February 22, 2018
A tragic 2010 shooting in Tampa, in which a father was killed in front of his 8-year-old daughter while they were playing basketball, is a line of attack for a Republican candidate for attorney general.
State Rep. Jay Fant, R-Jacksonville, has been sending out news releases with headlines like “Pistols at Dawn” as a way to accuse a primary opponent, former Judge Ashley Moody of Plant City, of being soft on 2nd Amendment rights.
Fant’s salvo against Moody was delivered before the Feb. 14 mass shooting at Marjory Stoneman Douglas High School that left 17 dead, but he hasn’t backed off since
Moody was on the bench in the case of Trevor Dooley of Valrico, then 69, who shot his neighbor David James after the two got into an argument about James allowing a teen skateboarder to use the basketball court.
Dooley was convicted of manslaughter in 2012 and sentenced in January, 2013 to eight years in prison, but was freed on appeal in 2016. Fant contends Moody was unsympathetic to Dooley’s claim of self-defense under the state’s Stand Your Ground law, and that she gave the jury incorrect instructions in the case.
“You rejected Stand Your Ground as a defense for an accused man because he displayed his legally registered weapon before discharging it,” Fant said in a letter to Moody. “You allowed wrong instructions that ignored existing case law and therefore prohibited a ‘stand your ground’ defense.”
Moody responds that Fant is wrong about the law and the history of the case, which she says shows he’s not qualified to be attorney general.
He based his accusations, she said, on an incorrect news story, not on the court decisions in the case.
“You do not understand ‘stand your ground’ as it existed then or now, criminal law, or how to try a case,” she wrote back to Fant. “This is not surprising since you have never actually tried a case, prosecuted anyone, nor really practiced law.”
As a judge, Moody says, she wasn’t reluctant to grant “stand your ground” immunity and did so in another case.
Fant, who along with 70 other House Republicans this week voted to reject the discussion of an assault weapons ban, challenged Moody to debate gun rights March 1 at a gun shop in Tallahassee in a news release titled, “Pistols at Dawn.”
When she declined, he sent another news release titled “You Be the Judge,” asking supporters to sign a petition urging Moody to debate.
The debate “is more important now than ever,” Fant campaign spokeswoman Melissa Stone said following the Parkland shootings.
At issue in the argument are Moody’s decision to deny “stand your ground” immunity to Dooley in a hearing before his 2012 trial, and her instructions to the trial jury about what constitutes legitimate self-defense under the “stand your ground” law.
The key question: Did the law at the time allow someone engaged in illegal activity to claim “stand your ground” defense?
Fant says it did; Moody says it didn’t but acknowledges it does now.
Dooley said he shot James when the much younger, larger man attacked and started choking him.
But three witnesses including the skateboarder said Dooley first showed James the gun, and that James was trying to wrest it away. They said they didn’t see the choking.
In denying immunity, Moody cited the testimony about the fight and the assertion that Dooley flashed the gun, threatening James – a crime under Florida law.
“There was no reasonable belief that deadly force was required,” and criminal activity by Dooley rendered him ineligible for ‘stand your ground’ immunity, she wrote.
When Dooley claimed self-defense in the trial, Moody gave the jury instructions that “If the defendant was not engaged in an unlawful activity,” then he “had the right to stand his ground and meet force with force, including deadly force.”
Moody said the defense didn’t object to the jury instructions, which were proposed by the prosecution.
The prosecution argued that by flashing the gun, he was engaging in unlawful activity and therefore not legitimately defending himself.
But in 2013, after Dooley’s sentencing, the Second District Court of Appeal ruled in a different case that someone engaging in unlawful activity could still claim Stand Your Ground immunity.
“The law changed after trial,” Moody wrote in her response to Fant.
At least one Florida appeals court had previously ruled that a convicted felon with a gun couldn’t claim Stand Your Ground immunity because the felon would be breaking the law by having a gun.
Then-state Rep. Dennis Baxley, R-Ocala, now a senator and the author of the 2005 law, objected to the 2nd DCA’s 2013 decision.
“‘Stand your ground’ was written for law-abiding citizens,” Baxley told the Gainesville Sun at the time. “I think it’s perfectly clear that this doesn’t apply if you’re doing something illegal.”
In 2016, the 2nd DCA granted Dooley a new appeal and allowed him to be released on bail.
In that decision, the justices cited jury instructions it said were “erroneous” based on their own 2013 decision. They also cited Dooley’s lawyer’s contention that some parts of the Stand Your Ground law allowed the defense for people engaged in criminal activity.
In his challenge to Moody, Fant cited a Tampa Bay Times news story on the appeal decision that said the appeals court cited case law existing before the trial that criminal activity doesn’t affect “stand your ground” immunity.
But Moody said the story was wrong, and that Fant was basing his accusation on an incorrect news story. Fant’s campaign couldn’t point to that previous case law.
Tampa criminal law expert John Fitzgibbons, a Democrat, said he believes Moody’s jury instructions “were absolutely accurate and correct at the time,” but added, “This just illustrates the absolute nightmare it has been for judges lawyers and prosecutors to try to interpret the ‘stand your ground’ law. It’s been a mess.”
Two other Republicans, state Reps. Ross Spano of Dover and Frank White of Pensacola, are running the attorney general primary.
White and Fant have both attacked Moody, questioning her conservative credentials and her commitment to gun rights. Moody says she is a strong 2nd Amendment defender.