More on Florida Case: DeRossett was Justified in Shooting Deputy

U.S.A. –-(Ammoland.com)- A few days ago, on 15 April, 2020, the Florida 5th District Court of Appeals dismissed charges against retired General Motors worker John DeRossett, who wounded a deputy in a gunfight at his home in 2015. It was at night. The officer at the door was in plain clothes at the time, had no warrant, and was developing a case of solicitation for prostitution on DeRossett’s niece, Mary Ellis. The other two officers were in plain clothes and hid in the dark outside the house.  The officers attempted to take Mary Ellis into custody, at DeRossett’s home.  The officers never identified themselves to DeRossett.

Everyone in the case admits going to the home of an alleged prostitute to make an arrest, after they fail to show up at the motel, where a controlled environment was set up, was highly unusual. From floridatoday.com:

Brevard County agents set up a prostitution sting on Aug. 20, 2015, arranging to meet DeRossett’s niece, Mary Ellis, at a motel where a controlled environment had been set up to conduct an arrest.

When she didn’t show, the three deputies in plain clothes went to her Covina Street home in Port St. John, where Agent Peter Stead grabbed Ellis from the doorway while John “Casey” Smith and Jason Roberts hid in the darkened yard.

During their testimony at the immunity hearing, the deputies said it was unusual to go to a suspect’s home for a sting operation when a controlled environment had already been established.

When she was grabbed, Ellis began screaming for help from her uncle, who was in a back room eating at the time, according to court records.

I wrote about the case in a previous AmmoLand article. Research has unearthed more about the case. I wish to clarify some of the legal and practical issues.

DeRossett knew his niece, Mary Ellis, had engaged in acts of prostitution in his home. He knew she had drug problems. That is why his sister had urged him to provide a place for his niece to stay. DeRossett had no criminal record. He worked as a security guard to supplement his retirement income. He had a concealed carry permit.

After DeRossett was in jail, two Brevard County deputies were dismissed because they were clients of Mary Ellis. Their names were found during the investigation of the case. From clockorlando.com, September, 2015:

TITUSVILLE, Fla. – Two Brevard County deputies are off the job after participating in prostitution, according to the Sheriff’s Office.

“I’m absolutely disgusted by the actions of these two individuals,” Sheriff Wayne Ivey said at a news conference Sunday.

The two now former deputies were clients of Mary Derossett, 42, whose uncle shot Deputy John “Casey” Smith last month in a Port St. John neighborhood, according to Sheriff Ivey.

Sheriff Ivy let slip his bias in the case:

While the findings are a tough pill to swallow for the sheriff, there’s something much more important to him.

“The most important thing for me is that the individual who shot Casey never sets foot on soil unless he’s got bars in front of him,” said Sheriff Ivey.

Sheriff Ivy wanted DeRossett in prison. It does not appear to matter to him whether the shooting was justified or not.

In 2015, Sheriff Ivy was up for re-election in a few months. He was re-elected in 2016, without opposition. He is popular in Brevard County.

This mudracking piece by volusiaexposed.com shows potential bias on the part of Judge Lemonidis:

Prior to Lemonidis being elected to the bench (2014) – she was Michael Dunn’s defense attorney. On November 23, 2012, Michael Dunn shot and killed 17 year old Jordan Davis at a Jacksonville, Florida gas station for allegedly playing his car radio too loud. Dunn would allege that Davis and / or his teenage friends threatened him with a shot gun – this shot gun was never recovered by the police.

According to a November 28, 2012 Huffingtonpost article – Lemonidis attempted to justify her client’s eight gun shots, as being fired merely to scare off Davis and his teenaged companions.

The obvious question is – if Dunn can fire eight shots to scare off the teens – with Lemonidis still holding that her client qualifies for the SYG defense – then how as a judge, can Lemonidis ruled that Mr. Derossett waived his ability to claim an SYG defense – merely due to the fact that he fired ONE warning shot in the air?

Attorneys are hired guns in the legal profession. They are hired to do their best for their client. Just because Lemonidis argued for her client in the Dunn case does not mean she believed the argument in principle.

