Cassanova Gabriel v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

CASSANOVA GABRIEL,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

No. 4D2024-1502

[October 16, 2024]

Petition for writ of certiorari to the Circuit Court for the Fifteenth

Judicial Circuit, Palm Beach County; Scott Suskauer, Judge; L.T. Case

No. 50-2023-CF-000714.

Carey Haughwout, Public Defender, and Robert Porter, Assistant Public

Defender, West Palm Beach, for petitioner.

Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,

Senior Assistant Attorney General, West Palm Beach, for respondent.

CONNER, J.

Petitioner Cassanova Gabriel seeks a writ of certiorari quashing the

order striking his motion to dismiss. The motion to dismiss asserted Stand

Your Ground (SYG) immunity from prosecution for the crimes of cruelty to

animals while in possession of a firearm, discharging a firearm in public,

and discharging a firearm in a residential area. Because the trial court

departed from the essential requirements of law in its interpretation of the

scope of immunity granted by section 776.032(1), Florida Statutes (2022),

the petitioner suffered irreparable harm when the trial court deprived him

of his procedural right to a hearing to determine whether he is entitled to

SYG immunity. As a result, we quash the order striking the petitioner’s

motion to dismiss and remand for further proceedings.

Background

The petitioner was walking his small dog when a large pit bulldog came

around the corner of a building. The pit bull allegedly made threatening

sounds and moved toward the petitioner and his dog. The petitioner tried

to kick the pit bull away, which caused the pit bull to become even more

aggressive. The petitioner then tried to scare the pit bull away by firing

warning shots with a gun over the pit bull’s head, but allegedly the pit bull

continued to attack, pinning the petitioner and his dog into a corner.

Allegedly perceiving no other choice, the petitioner shot and killed the pit

bull.

The pit bull’s owner, who had been walking the pit bull without a leash,

came around the corner of the building and asked what happened. The

petitioner gave his version of the events to the pit bull’s owner and then

left.

After the state filed charges, the petitioner moved to dismiss the

prosecution based on immunity under section 776.012(2), Florida Statutes

(2022) (providing for the justifiable use of deadly force in defense of

person), and section 776.032(1), Florida Statutes (2022) (providing for

immunity from prosecution when force is used as permitted by section

776.012). The petitioner sought an evidentiary hearing.

The state opposed the petitioner’s attempt to assert SYG immunity from

prosecution, arguing that the statutory language authorizes deadly force

only by a person against another person and does not apply to the use of

deadly force against an animal.

After hearing argument from both sides, the trial court agreed with the

state and struck the motion to dismiss, concluding that immunity from

prosecution pursuant to section 776.032 does not apply to a person who

has used deadly force against an animal, but instead “is applicable only in

cases involving person to person interactions.”

The petitioner timely sought certiorari review of the trial court’s denial

of his request for a hearing on his SYG immunity claim.

Certiorari Analysis

A petition for writ of certiorari is the proper vehicle to seek appellate

relief from an order striking a motion to dismiss asserting immunity under

section 776.032. See Acostafigueroa v. State, 373 So. 3d 908, 910 (Fla.

4th DCA 2023) (noting certiorari relief is appropriate when “the trial court’s

ruling is flawed by legal error thereby precluding [a] proper determination

on the movant’s immunity claim” (quoting Jimenez v. State, 353 So. 3d

1286, 1287 (Fla. 2d DCA 2023))). As our sister court has explained:

2

Generally, Florida’s appellate courts are called upon to review

orders denying a defendant’s SYG motion via a petition for writ

of prohibition, rather than certiorari. Where, however, the

trial court does not reach the merits of an SYG motion due to

an alleged misapplication of the SYG statutes or Florida Rule

of Criminal Procedure 3.190 (the procedural rule governing

SYG motions), Florida’s appellate courts have employed

certiorari review of the order.

Maslo v. State, 390 So. 3d 720, 722 n.2 (Fla. 3d DCA 2024) (collecting

cases).

When interpreting a statute, judges must consider ‘“all the textual and

structural clues’ that bear on the meaning of a disputed text.” Conage v.

United States, 346 So. 3d 594, 598 (Fla. 2022) (quoting Alachua County v.

Watson, 333 So. 3d 162, 169 (Fla. 2022)). Additionally, “[t]he plainness or

ambiguity of statutory language is determined by reference to the language

itself, the specific context in which that language is used, and the broader

context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,

341 (1997).

