Dangerous Precedent for Process Server Assault in Florida

• May 08, 2017
• by Stephanie Irvine
• Articles

Update: On July 28, 2017, Chief Judge Metzger dismissed the letter of complaint against Marcia Gillings due to insufficient evidence of wrongdoing.

Process servers in Florida may be wondering if they really have the state’s backing after a jury recently ruled in favor of a gun-wielding homeowner, which is being touted in mainstream media as a victory for Florida’s Stand Your Ground law.

The job of a process server is to ensure due process by making sure an individual has received important legal documents, often including a summons for a court appearance. Unfortunately, not many people in the general public understand the duty of a process server, and those being served often react negatively and sometimes violently. In recent years, gun violence against process servers has become more prevalent, such as the case in this incident.

Due to increasing threats of violence on the job, there has been a movement in the process serving community to increase awareness of process server assault and to increase protections by the government. New York most recently passed legislation making an assault on process servers a felony after taking a cue from Illinois.

However, Florida is one of the few states that already had laws on the books protecting process servers from assault when attempting to serve process. The law makes it a felony to assault members of Law Enforcement, as well as probation officers and individuals “legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty,” and is punishable by five years’ in prison. Although it was clearly established that the process server was at the residence to deliver legal documents, the process server will not be afforded the protection that legislation established.

The Incident

The July 2015 incident involved Marcia Gillings, a process server who was attempting to serve Daryl Bank, of Port St. Lucie, at his residence after being unable to serve him at his business. Gillings positively identified Banks as the individual to be served as she had previously served him before. She went up to the entrance of the home and attempted to serve Bank. Bank’s child was present, but Gillings asserted that she never touched the child. Gillings saw Bank’s wife and drop-served the documents. When she saw Bank himself approaching, she bent down to retrieve the documents that she had dropped to hand them to him. Bank brandished a handgun and pointed it at Gillings. She left the premises with Bank following her, whereupon she called 9-1-1.

The arrest affidavit states Bank was arrested April 6, 2016, on a warrant for the assault of the process server. The case, which recently concluded in March 2017, began in July 2015.

Judge's Order

Initially, the case was heard before the Honorable Judge Robert Belanger, who issued a six-page order that found there to be no grounds for a “Stand Your Ground” defense.

The Judge’s order also asserted that the process server’s account seemed true and accurate: “The court finds the testimony of Marcia Gillings to be credible, and generally corroborated by the transcript of the 9-1-1 call (Defense Exhibit 4) and the transcript of a phone call (Defense Exhibit 5).”

As for Bank, it is not the first time he has found himself in hot water. He was facing a complaint from the Securities and Exchange Commission around the same time that the incident with Gillings occurred. The complaint alleged that he defrauded the elderly out of millions. The Pilot reported Bank’s legal history, highlighting a penchant for getting into trouble, commonly in cases of fraud. Gillings was serving him on an unrelated case.

Early on, Bank had attempted to establish a case for Stand Your Ground with the idea that he was in imminent danger, fearing for his life, and that Gillings was intent on committing a felonious act. He painted a picture that Gillings was a burglar who could’ve been part of a larger burgling scheme, and he and his wife were scared.

However, the testimony, as reported in the Judge’s Order, contradicted that idea. The Judge’s Order recalls the testimony of Bank and his wife that demonstrated that they both knew that Gillings was a process server, and therefore, establishing that they knew her intentions for being at their home (process service). The testimony reports that Bank’s wife stated that when Gillings announced that they had been served that “we started to realize” that Gillings was a process server.

The Order also cites testimony from Katrina Bank, Daryl Bank’s wife, recalling Daryl Bank’s reaction after realizing that it was only legal papers that Gillings had delivered: [Daryl Bank] “kinda smiled, and said ‘you dumb broad.’” The quip appeared to be a further acknowledgment that the process server was not a burglar.

The Order continues and asserts that rather than accept the papers, Bank followed Gillings to her car with his gun to toss the papers back at her. The document concludes by stating “The Defense has failed to prove even by a mere preponderance of the evidence that the defendant had a well-founded fear of suffering or great bodily harm at the hands of the victim. Accordingly, the defendant’s Motion to Dismiss is denied.”

Bank then went on to have a jury trial using the same defense.

Acquitted by a Jury

Despite the Judge’s Order to Dismiss the Stand Your Ground defense, the dismissal did not stop Bank from going before a jury and eventually getting the ruling he sought. Banks was facing four charges, including violating section 843.01 of Florida Statutes, resisting an officer with violence, a felony. The other charges included aggravated assault on an elderly person with a deadly weapon, also a felony, as well as assault on an elderly person, and aggravated assault with a deadly weapon.

Bank was acquitted by the jury of all counts.

Headlines reporting the case read “man wins case using stand your ground defense. ” Numerous televised interviews show Bank recalling his account of the situation. However, this case is complex, and with the Judge’s Order denying the Stand Your Ground defense, it’s dubious that this could be considered a landslide win.

In one report, financial means are cited as a contributing reason to his ability evade a guilty verdict. A local news article reported: “Bank admits this case may not have gone in his favor without his financial means. ‘I know if it was the average person watching this interview, they’d be either sitting in jail or on probation right now, and that’s offensive,’ Bank said.”

The case may be over for Bank, but the process server, Marcia Gillings, is now facing a civil suit that threatens to shut down her business, which she’s had for over three decades without incident.  As a result of the civil suit, she was not able to make an official comment.

Setback for Process Servers?

The verdict, which could set a dangerous precedent, could significantly impact the process serving community. Process servers who have been assaulted may find that their assailants can use the “Stand Your Ground” defense to evade felony charges.

Process servers need to do their jobs to ensure due process, and individuals who obstruct that process are doing a disservice to the American people.

This case can now be cited as a defense in future process server assault cases. How can process servers do their job if they aren’t afforded the simple protection of laws that are already in place?

We reached out to board members of the Florida Association of Professional Process Servers for comment; however, they declined to comment stating that they would be issuing a comment in their own publication.

As members of the process serving community, how are you reacting to the decision? Let us know in the comments.

Read more about Process Server Safety:

• Promoting Assault Awareness and Protective Regulations for Servers (PAAPRS)
• Erin's List: Process Server Safety Tool
• Process Server Assault Prevention Training
• Dangers of Process Serving Hit Home in Texas
• Maryland Focus: Process Server Assault
• Assault on Process Server in New York Will Be a Class D Felony Starting Nov 1
• Process Server Assault Legislation by State
• Process Servers and Assault
• Test Your Process Server Assault Prevention Knowledge
• Tips For Preventing Process Server Assault
• What Association Leaders Say About Process Server Assault
• What To Do If You Are Assaulted On A Serve