Gay Man Says Justice System Failed Him In Refusing To Grant Restraining Order Against Accused Attacker

MIAMI (CBSMiami) - James Garcia says he was attacked last week for being gay.

Police have not classified his attack as a hate crime and Garcia's request for a restraining order has been denied.

Meanwhile, the accused attacker is out on bond.

Garcia said the scar on his forehead was a result of the attack. He has eleven stitches and also his nose was fractured.

He said he's still healing after being violently attacked.

Garcia said he was walking his dog at around 7:45 in the morning near the Intercostal. He said he turned around only to see this big guy coming up to him asking him if he was gay and then he punched him.

According to police, that big guy is 36-year-old Maurice Charles.

He was arrested and charged with aggravated battery, but Garcia said shortly after Charles was released on bail and fearing another attack, he filed a restraining order, but the petition was denied.

"It appears Florida statute requires the attacker to assault me more than once before the judge approves a restraining order. So, for me that felt like another attack this is where the justice system failed me," said Garcia.

Attorney David Weinstein said, "In a situation where you're not involved in a relationship with the person you'd have to show that someone has been stalking you and harassing you, not necessarily physically attacking you."

And Weinstein said since Garcia was not in a relationship with the victim, legally his options were limited.

"Unfortunately, most of these restraining orders are tailored in a way to prevent repeat acts of violence upon individuals. The issue with a restraining order that you're seeking for repeat act of violence is just that you have to show that there is more than one act of violence."

With his attacker out of jail and no restraining order, Garcia said he doesn't feel safe.

"I'm hoping that elected officials hear my story and think about the current Florida statute that gives attackers more rights than the victims."

Garcia's attack is still under investigation. He has also requested this situation be considered a hate crime, but so far the charges have not been upgraded.