We first consider the language of section 776.012, authorizing the use

or threatened use of force in defense of person:

(1) A person is justified in using or threatening to use 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. A person who uses or

threatens to use force in accordance with this subsection does

not have a duty to retreat before using or threatening to use

such force.

(2) 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.

3

§ 776.012, Fla. Stat. (2022) (emphasis added).

Section 776.012’s plain text distinguishes the authorizations for the

use of nondeadly and deadly force in defense of person. Nondeadly force

in defense of person is authorized when used against “another” to defend

“against the other’s imminent use of unlawful force.” § 776.012(1), Fla.

Stat. (2022). Deadly force in defense of person is authorized when

“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.” § 776.012(2), Fla. Stat. (2022). As can be seen from section

776.012’s plain text, deadly force, in contrast to nondeadly force, does not

include language that the force must always be used against a person.

Thus, we conclude that section 776.012(2) authorizes deadly force against

an animal when the person using or threatening to use the force “believes

such force is necessary to prevent imminent death or great bodily harm to

himself or herself or another.” 1

The petitioner’s motion to dismiss travels on the authorization of deadly

(not nondeadly) force in defense of person, specifically under section

776.012(2)’s use of the phrase “necessary to prevent imminent death or

great bodily harm to himself or herself or another.” Thus, we agree that

section 776.012(2)’s plain, unambiguous text does not require that the

deadly force be used against a person, rather than against an animal. And

we will not add words limiting section 776.012(2)’s application to force

solely against persons and not animals. See Fagan v. Jackson Cnty. Hosp.

Dist., 379 So. 3d 1213, 1215 (Fla. 1st DCA 2024) (“We are not at liberty to

add words to statutes that were not placed there by the Legislature.”

(quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))).

Section 776.032(1), which grants immunity from criminal and civil

actions for authorized uses of force, does not change this result. It

provides:

A person who uses or threatens to use force as permitted in s.

776.012 . . . is justified in such conduct and is immune from

criminal prosecution and civil action for the use or threatened

use of such force by the person, personal representative, or

1 The trial court reasoned that, in the context of deadly force being used to prevent

a forcible felony under section 776.012(2), an animal cannot commit a forcible

felony. However, we can envision situations in which a dog could be used by an

assailant to commit a forcible felony.

4

heirs of the person against whom the force was used or

threatened . . . .

§ 776.032(1), Fla. Stat. (2022) (emphasis added). 2

The state argues this provision necessarily excludes immunity for

deadly force used against an animal because it only covers claims by or on

behalf of the “person against whom the force was used.” Id. (emphasis

added). The trial court agreed with the state’s reasoning. However, the

reasoning is flawed.

The primary flaw with this reasoning is that section 776.032(1) frames

entitlement to immunity with reference to who brings the action. Thus,

the words, “immune from . . . civil action for the use or threatened use of

such force by the person, personal representative, or heirs of the person

against whom the force was used or threatened” clearly means that a

defendant in a civil action is immune from civil prosecution by the

plaintiff/decedent if the defendant used or threatened to use force

permitted under section 776.012 against the plaintiff/decedent. In other

words, “by the person, personal representative, or heirs” clearly and

unambiguously apply to the status of a plaintiff in civil actions alone,

thereby limiting immunity to the use of force against another person, but

such limitation does not apply to a criminal prosecution.

Because entitlement to immunity is framed from the perspective of who

brings the action, immunity as to criminal prosecutions could not be

limited to force used or threatened to be used against a person, as the

state contends, because section 776.032(1) does not limit immunity in

criminal prosecutions in the same manner as civil actions. A criminal

prosecution is always brought by the state, and alleged victims and their

agents do not make unilateral prosecutorial decisions. Because a criminal

prosecution is never initiated by a “person, personal representative, or

heirs of the person,” no portion of this language could ever modify

“criminal prosecution.” If the legislature intended such a result, it would

have written: “A person . . . is immune from criminal prosecution and civil

action for the use or threatened use of such force by the defendant against

2 We acknowledge that additional statutory language, namely in sections 776.013

and 776.031, Florida Statutes (2022), appears to authorize the use of force in

other contexts involving force against another person, rather than against an

animal. These statutes do not apply here, and we note that the legislature has

the prerogative to determine the various circumstances in which the use of force

is authorized, in addition to authorizations under the common law.

