such cases begin with the decision of a police

officer to do something, to help, to arrest, to inquire. If the officer had decided to do

nothing, then no force would have been used. In this sense, the police officer always

causes the trouble.” Plakas v. Drinski, 19 F.3d 1143, 1148–50 (7th Cir.1994). The

state, primarily through its expert Libby, argue Mr. Raja cannot claim immunity

because he “caused the trouble.” The Trial Court adopted that argument, though, as

41
pointed out repeatedly below, that theory of prosecution of a law enforcement officer

has been thoroughly rejected.

The determination whether Officer Raja was justified in using deadly force

must be evaluated under the constitutional standard of whether his conduct was

objectively reasonable. This Court so holds:

The last question to address is whether the defendant's use of force in this case
was objectively unreasonable. In Brosseau v. Haugen, 543 U.S. [194], 125
S.Ct. 596, 160 L.Ed.2d 583 (2004), the United States Supreme Court found it
objectively reasonable for an officer to shoot a fleeing suspect out of fear [the
suspect] endangered other officers on foot who[m] [the officer] believed were
in the immediate area, the occupied vehicles in [the suspect's] path, and any
other citizens who might be in the area. Recently in Mullenix v. Luna, 577
U.S. ––––, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015), the United States Supreme
Court also noted “the law does not require the officers in a tense and
dangerous situation to wait until the moment a suspect uses a deadly weapon
to act to stop the suspect.” Mullenix, [136 S.Ct. at 311], quoting Long v.
Slaton, 508 F.3d 576[, 581] ( [11th Cir.] 2007). “The court also rejected the
notion that the deputy should have first tried less lethal methods ... ‘we think
the police need not have taken that chance and hoped for the best[.]’ ”
Mullenix, [136 S.Ct. at 311–12], quoting Long v. Slaton, [508 F.3d] at 583.
The arguments advanced in Mullenix, Brosseau, and Long, supra, are no less
compelling than the rationale for the use of force in the present case.

State v. Peraza, 226 So.3d 937, 942 (Fla. 4th DCA 2017) (rev. granted Feb. 1,

2018).

Having concluded the officer was eligible to seek Stand Your Ground

immunity under Sections 776.012(1) and 776.032(1), this Court in Peraza also

approved the constitutionally based substantive standard governing a law

42
enforcement officer’s use of deadly force. The leading United States Supreme Court

cases of Graham v. Connor and Tennessee v. Garner hold that analysis is whether

the officer’s use of force was “objectively unreasonable,” as explained above in

Brosseau, supra, at 197-98.

As the evidence showed, Officer Raja was performing his law enforcement

duties checking on what he thought was an abandoned car. Mr. Jones surprised

Officer Raja by getting out of his vehicle with a gun in his hand. Officer Raja

explained what happened next during the walk-through, discussed in more detail

above. The state and Trial Court nitpick Officer Raja’s actions leading up to the

shooting10, the state arguing and the Trial Court concluding they demonstrate he had

no right to self defense because he supposedly violated “police practices.” The Trial

Court points specifically to Officer Raja’s supposed deficiencies that “Defendant did

not have any insignia of police authority such as his tactical vest, badge, radio, or

duty holster on when he approached Jones,” and “[d]espite receiving clearance to

investigate further from his supervisor,” there was nothing particularly suspicious

10
As argued prior to and at the hearing, the state is legally precluded from relying
on the conduct of a law enforcement officer leading up to the use of force, including
a comparison to “best police practices,” as evidence of “negligence,” or anything
else. App. F, G, H & I. The Court permitted the state to introduce the evidence at the
“Stand your Ground” hearing, saying it would decide later whether it was going to
consider it. The defense continued to object to the state’s reliance on such evidence
at the hearing.

43
about the SUV. App. M, 671.11 While suggesting it would impose the same standard

on a civilian, that is plainly not the case. What civilian could lawfully represent

himself as a police officer?

