New law may aid Acreage shooter By Rochelle E.B. Gilken Palm Beach Post Staff Writer Tuesday, September 19, 2006 Jose Tapanes is charged with first-degree murder after pumping two bullets into a 19-year-old man who had moved in across the street the day before. But legal experts say the 62-year-old resident of The Acreage may have been within his rights to shoot. He simply may have been "standing his ground." Under a law passed by Florida's legislature in 2005, residents don't have to retreat when they feel threatened. And they can use deadly force. Tapanes said he was arguing with his new neighbor, Christopher Cote, about 3:45 Sunday morning when he thought he saw a gun in Cote's hand. Tapanes grabbed his rifle, stepped out of his front door and shot him, the Palm Beach County Sheriff's Office said. "Under prior law, even if he felt the other guy had a gun, his obligation would be to simply close the door, withdraw into his house and call the police," said Bruce Winick, a law professor at the University of Miami. "He has the privilege under this law of shooting. It kind of shows us Florida is still a frontier state. "Of course, the shooter is going to use it as his defense — his fear of being in jeopardy — and the jury is going to make a credibility assessment." The fatal confrontation was the second time early Sunday that the neighbors had been in a dispute involving a gun, the sheriff's office said. Tapanes had a gun and a long stick when he first confronted Cote, who was walking his dog on Tapanes' property about 3:15 a.m. Cote went home, where he urged his parents to call the sheriff's office. They did not, so he returned to Tapanes' house. Tapanes came to the door and placed the gun next to his leg. They continued arguing. The dogs were barking. Tapanes said Cote backed up, then appeared to try to get past the door with a pistol in his hand. That's when Tapanes fired, the sheriff's office said. According to the sheriff's office, Tapanes fired one round from his rifle, pumped another bullet into the chamber and fired again. Both shots hit Cote's torso, dropping him dead at Tapanes' front door while Cote's relatives watched in horror from the edge of Tapanes' property. Investigators said the victim did not have a gun. At Tapanes' first court appearance Monday, his public defender hinted that the "stand your ground" defense was coming. "This man felt threatened by the individual who came on his property," said the public defender, who asked that the judge release Tapanes on house arrest before the trial. Instead, Judge William Bollinger decided that Tapanes, who has no history of arrest or mental illness, could be released on $150,000 bond, with the condition that he not possess any weapons. As of Monday evening, he had not posted the $150,000. Several of Tapanes' family members showed up at the hearing. "I'm just deeply saddened for the loss of this child. It's very sad. It's a tragedy for both families," said Melva Bustamante, a cousin. Sheriff's Sgt. David Conklin Jr., who investigated the case, also attended the hearing. He said he understands questions have arisen about the right to shoot, but he thinks the charges will stick. "We don't believe the law applies as Mr. Tapanes armed himself, came outside, shot him and shot him again," Conklin said. The law authorizes a person to use force, including deadly force, against an intruder or attacker in a home or vehicle. The person is immune from criminal prosecution if the use is justified. A person has the right to meet force with force if he or she believes it is necessary to avoid death or great bodily harm. The law's effect is being felt throughout the state. In June, a man shot his neighbor in Clearwater in a dispute and was not charged. The victim was shot twice during the argument, and the shooter said he fired to stop a potential home invasion. In August, law enforcement officers said a woman near Pensacola was justified in shooting an intruder in the head at her home. Also that month, a North Fort Myers man was not charged after shooting and killing a man during an argument because investigators could not determine who was the aggressor. One legal expert said the Tapanes case could expose flaws in the law. George "Bob" Dekle, legal skills professor at the University of Florida, offered this interpretation of the law: "It's open season on anybody that comes on your property." The law was promoted by the National Rifle Association, but Dekle, an NRA member, said he disagrees with it. "It makes the case easier to defend. It makes the case harder to prosecute," he said. Conklin said the investigation is continuing even after Tapanes' arrest. The evidence will be turned over to the state attorney's office, which will decide whether to turn the case over to a grand jury on a first-degree murder charge within the next 30 days, spokesman Mike Edmondson said. Winick, of the University of Miami, said the decision to allow Tapanes out on bond likely took into account the suspect's criminal history, threat to others and flight risk.