UPDATE, Feb. 21: A judge on Feb. 21 agreed to delay Dale Massad’s attempted murder trial. His attorneys said they need more time to investigate new information. The trial will be moved to either March 16 or May 11.
PORT RICHEY — A series of booms and blasts rang out at Dale Massad’s waterfront home shortly before the then-mayor’s arrest last February. They lasted 39 seconds.
At his door, Pasco County Sheriff’s SWAT deputies knocked, used a battering ram and blew the locks off with a specialized shotgun. Massad fired two shots from a handgun. No one was hurt, but prosecutors charged him with five counts of first-degree attempted murder. Those 39 seconds will be key in Massad’s attempted murder trial, set to begin Feb. 24, and they’re emphasized in a stand your ground motion filed by his attorneys earlier this month.
A Tampa Bay Times investigation last year delved into Massad’s mayoral tenure, rife with drug use and political intrigue. He has already been convicted of conspiring to obstruct justice. A trial for practicing medicine without a license is set for May.
But his stand your ground defense could push his attempted murder trial into uncharted waters. Massad’s attorneys and local legal experts say they know of no previous stand your ground cases like his.
“You have to be creative,” Massad’s attorney Denis deVlaming said of arguing a case with little precedent. “If nobody has created it for you in the past, you have to look at the facts and decide what to tell the jury.”
Deputies arrived at Massad’s door at about 4:30 a.m. on Feb. 21, 2019, to serve a search warrant as part of an investigation into allegations that Massad was practicing medicine without a license. They announced their presence first by yelling, then via loudspeaker. But deVlaming and his co-counsel, Bjorn Brunvand, argue that Massad didn’t hear them. And the attorneys say deputies didn’t give him enough time to answer the door before breaching it, causing Massad, who had been asleep in his room with a fan on, to think that criminals were breaking into his home.
The attorneys have only found one similar stand your ground case, deVlaming said. In 2015, John Derossett, a 65-year-old retired autoworker in Brevard County, shot at three men who had pulled his 42-year-old niece out of their home when she answered the door. The men turned out to be plain-clothes deputies there to arrest the niece on prostitution charges.
Facing attempted first-degree murder charges, Derossett filed a stand your ground motion. The law says it doesn’t apply when the target of deadly force is a law enforcement officer on the job. But a judge ruled in December that the deputies hadn’t clearly identified themselves, negating the law enforcement provision in this case.
The judge ultimately ruled against Derossett’s motion, though, because the home was the site of his niece’s criminal activity — another factor that precludes stand your ground. His next court appearance is set for April.
What Derossett’s case could mean for Massad is unclear. It shows that stand your ground isn’t entirely out the window in cases involving police. But in Massad’s case, there’s no question that deputies tried to identify themselves — it’s more a matter of whether prosecutors can convince a judge that Massad knew or should have known who they were.
Massad’s defense argument will highlight the drawbacks of using a SWAT team to serve a search warrant late at night or early in the morning, said Bill Loughery, a former chief assistant prosecutor for Pinellas and Pasco counties.
“It makes the most sense because you’re going to catch somebody unaware,” he said. “The other edge of the sword is, people can make a plausible defense they were unaware it was the police.”
There’s no set amount of time that SWAT officers serving a warrant should wait after knocking, said Adam Bercovici, a retired Los Angeles Police Department lieutenant who led the department’s tactical surveillance unit. A minute or two may be appropriate in many cases, he said. But officers serving a search warrant in a drug investigation, for example, might want to move faster so a suspect doesn’t have time to destroy evidence.
Other elements that could come into play in this case include a 911 call and a statement attributed to Massad in his arrest report. In the 911 call, a woman inside Massad’s house tells a dispatcher she’s scared and asks to know what’s going on. A deputy’s voice coming over a loudspeaker can be heard in the background.
“We don’t know anybody that’s here,” she says. “Is the Sheriff’s Office really here?”
And deputies wrote in the arrest report that Massad told them he thought he was firing at Port Richey police officers. That assertion would contradict Massad’s claim that he didn’t realize law enforcement officers were at his door.
Brunvand and deVlaming have said that the recorded interview in which Massad allegedly made that statement doesn’t include such a quotation. Pinellas-Pasco Assistant State Attorney Bryan Sarabia, who oversees prosecutions in west Pasco County, said there isn’t a moment in the recording when Massad specifically says that he meant to shoot at Port Richey police, but he didn’t want to comment further.
“We are still looking through exactly what statements are admissible in evidence by Mr. Massad and whether or not they’re relevant to prosecution,” he said.
There’s also no moment like that on the body-worn camera footage. The video shows Massad complaining about his treatment and accusing deputies of planting evidence — possibly drugs — in his house.
“Just call me Pablo Escobar,” he says.
It also shows the same woman who placed the 911 call telling a deputy that she was glad the Sheriff’s Office, not the Port Richey Police Department, served the warrant.
“If it were our cops,” she says, “they would’ve shot him.”
Florida’s stand your ground law changed in 2017 to put the burden of proof on prosecutors rather than defendants. But Roger Futerman, a Clearwater defense attorney, noted that the judge will have to believe two things: that Massad thought criminals were breaking into his house, and that he was reasonable in thinking that.
“I think they’ve got a very tough hill to climb,” he said.
Stand your ground cases typically involve a separate, pre-trial hearing, where both sides argue directly to a judge. If the judge decides the defense is valid, the defendant is immune from prosecution and the case is dismissed; if not, it moves to trial, though the stand your ground proceedings sometimes push trial dates back.
But in a pretrial hearing earlier this month, the defense attorneys, prosecutors and Judge Mary Handsel agreed that having a separate stand your ground hearing would delay the trial date — and that none of them wanted that.
Instead, Handsel will hear the stand your ground argument as a judgment of acquittal. That’s the phase of the trial where the defense asks the judge to dismiss a case after both sides have presented their cases to a jury, but before the jury rules.
Both Futerman and Loughery said they’d never heard of a stand your ground case playing out like that. Futerman said he typically doesn’t see stand your ground as an advantageous tactic: If it doesn’t work, the defense has shown its hand.
But that’s not the case with the Massad trial. The defense will make its argument just once, but it’ll have two shots at success: once with the judge, and another — if needed — with a jury. Futerman said he sees this as a plus for the defense.
“They have nothing to lose,” he said.