Volusiaexposed brings up interesting speculation as to why the authorities in Brevard County might want to keep John DeRossett locked up. It is hard to believe he would *not* be allowed out on bail, for five years, when he was a homeowner, a retired autoworker, had no criminal history and was willing to put up a $450,000 bond (from relatives). I have not seen any reason to believe he was a flight risk or a danger to the community.  From Volusiaexposed:

Rumor has it that Mary’s client list may reveal some other interesting clients’ names. Making us wonder why they (BCSO) really invaded the Derossett home in the first place – was it simply to arrest Mary, or was it to recover her list of clients?

There are good reasons to believe DeRossett did not know the men accosting his niece were police officers. The deputies were not in uniform.  The area was dark. His statements, immediately after the shooting, in the hospital, and afterward, were all consistent with the belief unknown men were attempting to kidnap his niece.

It is the responsibility of the police to reasonably make known they are acting officially. It is not the responsibility of citizens to assume anyone claiming to be a police officer *is* a police officer.

If the homeowner does not know a police officer is acting officially, they may legitimately defend themselves against that officer, just as they have the right to defend against any other person. What constitutes reasonable notice that an officer is acting officially, is up to judges and juries.

Prosecutors have accumulated enormous power over the last 50 years. The Supreme Court granted prosecutors absolute immunity for their actions. This has lead to prosecutors abusing their power. A person may be completely innocent, yet suffer enormous punishment, without ever being convicted of a crime.

This is known as punishment by process, or in common police parlance, “you may beat the rap, but you won’t beat the ride”.

Part of the reason the Stand Your Ground law was passed in Florida, was to curb prosecutor abuse of people who legitimately defended themselves, but were punished by the process.

One of those people was Gabriel Mobley in Florida.

Judges were given authority to determine if the case had any merit before the case was brought to trial, to curb punishment by process.  Legislators required a judge to review the evidence, to see if there was a reasonable chance of conviction. If the evidence did not meet the standard of proof of “clear and convincing evidence” to a judge,  it would be unlikely a jury would find the higher standard of proof of “beyond a reasonable doubt”. From politico.com:

Supporters says the legislation, HB 245, which passed on a 23-15 vote, puts the burden of proof where it belongs: on the government.

“If you have been charged with a crime, the burden of proof is on the state,” said state Sen. Greg Steube, R-Sarasota. “We are not shifting the burden of proof, we are putting it where it belongs.”

John DeRossett is a free man today. He was not convicted and sentenced to life in prison for shooting a police officer.

He beat the rap. He did not beat the ride. He spent almost five years of his life in jail, because he shot a police officer in legitimate self-defense. If the person attempting to grab his niece had been a pimp, he would have been hailed as a hero.

DeRossett had no reasonable reason to believe the person who grabbed his niece or the three men who shot at him were police officers.

Why was he held without bail for nearly five years?

One of those primarily responsible for this travesty of justice is former Assistant State Attorney Gary Beatty. He wrote an opinion piece about the case. It was published on 22 April, 2020. He admits the appeals court followed the law correctly when they dismissed the case. From floridatoday.com:

.. the Judges aren’t to blame for the outcome. They were bound by the statute the Legislature enacted.

Yet Beatty was the prosecutor who petitioned Judge Lemonides to keep DeRossett in jail without bond:

After DeRossett’s arrest, when he was in court for his first appearance, the judge granted my request that he be held without bond.

But why? DeRossett does not appear to have been a flight risk. He had been granted bond on 14 December, 2015, in the amount of $450,000, when the judge granted the request of prosecutor Gary Beatty to hold him without bond. Beatty says he requested DeRossett be held without bond at the first appearance, which would have been at the end of 2015 or early in 2016. It probably was before 24 February, 2016, because video footage in court on that day shows DeRossett in custody.

It would be interesting to find a transcript of the hearing to determine what reason was given for withholding bond. If anyone is able to locate it, please let us know. Beatty, in his opinion piece, does not give a reason for his request to have DeRossett held without bond.

The Florida First District Court of Appeal sums up what was shown by the evidence to the trial court for the immunity hearing. This is not my interpretation of the events, but the summation of what happened, by the Florida First District Court of Appeal, based on the voluminous evidence presented over five days to the trial court.  From the First District Court of Appeal order, 7 November, 2019.

WHAT HAPPENED IN THIS CASE— Petitioner, John Derossett, a sixty-five-year-old retired General Motors autoworker, owned a home in Brevard County, Florida. Derossett’s adult niece, Mary Ellis, lived with him in this home. Derossett had no criminal record, worked part-time as a security guard at Port Canaveral, and lawfully possessed a concealed weapons permit. He had also apparently taken a firearms training course.