The State and Trial Court’s novel legal theory that Officer Raja’s actions in

approaching the vehicle, and then Mr. Jones, deprived him of his right to self

defense, is unsupported by any legal authority. There is a plethora of case law

holding that an officer’s actions preceding the moment when the decision was made

to use force are irrelevant.

The state and Trial Court’s second guessing of the practices used by Officer

Raja leading up to the shooting are entirely inconsistent with the law governing this

Court’s decision on whether he is entitled to “Stand Your Ground” immunity. In

fact, courts have consistently held that an officer’s reasonable decision to use force

will not be second-guessed. For instance, in Tanberg v. Sholtis, 401 F.3d 1151, 1162

(10th Cir. 2005), in excluding evidence of standard operating procedure in an

excessive force case, the Court reasoned:

The Trial Court relies on these supposed deficiencies, even though the state
11

expert Libby conceded Raja had to stop his car and get out for officer safety when
Corey Jones got out of his vehicle. T-- . Officer Raja had to immediately get out of
his van and had no time then to put his vest on as it would have endangered him to
do so. T308 (Knox). State witness Officer Garcia also admitted Officer Raja
needed the vest near him, not on, but in this circumstance, he had to just jump out.
T --.
44
 To the extent that the first half of the SOP requires an assessment of an
officer’s choice between various techniques for de-escalation, it is beyond the
scope of the inquiry mandated by state and federal law, which require that an
officer use reasonable, not optimal, force. See Graham v. Connor, 490 U.S.
386, 396–97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“The calculus of
reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary
in a particular situation”).

There is good reason to reject the state’s argument, adopted by the Trial Court,

that Officer Raja should have had his vest on, or for that matter, adopted any of the

myriad “better practices” the state and trial court utilize in hindsight. Those reasons

start with Justice Scalia’s writing in Whren v. United States, 517 U.S. 806 (1996),

holding the Court would not consider such policies or best practices, for two reasons.

First, the practical one: “Indeed, it seems to us somewhat easier to figure out the

intent of an individual officer than to plumb the collective consciousness of law

enforcement in order to determine whether a “reasonable officer” would have been

moved to act upon the traffic violation.” And second, the constitutional one:

“Moreover, police enforcement practices, even if they could be practicably assessed

by a judge, vary from place to place and from time to time. We cannot accept that

the search and seizure protections of the Fourth Amendment are so variable, cf.

Gustafson, supra, at 265, 94 S.Ct., at 491; United States v. Caceres, 440 U.S. 741,

755–756, 99 S.Ct. 1465, 1473–1474, 59 L.Ed.2d 733 (1979), and can be made to

turn upon such trivialities.”

45
 Whren has been followed and found to preclude evidence of police practices

in a number of cases since it was decided. In Vincente v. City of Rome, GA, 2005

WL 6032876 (N.D. Ga. 2005), the opinion of an expert was excluded to the extent

the party sought to present testimony regarding a violation of procedures by an

officer during the time leading up to the use of force. The Court, applying earlier

caselaw, recounts:

A number of courts that have addressed similar issues have

concluded that the applicable authority requires the court “to
focus on the moment force was used; conduct prior to that
moment is not relevant in determining whether an officer used
reasonable force.” Elliott v. Leavitt, 99 F.3d 640, 643-44 (4th
Cir.1996) (concluding issue of whether officer should have
conducted more intensive search before placing decedent in car was
irrelevant to issue of whether officer used excessive force when
officer shot decedent); see also Soller v. Moore, 84 F.3d 964, 968-
69 (7th Cir.1996) (holding evidence concerning police procedures
that governed pre-seizure activity, such as decision of off-duty police
officer to pursue drunk-driving suspect and companion and to
continue pursuit, were not relevant as to issue of reasonableness of
officer’s actions in seizing companion; evidence “has nothing to do
with the key issue of whether the force used after a suspect is
collared is excessive under the circumstances”); Greenidge v.
Ruffin, 927 F.2d 789, 791-92 (4th Cir.1991) (concluding evidence as
to alleged violation of standard police procedure by officer who
failed to employ proper backup or use a flashlight were not relevant
as to issue of whether officer used excessive force when she shot
person in car; actions of officer prior to opening car door and
identifying self to passengers were not probative of reasonableness
of officer’s decision to fire shot). Applying that reasoning, the
Court finds that evidence as to the alleged unreasonableness of
Sergeant Smith’s decision to park his police vehicle in front of
Hector Lopez’s vehicle (and the related argument that Sergeant
Smith created the dangerous situation by placing himself there)
and the alleged unreasonableness of Sergeant Smith’s profane
46
 order to Hector Lopez to stop are not relevant. Further, to the
extent that Plaintiffs argue that this evidence tends to show Sergeant
Smith’s state of mind, the subjective belief or intention of the officer
is irrelevant in an excessive force case. Scott v. Edinburg, 346 F .3d
752, 756 (7th Cir.2003). The Court therefore grants this portion of
Defendants’ Motion to Exclude Expert Testimony of Michael
Cosgrove.

Vincente, slip op. at 19 (e.s.). Accord, Flanagan v. City of Dallas, 2017 WL 2817424

(N.D. Tex 2017) (“For the reasons set forth above, the Court agrees. Officer Staller’s

alleged violation of police procedures leading up to the shooting is not the subject

of admissible testimony. Young, 775 F.2d at 1353”). Officer Raja’s decision to use

deadly force was unquestionably reasonable at the moment it was made.

Yet the state, its expert Mr. Libby, and in turn the Trial Court continue to

second-guess Officer Raja’s pre-shooting conduct. While case after case holds it is

not relevant whether there were better alternatives available, the state stakes its case

on its contention Officer Raja could have used better methods to approach Mr. Jones,

and the Trial Court adopts the argument. This Court should reject the state and Trial

Court’s reliance on the 20/20 hindsight that Officer Raja could have used better

police practices. It should vacate the order and remand to dismiss the Amended

Information.

Ground 4. The Trial Court improperly placed the burden of proof on Officer
Raja to prove the existence of key facts supporting his self-defense claim instead
of requiring the prosecution to disprove such facts by clear and convincing
evidence.

47
 After a prima facie case of self defense is shown, Florida law says “the burden

of proof by clear and convincing evidence is on the party seeking to overcome the

immunity from criminal prosecution provided in subsection (1).” Fla. Stat. §

776.032(4). The Trial Court properly found that Officer Raja raised a prima facie

claim of self-defense immunity, App. M, 667, so the prosecution had the burden to

disprove officer Raja’s self-defense claim by “clear and convincing evidence.”

“Clear and convincing evidence” is a heightened standard of proof that

requires “more proof than a ‘preponderance of the evidence.’” In re Watson, 174 So.

3d 364, 368 (Fla. 2015). To meet that standard, “[t]he evidence must be of such

weight that it produces in the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to be established.” In the

present case, the Trial Court correctly stated the prosecution was required to

disprove Officer Raja’s self-defense claim by clear and convincing evidence, App.

M, 666, but then placed the actual burden of proof on Officer Raja with respect to

the most important facts at issue in this case.

One example of this reversal of the burden of proof was the Trial Court’s

“finding,” based on nothing more than its own speculation, that Officer Raja “had

his gun drawn when he jumped out of the car and approached Jones.” App. M, 670.

As discussed above, this “finding” was made up out of whole cloth.

48
 Reversal of the burden of proof is also apparent from the Trial Court’s

treatment of the corroborative effect of the “light reflectivity test” presented at the

hearing. Raja claims Jones was shot while pointing his gun at petitioner and this

argument is corroborated by both the ‘light reflectivity test’ and Defendant’s

testimony regarding a red light flickering off the barrel of Jones’s gun.” App. M,

669-70. The Trial Court disregarded the corroborative effect of the “light reflectivity

test,” stating it was “not conclusive proof Jones had his gun drawn as Defendant

approached.” App. M, 670. This statement shows that the Trial Court considered it

to be Officer Raja’s burden to prove Jones drew his weapon first. Placing the burden

on Officer Raja to “disprove” this fact was reversible error.