5

the victim, person, personal representative, or heirs of the person against

whom the force was used or threatened . . . .” Thus, from the specific

context of the words used in section 776.032(1), we conclude the

legislature was clear that immunity from a criminal prosecution is not

limited to the use of force against a person. 3

Even if we were to determine section 776.032(1) to be ambiguous as to

whether immunity applies to deadly force against an animal, we would still

conclude the trial court erred in its interpretation for failure to apply the

rule of lenity. See Key v. State, 296 So. 3d 469, 471 (Fla. 4th DCA 2020)

(“The rule requires that ‘[a]ny ambiguity or situations in which statutory

language is susceptible to differing constructions must be resolved in favor

of the person charged with an offense.’” (quoting State v. Byars, 823 So.

2d 740, 742 (Fla. 2002))).

Conclusion

We conclude as a matter of law, based on section 776.012(2)’s and

section 776.032(1)’s plain meaning and context, a person is immune from

criminal prosecution for the use of deadly force against an animal where

the person has a reasonable belief that such force is necessary to prevent

imminent death or great bodily harm to himself or herself or another.

Having determined the trial court misinterpreted the statutory language

and departed from the essential requirements of law, we grant the petition,

quash the order striking the petitioner’s motion to dismiss, and remand

for further proceedings consistent with this opinion. 4

Petition granted.

DAMOORGIAN, J., concurs.

ARTAU, J., concurs specially with opinion.

ARTAU, J., concurring specially.

I concur with the result reached by the majority but write separately to

explain my disagreement with its statutory interpretation analysis.

3We do not address the reach of section 776.032(1) immunity from civil actions

regarding use of force against an animal, as that issue is not before us.

4 We recognize our opinion may make criminal prosecutions for animal cruelty

more challening for the state when a defendant claims self-defense under section

776.012(2). However, it is up to the legislature to address the issue as it sees fit.

6

Even though the majority recognizes that we must “exhaust ‘all the

textual and structural clues’ that bear on the meaning of a disputed text”

with “the aid of whatever canons might shed light on the interpretive issues

in dispute[,]” it fails to adequately apply this principle. Conage v. United

States, 346 So. 3d 594, 598 (Fla. 2022) (emphasis added) (quoting Alachua

Cnty. v. Watson, 333 So. 3d 162, 169 (Fla. 2022)). Rather than exhausting

other applicable interpretive canons, the majority skips over this

requirement to unnecessarily apply the rule of lenity. However, as our

supreme court explained in Conage, “some canons, like the rule of lenity,

by their own terms come into play only after other interpretive tools have

been exhausted.” Id. (emphasis added).

Instead of applying the rule of lenity, the majority should have applied

the rule of the last antecedent. Writing for a unanimous Supreme Court

in Barnhart v. Thomas, Justice Scalia explained that “the grammatical ‘rule

of the last antecedent,’” as a canon of statutory interpretation, provides

that “a limiting clause or phrase . . . should ordinarily be read as modifying

only the noun or phrase that it immediately follows.” 540 U.S. 20, 26

(2003) (emphasis added). Our supreme court has also adopted the rule of

the last antecedent as a traditional canon of statutory construction. See,

e.g., Kasischke v. State, 991 So. 2d 803, 811 (Fla. 2008) (“One such canon

is the doctrine of the last antecedent, under which ‘relative and qualifying

words, phrases and clauses are to be applied to the words or phrase

immediately preceding, and are not to be construed as extending to, or

including, others more remote.’” (quoting City of St. Petersburg v.

Nasworthy, 751 So. 2d 772, 774 (Fla. 1st DCA 2000))).

“While this rule is not an absolute and can assuredly be overcome by

other indicia of meaning, . . . construing a statute in accord with the rule

is ‘quite sensible as a matter of grammar.’” Barnhart, 540 U.S. at 26

(quoting Nobelman v. Am. Sav. Bank, 508 U.S. 324, 330 (1993)). Indeed,

the rule of the last antecedent is a traditional, time-honored canon of

statutory construction that has been applied “from our earliest decisions

to our most recent.” Lockhart v. United States, 577 U.S. 347, 351 (2016).

The Stand Your Ground statutory provision in dispute provides that

“[a] person who uses or threatens to use force as permitted in s.

776.012 . . . is justified in such conduct and is immune from criminal

prosecution and civil action for the use or threatened use of such force by

the person, personal representative, or heirs of the person against whom the

force was used or threatened,” except in circumstances not applicable

here. § 776.032(1), Fla. Stat. (2022) (emphasis added).