On August 20, 2015, at approximately 9:30 p.m., Ellis answered a knock on the front door. As she opened the door, a man reached inside the threshold of the house, grabbed her arm, and began pulling Ellis out of the home and onto the covered front porch. Ellis struggled to resist her apparent abduction and screamed to her uncle (Derossett) that she needed help. At this point, two other men approached to physically assist the first man in pulling Ellis off the porch of the home and into the front yard.

Derossett, having heard his niece’s screams for help, hurried from his bedroom to the front porch. He was armed. One of the three men saw Derossett rapidly advancing to the front door with his firearm and announced to the other two men that a man with a gun was approaching. The three men abruptly released Ellis, pushing her towards the front door, and scattered on the front lawn. Derossett immediately came out of his front door and stood under “the canopy part of the porch.”

At this point, Derossett raised his gun, called out to the men, and fired a warning shot up in the air. The three men, now at diverse points on Derossett’s front yard, and likewise armed, immediately shot their respective firearms at him. Derossett fired back. In total, more than forty rounds were exchanged. Despite being fairly close to each other, because it was dark at the time, none of the four men engaged in this incident had a clear view of the others. Derossett and his niece were both struck by gunfire, as was one of the three men in Derossett’s front yard, who was severely wounded in the abdomen.

(As an aside, all four of the people shooting in the gunfight were shooting .40 caliber Glock pistols.  WESH News archive 24 February, 2016. The deputy who was severely wounded was wearing a bullet-resistant vest, which stopped one the bullets.)

The court of appeal found Judge Lemonidis erred when she ruled that DeRossett was not justified in firing the warning shot; the court of appeal found Judge Lemonidis made several errors of fact, in spite of clear evidence to the contrary. First District Court of Appeal order:

 For the following reasons, we conclude that certain factual findings made by the court in its order were not supported by competent substantial evidence and that its legal conclusions were erroneous.

First, the court’s findings that the deputies had neither entered the home nor removed Ellis from the home were not supported by any evidence. The testimony from Ellis and the deputies at the hearing conclusively showed that the first deputy reached into the home and pulled Ellis out and that the deputies thereafter physically engaged with the now-screaming and agitated Ellis on the covered front porch to eventually remove her to the front lawn within seconds of Derossett coming onto his porch with a firearm. No evidence was presented at the hearing that either refutes this sequence of events or suggests otherwise. Therefore, under section 776.013(5)(a) and (b), and directly contrary to the trial court’s factual findings, these actions of the deputies did constitute an entry into Derossett’s dwelling and a removal of Ellis from it.

Second, these unsupported factual findings led the trial court to its legal conclusion that Derossett was not entitled to the statutory presumption under section 776.013(1) of having a reasonable fear of imminent peril of death or great bodily harm to his niece at the time he fired the warning shot. The trial court essentially determined that the imminent threat of Ellis being abducted or kidnapped had dissipated because Ellis and the deputies testified that the deputies had released her and pushed her towards the front door just prior to scattering onto the front yard. Thus, the court found that Derossett’s firing of his warning shot at that precise moment after the deputies had scattered was “completely unprovoked” and, therefore, “unjustified.”

We conclude that the court’s apparent interpretation of subsections 776.013(1)(a) and (b) does not comport with the statute’s plain language. The statute directs a court to presume that a person held a reasonable fear of imminent peril of death or great bodily harm to himself, herself, or another when using deadly force against a person if, among other things, that person had just removed another from the dwelling and the person using the deadly force knew that the abduction had occurred. Here, the three men clearly had just removed Derossett’s niece against her will from his dwelling. Derossett, as the person using the defensive deadly force, knew that this apparently unlawful and forcible act (his niece’s abduction) had just occurred. Thus, under these circumstances, Derossett was statutorily entitled to the presumption of having held a reasonable fear of imminent peril of death or great bodily harm to his niece at the time that he used the defensive deadly force.12 The trial court’s conclusion that Derossett was not entitled to this presumption was incorrect.