Another example of the Trial Court’s improper reversal of the burden of proof

concerns the question of whether Officer Raja identified himself as a police officer

prior to the deadly encounter with Mr. Jones. In both his 911 call and in his later

walk-through, Officer Raja stated he identified himself as a police officer as he

approached Mr. Jones. Piazza’s forensic audio analysis credibly corroborated this

fact, and the Trial Court found Piazza’s testimony “credible.” App. M, 659.

Nonetheless, the Trial Court refused to find that Officer Raja identified himself as a

police officer, and made his supposed failure to so identify himself a key part of its

rationale for denying him Stand Your Ground immunity:

49
 The manner in which Defendant approached Jones—in the middle of
the night, driving the wrong way up the ramp, in a white unmarked van,
parking head-on diagonal to Jones’s vehicle just feet away, jumping out
of his vehicle, in plain clothes, with his firearm drawn with no
indication he was a police officer—would not afford an ordinary citizen
Stand Your Ground immunity.
App. M, 673 (emphasis added).

As the above-quoted passages make clear, the Trial Court did not simply find

that Mr. Jones failed to hear Officer Raja identify himself as a police officer; it found

that Officer Raja did not identify himself. A failure by Officer Raja to identify

himself might be relevant to this question; a failure by Mr. Jones to hear and

understand this identification is not.

Conclusion.

Wherefore, this Court should vacate the Trial Court’s order denying the

amended motion to dismiss, and remand with an order to dismiss the Amended

Information.

I HEREBY CERTIFY that a true copy hereof has been electronically

provided to BRIAN FERNANDES, ESQ., (bfernandes@sa15.org), Office of the

State Attorney and ADRIENNE ELLIS, ESQ., (aellis@sa15.org), Office of the

State Attorney, 401 North Dixie Highway, West Palm Beach, FL 33401, and to the

Office of the Attorney General, 1515 N. Flagler Drive, Ste. 900, West Palm Beach,

Florida 33401 at crimappwpb@myfloridalegal.com and the Honorable Samantha

50
Schosberg Feuer, Circuit Court Judge, Palm Beach County Courthouse, 205 No.

Dixie Highway, West Palm Beach, Florida, 33401 at Cad-DivisionX@pbcgov.org

on this 20th day of June, 2018.

Respectfully submitted,

RICHARD G. LUBIN, P.A.

707 North Flagler Drive
West Palm Beach, FL 33401
Telephone: 561/655-2040
rich@lubinlaw.com

By: /s/ Richard G. Lubin

RICHARD G. LUBIN, ESQ.
Fla. Bar No. 182249

SCOTT N. RICHARDSON, P.A

1401 Forum Way, Suite 720
West Palm Beach, FL 33401
561-471-9600
561-471-9655 FAX
snr@scottnrichardsonlaw.com

By: /s/ Scott N. Richardson

SCOTT N. RICHARDSON, ESQ.
FLA. BAR NO.: 266515

RALPH E. KING, III

Palm Beach County PBA
2100 North Florida Mango Road
West Palm Beach, FL 33409
Telephone: 561-689-3745
Facsimile: 561-687-0154
rickk@pbcpba.org

By: /s/ Ralph E. King

RALPH E. KING, ESQ.
51
 Fla. Bar No.90473

STEVEN H. MALONE
Fla. Bar No. 305545
707 North Flagler Drive
West Palm Beach, FL 33401
Telephone: 561-805-5805
stevenhmalone@bellsouth.net

By: /s/ Steven H. Malone

STEVEN H. MALONE, ESQ

52