HOW IS DOMESTIC VIOLENCE DEFINED IN FLORIDA?

Pursuant to the Florida Statutes for 2016, domestic violence is defined as follows:

741.28 Domestic violence; definitions.—As used in ss. 741.28741.31:

(1) “Department” means the Florida Department of Law Enforcement.

(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

(4) “Law enforcement officer” means any person who is elected, appointed, or employed by any municipality or the state or any political subdivision thereof who meets the minimum qualifications established in s. 943.13 and is certified as a law enforcement officer under s. 943.1395.

WHAT DEFENSES ARE AVAILABLE TO ME TO FIGHT THE CHARGES?

While it depends on the circumstances and every case has different facts, here are some examples of defenses:

  • accidental injuries: no harm was ever intended
  • self-defense: you were not the one to initiate or instigate a physical confrontation and you were attacked or threatened first
  • self-inflicted injuries: the alleged victim harmed himself/herself and is falsely blaming you
  • allegations are falsely made: motivations to lie include but are not limited to family court matters, child custody battles, money dispute, revenge or anger, pending divorce, threats to abandon the relationship, claims of infidelity

WHAT EVIDENCE CAN BE USED TO PROVE A DOMESTIC VIOLENCE CRIME?

It depends on the charge and what the State of Florida has to prove according to the jury instructions, but generally, some types of evidence that may be used are:

  • 911 audio recording
  • police testimony based on their recollection from their reports
  • body camera footage
  • eyewitness testimony
  • alleged victim testimony
  • photographs
  • medical reports about injuries
  • statements made by the accused

WHAT IS A WAIVER OF PROSECUTION AND HOW MUCH WEIGHT DOES IT HAVE?

An alleged victim who has expressed a desire not to go forward as a witness in the case can sign a waiver of prosecution.  A waiver of prosecution doesn’t guarantee the case against you will be dropped, but it demonstrates to the State Attorney’s Office that they may have a witness problem if the case proceeds to trial.  It becomes a weakness in their case. However, depending on what is written in the waiver, this can help or hurt you.  Sometimes alleged victims think they are helping you out by saying something like, “It only happened once, everything is fine now.  I don’t want her to go to jail.”  This is not helpful because it doesn’t say the incident didn’t happen.  In fact, it kinda says the opposite.  And it’s not saying the person accused didn’t do anything wrong, it’s just saying the alleged victim doesn’t want to see that person go to jail.

WHAT WILL POLICE DO ONCE DISPATCHED BY 911?

The policies of law enforcement agencies differ, but generally, police are trained to take domestic violence calls seriously and with precaution so officers may arrive to the location of an incident with heightened suspicions and concerns for the safety of themselves and those involved on scene. They will usually separate the parties, ask who was involved, and confirm who called 911.  Thereafter, they will try to do a preliminary investigation to determine whether there is probable cause to arrest someone.  They can make this determination by gathering statements from witnesses and the alleged victim.  Depending on the agency, some officers make it clear that someone is going to jail, even if the alleged victim says he or she does not want to press charges or that everything is fine.  If there are injuries alleged, they may take photographs, have the person with injuries evaluated by EMS, or transport such person to the hospital.

WHAT WILL D. CARR LAW DO FOR ME IF I HIRE THEM?

Aside from our Menu of Services which details the professional relationship and legal work D. CARR LAW will conduct throughout the litigation process, D. CARR LAW also promises to:

  • Listen to your story, understand your goals and work tirelessly to protect your future
  • Research whether the police violated any of your constitutionally protected rights
  • Fight for the dismissal of charges
  • Establish any defenses you may have
  • Determine if and why false accusations were made against you
  • When appropriate, fight for the reduction of charges
  • Minimize the impact being arrested and charged ultimately has on your finances, personal relationships, and professional goals

NFL’s Personal Conduct Policy is Beyond a Reasonable Doubt

The NFL has a higher standard for player conduct and law enforcement agencies can learn from the NFL’s policies.

In light of the recent decision by the NFL to suspend Ezekiel Elliott for unprosecuted conduct allegedly implicating his participation as a domestic violence abuser, it would behoove all of us to ask some critical questions and pose necessary dialogue.

Here’s an employee of the NFL, suspended for 6 games because it wasn’t enough for his employer that he somehow “avoided” being found guilty of a crime.  He was suspended because he allegedly failed to avoid conduct that impeded the integrity of the NFL and disrupted the public’s confidence in the NFL.  You can review the dialogue from the conference call about the disciplinary decision.

Is this a disillusioned perspective or an appropriate one?

Whatever your answer, one thing is certain: if law enforcement agencies adopted a personal conduct policy similarly worded to the NFL’s policy, people would take notice and perhaps community constituents might find a stronger desire to renew their faith in the public safety purpose that is supposed to be at the pinnacle of law enforcement missions everywhere.

According to the National Football League’s Personal Conduct Policy, everyone associated with the NFL is required to avoid conduct that would be “detrimental to the integrity of and public confidence in the National Football League.”

The NFL took their policy further by stating, “It is not enough simply to avoid being found guilty of a crime.” In fact, the NFL has a “considerably higher” standard of conduct than that of the criminal justice system.

Now, where are all the prosecutors and criminal defense attorneys? How many times have you been confronted with the notion of how high the burden of proof is in a criminal case for someone to be found guilty? To us lawyers, the burden is incredibly high.  As it should be, because life and liberty are at stake.  And I’ve even gone so far to diminish the civil burden of proof, which is lower than that in criminal court, because that mostly applies to cases involving property and money.

And yet here is Ezekiel Elliott, and every other NFL associated person, facing a higher standard than the legal standards people face to avoid losing money, property, or freedom.

Aside from the obvious moral compass that the NFL upholds so well, this recent NFL player suspension and the motives behind it can teach the law enforcement community something valuable.  Here are just a few ideas, but attach your own value to them.

What if every community had a sign as you entered the city or town limits that read, “Everyone associated with law enforcement in this city is required to avoid conduct that would be detrimental to the integrity of and public confidence in law enforcement.”

What if every officer received an infographic pocket card that reminded them what they signed up for: to protect and serve ALL the people in the community?  And then provide examples of what serving and protecting does not include, such as: harassing people of color and calling it a consensual encounter in their police report or punching a citizen in the head, causing a concussion, arresting them, and then saying they beat on you; stopping someone because their tail light is broken and then shooting them dead while their child watches from the backseat, or shooting someone while their hands are raised in the air just as you commanded, only because you were afraid of dying.

What if every officer faced the reality of being held to a higher standard of conduct than the criminal justice system? What if each of them was told, “We hope you never have to be charged with a crime or be put on trial, but if you are, and you are found not guilty, please know our standard of conduct is higher.”

What if every officer’s oath included the words, “To be a respected member of this organization, I will care about each of the people I serve and I know it is my duty to show them all the time, even when I think they don’t care about themselves and even when I think they don’t care about me.”

It is hard to think an organization that serves the public by providing entertainment publicly holds its employees to a higher standard of conduct but an organization that serves the public by providing safety fails to do the same.

Whatever your perspective, let’s just start the conversation.