Last Updated: 3:55 p.m.
Paul Miller was released from Flagler Beach police custody about a half dozen hours after he shot and killed Dana Mulhall Wednesday evening as the two men argued across the fence separating their South Flagler Avenue homes. (See Wednesday’s story here.)
Miller is arguing self-defense. No weapon was found near Mulhall, who had allegedly threatened to kill Miller and his dog.
“At this time the State Attorney’s office has felt like it’s not necessary to charge him,” Dan Cody, Flagler Beach’s police chief, said this morning. “They’re going to want to wait until the outcome of the autopsy.”
At mid-afternoon Thursday, the State Attorney’s office sought to clarify that statement: “The State Attorney’s office told the chief of police we had to complete our investigation before we can file our charges,” Klare Ly, spokesperson for State Attorney R.J. Larizza, said. “He never told the police chief he could not charge him.”
In other words, the Flagler Beach Police Department, the lead agency on the case, was free to file charges against Miller, and could do so based on the “probable cause” standard police agencies have to meet when filing charges. Those charges are separate from those the State Attorney then files (or not), though by the time the State Attorney files that office’s charges, they must meet the “beyond reasonable doubt” standard.
Cody said it’s not unusual in such circumstances, when two individuals are arguing and the fight turns deadly, that charges are withheld, at least initially, if there is some evidence of self-defense. “It’s under investigation at this time,” Cody said. The Florida Department of Law Enforcement and the Flagler County Sheriff’s Office assisted in the investigation.
The shooting took place shortly after 6 p.m. South Flagler is a leafy avenue lined with single-family houses in close succession, and, in that particular neighborhood, peopled with children who play, skateboard and amble about in the street. Mulhall, according to the police chief, was at a bar Wednesday evening. He returned home. Miller’s dog was barking (as it was this morning).
“Mulhall was complaining about the dog and said he was going to kill his dog, to kill him,” Cody said, him being Miller. The two men were arguing across a fence.
“Supposedly,” Cody said, Mulhall “made a move like he had a gun, and at that time Mr. Miller shot him.” Miller fired a 9mm Luger five times, hitting Mulhall at least three times. “Right now all we know is one in the neck, in the chest, and in the right or left thigh,” Cody said. An autopsy is being conducted.
The two men were each on his own property. One neighbor who heard the shooting said the five shots were fired slowly, one after the other.
Around 10 this morning, Flagler Avenue between 13th and 14th Street was back to its languid self. The yellow crime tape had been removed from the scene. Mulhall’s small white house, an old, 1,000-square-foot single-level structure he was renting from a landlord in California for well over 12 years, was quiet, Mulhall’s black Bronco facing toward the street, in front of the garage.
Across the fence south of Mulhall’s place, there was some activity–voices, a dog barking, doors clanging open and shut–in Miller’s house. A young man in his 20s appeared on the porch. He was asked about Miller. “He’s not ready to talk,” the young man replied courteously.
There was little evidence of the shooting, except for a small uneven circle of blood on the pathway leading to Mulhall’s front door.
When asked specifically about whether weapons had been found near Mulhall, Cody said “nothing visible” had been found, but that the autopsy had yet to determine whether he had a weapon on his person. Was his body not searched for weapons? “They looked on his person the best they could,” Cody said, and found nothing.
Of the neighbors in the area, some of whom had locked up their children for safety soon after the shooting, Cody said: “They don’t have anything to fear.”
In February 2009, then-Gov. Jeb Bush signed a so-called “shoot-first” law that made it legal for people to shoot first, and not retreat to a safe place, if they feel threatened.
“The prevailing fact is whether the person who doesn’t have to retreat usually believes that he is in fear of great bodily harm to himself or others, and he uses deadly force to prevent the commission of a forcible felony,” Jim Manfre, a lawyer and former Flagler County sheriff, said. (Manfre is running for that office this year.) The common law in most jurisdictions requires you to retreat to a safe place,” he said. “This statute now allows you not to have to retreat, or stand your ground, if you reasonably believe that it’s necessary to prevent a forcible felony. It then allows you to use deadly force.”
The full text of the law is below the picture at the foot of the article.
Florida’s Justifiable Use of Force Law