7

Applied here, the rule of the last antecedent instructs us that the

phrase—“for the use or threatened use of such force by the person,

personal representative, or heirs of the person against whom the force was

used or threatened”—applies only to its last antecedent—“civil action”—

rather than the more remote antecedent—“criminal prosecution”—

because the phrase immediately follows the term “civil action.”

The absence of commas setting off the phrase from the terms “criminal

prosecution” and “civil action” serves as additional evidence that the

phrase applies only to its immediately preceding antecedent (i.e., the

phrase’s last antecedent—“civil action”). See Kasischke, 991 So. 2d at

812-13 (“Evidence that a qualifying phrase is supposed to apply to all

antecedents instead of only to the immediately preceding one may be found

in the fact that it is separated from the antecedents by a comma.” (quoting

2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory

Construction § 47.33 (7th ed. 2007))); see also Fettig’s Constr., Inc. v.

Paradise Props. & Interiors LLC, 305 So. 3d 555, 560 (Fla. 4th DCA 2020)

(applying the rule of the last antecedent because “a qualifying phrase is

read as limited to the last item in a series when the phrase follows that

item without a comma” (quoting Jacques v. Dep’t of Bus. & Pro. Regul., Div.

of Pari-Mutuel Wagering, 15 So. 3d 793, 796 (Fla. 1st DCA 2009))).

Furthermore, interpreting the phrase here in accordance with the rule

of the last antecedent is consistent with how the phrase is used in the

context of section 776.032(1) because, as the majority notes, the phrase

makes Stand Your Ground immunity available based on who brings an

action. Thus, because only the State—and not “the person, personal

representative, or heirs of the person against whom force was used”—can

bring a “criminal prosecution,” the phrase necessarily modifies only its last

antecedent since it is a listing limited to parties who could only bring a

“civil action.”

The majority hypothetically suggests that if the Legislature intended

the interpretation argued by the State, the Legislature would have revised

section 776.032(1) to say: “A person . . . is immune from criminal

prosecution and civil action for the use or threatened use of such force by

the defendant against the victim, person, personal representative, or heirs

of the person against whom the force was used or threatened[.]” (emphasis

added).

However, applying the rule of the last antecedent to the majority’s

hypothetical revision of section 776.032(1) would not result in any

interpretation that would meaningfully differ from our interpretation here.

In other words, the justifiable “use or threatened use of such force” against

8

an animal in the hypothetical revision would also be immunized from

“criminal prosecution” because the modifying phrase still follows its last

antecedent—“civil action”—and is not set off by commas.

Moreover, even if the Legislature had included the word “victim,” as the

majority hypothetically suggests, the modifying phrase would still not

necessarily apply to the more remote antecedent—“criminal prosecution.”

While a “victim” can be “[a] person harmed by a crime, [a victim can also

be a person harmed by a] tort, or other wrong.” See Victim, Black’s Law

Dictionary (12th ed. 2024) (emphasis added). The noscitur a sociis canon

provides that “words grouped in a list should be given related meanings.”

Antonin Scalia & Brian Garner, Reading Law: The Interpretation of Legal

Texts § 31, p. 195 (2012). “While ‘not an inescapable rule,’ this canon ‘is

often wisely applied where a word is capable of many meanings in order to

avoid the giving of unintended breadth to [statutes].’” McDonnell v. United

States, 579 U.S. 550, 569 (2016) (quoting Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961)).

Thus, the inclusion of the word “victim” among a list of parties who

could bring a “civil action” would contextually be interpreted as referring

to a “victim” of a tort who could bring a “civil action” for damage inflicted

by the use of force rather than as the victim of a crime because the canon

of noscitur a sociis informs us that we should interpret it consistent with

the context of the associated words that bear on one another’s meaning.

See Fischer v. United States, 603 U.S. ----, 144 S. Ct. 2176, 2183-84 (2024)

(“[T]he canon of noscitur a sociis teaches that a word is ‘given more precise

content by the neighboring words with which it is associated[]’ [to] ‘avoid[]

ascribing to one word a meaning so broad that it is inconsistent with’ ‘the

company it keeps.’” (internal citation omitted) (first quoting United States

v. Williams, 553 U.S. 285, 294 (2008); and then quoting Gustafson v.