The undisputed, rapid events that happened and were happening at Derossett’s home that night did not occur in a vacuum. There was no other evidence presented at this hearing other than that the forcible taking of Ellis from the home had just occurred, and that Derossett knew, or at the very least had reason to know, that it had just occurred. Accordingly, we hold that the trial court’s factual findings were not supported by competent substantial evidence and its legal conclusion was inconsistent with the plain language of the statute. However, for reasons more fully discussed below, we presently withhold the issuance of a writ of prohibition and relinquish jurisdiction to the trial court with directions that the court specifically address at a subsequent hearing whether either of the two exceptions under section 776.013(2)(c) or (d), Florida Statutes (2015), apply to preclude Derossett from being entitled to immunity from prosecution under section 776.032(1) for his otherwise justified use of deadly force.13

The account shows DeRossett was well within his rights to defend himself and his niece when he fired the warning shot and got into the gun battle. The only issue was if the exceptions to Florida Stand Your Ground law applied. The evidence was presented in an immunity hearing before the trial, in front of Judge Lemonidis.

Judge Lemonidis was also in error when she found DeRossett had failed to state a prima facie claim of immunity. From the Court of Appeal:

The trial court also separately found that Derossett failed to state a prima facie claim of immunity. This was erroneous for two reasons. First, after Derossett had presented his evidence for self-defense immunity at the hearing, the trial court in fact found that he had made a prima facie claim for immunity. The State then put on evidence at the hearing to rebut the claim. If Derossett had failed to present a sufficient basis for immunity, the trial court arguably would have denied his motion without the need to receive and consider evidence from the State.

A pertinent question is: Why did Judge Lemonidis make these factual and legal errors? Could it be she was biased against John DeRossett, because the person he shot was a police officer?

The Court of Appeals found the State failed to present clear and convincing evidence, to prove DeRossett knew or should have known, the men who had grabbed his niece were police officers. The case was sent back to the trial court. The trial court now looked at the other potential exception: whether DeRossett was furthering criminal activity because he knew his niece had conducted acts of prostitution in his house.

Judge Lemonidis ruled against DeRossett again, finding his knowledge of illegal acts constituted furthering criminal activity. During this period, DeRossett is still being held in jail without bond. DeRossett appealed this finding to the same Court of Appeal.

DeRossett was released on bond, on 20 March, 2020. On 15 April, 2020, the Court of Appeal again found Judge Lemonidis at the Trial court had erred.

The Court of Appeal then dismissed the charges against John DeRossett, and he was freed.

This is not a case of mere legal technicalities. This case was about the basic right to defend yourself, and whether defending yourself against police will bring harsh penalties, even if the police are in the wrong, and you are within your rights.

The repeated errors of the Trial court, in favor of the prosecution and the police, and against John DeRossett, show a remarkable pattern.

If you are out walking, and find steel tracks laid on wooden ties; you see an engine with a motor running on the tracks; you see the engine hauling cars on wheels on the tracks; you very likely are seeing a railroad.

Prosecutors and judges have great power. They are people. People are fallible. It is often difficult for people to set aside their biases. Justice is supposed to be blind. Prosecutors and judges are to set aside their biases, but they sometimes fail.

From a previous Ammoland article:

In Washington State, if a prosecutor’s office charges an individual, and the individual is found not guilty in a self defense case, the state pays the legal fees of the accused, under RCW 9A.110.

The full text of RCW 9A.16.110 (2) provides:When a person charged with a crime listed in subsection (1) of this section is found not guilty by reason of self-defense, the state of Washington shall reimburse the defendant for all reasonable costs, including loss of time, legal fees incurred, and other expenses involved in his or her defense.

In 2015, the Florida legislature considered whether the State should be liable for legal fees if the defender was found to be immune. That bill did not pass. The Florida legislature should reexamine the issue. They should follow the example of Washington state. The requirement for reimbursement of legal fees, when a defendant is found not guilty in a self-defense case, has worked very well, in Washington state, to rein in prosecutors who have absolute immunity from the Supreme Court.  Such a bill in Florida should include those times the case is dismissed in an immunity hearing.

John DeRossett spent nearly five years in jail, because bond had been denied, even though it had previously been granted. Let us see those transcripts from the hearing which are supposed to justify that ruling. Given the numerous factual and legal errors the trial court made, it may make interesting reading.

It appears Florida residents need more protections from overzealous prosecutors, not less.

 

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About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.