Alloyd Co., 513 U.S. 561, 575 (1995))); see also State v. Weeks, 202 So. 3d

1, 8 (Fla. 2016) (The noscitur a sociis canon “instructs that ‘a word is

known by the company it keeps.’” (quoting Nehme v. Smithkline Beecham

Clinical Labs., Inc., 863 So. 2d 201, 205 (Fla. 2003))).

Regardless of how we should interpret a hypothetical statute, the

majority fails to address the rule of the last antecedent and instead

employs the rule of lenity to discern the meaning of the actual statute in

dispute. However, the rule of lenity is “a canon of last resort.” Paul v.

State, 129 So. 3d 1058, 1064 (Fla. 2013) (citing Kasischke, 991 So. 2d at

814).

As our supreme court explained in Conage, “[t]hrough section

775.021(1), Florida Statutes, the Legislature has elevated lenity from a

9

canon of construction to a statutory command.” 346 So. 3d at 602. But

“[i]n Florida, the rule of lenity is a default rule that comes into play at the

end of the interpretative process” only “if the statute remains ambiguous

after consulting traditional canons of statutory construction.” Id. at 603

(quoting Paul, 129 So. 3d at 1064); see also § 775.021(1), Fla. Stat. (2022)

(“[W]hen the language is susceptible of differing constructions, it shall be

construed most favorably to the accused.” (emphasis added)). In other

words, the rule of lenity should not be employed unless a statute remains

ambiguous after all other traditional canons of construction have been

exhausted.

In fact, in a similar case where applying the rule of the last antecedent

resulted in a logical construction of a federal statute, the Supreme Court

of the United States explained that it would be improper to employ the rule

of lenity to come to a different construction because the lenity canon

should be applied only as a last resort. See Lockhart, 577 U.S. at 361 (“We

have used the lenity principle to resolve ambiguity in favor of the defendant

only ‘at the end of the process of construing what Congress has expressed’

when the ordinary canons of statutory construction have revealed no

satisfactory construction.” (emphasis added) (quoting Callanan v. United

States, 364 U.S. 587, 596 (1961))). Instead, the Supreme Court concluded

that where “the rule of the last antecedent is well supported by context

and [the] alternative is not[,] [w]e will not apply the rule of lenity to override

a sensible grammatical principle buttressed by the statute’s text and

structure.” Id. at 361 (emphasis added).

Likewise, in my view, we should not resort to the rule of lenity here

where the traditional rule of the last antecedent provides a “sensible

grammatical principle buttressed by the statute’s text and structure”

supporting a logical construction that does not otherwise differ from the

construction arrived at by the majority. See id.

Nonetheless, I agree with the majority’s conclusion that the defendant

presented a prima facie claim for Stand Your Ground immunity, thereby

entitling him to an immunity hearing. See § 776.032(4), Fla. Stat. (2022)

(“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)[—i.e., the State].”). 5

5 While noting “that there is additional statutory language, namely in sections

776.013 and 776.031, Florida Statutes (2022), that appears to authorize the use

of force in other contexts involving force against another person, rather than

10

However, while I come to the same conclusion as the majority, I do so

for different reasons, consistent with the principles enunciated by our

supreme court in Conage, with due regard to the rule of the last antecedent

as a “textual and structural clue that bear[s] on the meaning of” section

776.032(1). See 346 So. 3d at 598.

* * *

Not final until disposition of timely filed motion for rehearing.

against an animal[,]” the majority acknowledges that an animal could be used in

the commission of a forcible felony. Because those statutory provisions could

otherwise be invoked to justify the use or threatened use of deadly force to prevent

the commission of a forcible felony, they also provide Stand Your Ground

immunity when such force is necessary against an animal involved in the

commission of a forcible felony. Moreover, whenever the use or threatened use

of deadly force is justified, anything less would also be justified because “the legal

question to be resolved in all [Stand Your Ground] cases is whether ‘a reasonable

and prudent person in the same position as the defendant would believe’ that the

level of authorized force used was ‘necessary’ to prevent the harm or offense for

which such force is statutorily permitted.” See Paese v. State, 381 So. 3d 4, 12

(Fla. 4th DCA 2024) (emphasis added) (quoting Bouie v. State, 292 So. 3d 471,

481 (Fla. 2d DCA 2020)). In other words, if the use or threatened use of deadly

force is justified, any action or threat short of deadly force would also be justified

if used to prevent the harm or offense for which the use or threatened use of

deadly force would be justified.

11