Florida's Stand Your Ground Law (Part 2)

by Aaron Delgado
11/04/19

This is the second half of a two-part article about Florida’s unique and evolving Stand Your Ground Law by firm partner and Board Certified Expert in Criminal Trial Law Aaron Delgado. You can read the first half of the article here: Florida’s Stand Your Ground Law (Part 1)

Florida Stand Your Ground Law

Multiple Miami judges have ruled Florida’s Stand Your Ground Law change unconstitutional, and while their reasons may differ, last year South Florida’s League of Prosecutors agreed.

Does Florida’s Stand Your Ground Law Protect Convicted Felons?

A less discussed nuance of Florida’s Stand Your Ground Law concerns whether a person seeking to assert the Stand Your Ground protection is engaged in criminal activity during the incident giving rise to the eventual defense. (See Florida Statute Section 776.012(2) and Section 776.031(2).)

I am not advocating for a Wild West mentality with regard to self-defense, but rather would like to highlight the circumstances where a convicted felon is faced with the choice between death and obedience to the Florida Statutes. To illustrate: Frank’s only felony conviction is for Driving While License Suspended.  Frank’s right to own a firearm has not been restored. Frank was charged with a crime due to Frank’s use of a firearm to defend himself or property other than his dwelling from forcible entry (or as the State would argue, due to his commission of a crime against a victim who happened to be at Frank’s home). Frank would not be entitled to one of Stand Your Ground’s most controversial aspects—immunity from prosecution. Frank would be committing the crime of Possession of a Firearm by a Convicted Felon, thereby committing unlawful activity, and unfortunately barred from an opportunity to have a pre-trial hearing where he can argue for the dismissal of the State’s case before trial.

Despite the unavailability of the Stand Your Ground defense, I would still take Frank’s case. Frank would likely be entitled to avail himself to the common law principles of necessity and self-defense. The distinction being that Stand Your Ground would allow him to present his defense to the judge prior to trial with the hope that the judge would find in his favor and dismiss the case. Since that option would not be available, Frank would bear the burden of proving his affirmative defenses during a trial.

Practical Strategic Applications of Stand Your Ground by Defense Counsel

Even though the reward from a victory of a Stand Your Ground hearing is immunity, with that reward comes great risk. Oftentimes the decision to file a motion to determine immunity from prosecution is strategic; while wining the motion means wining the case, losing the motion means the State has already seen your defense and will now have more time to prepare in countering it.

If the judge fails to find that the defendant is immune from prosecution, that does not mean that the defendant is prevented from raising the issue and argument to the jury. However, in today’s increasingly polarized society, Stand Your Ground is among the more polarizing issues. Many deem it as rewarding or muddying the water as to how our society deals with implicit racial and socioeconomic biases. Thus, a racially-charged case will require a criminal defense attorney to evaluate whether the jury pool is likely to be receptive to a Stand Your Ground defense.

Costs of a Stand Your Ground Defense

It is an unfortunate reality that those with more wealth are often able to obtain a better defense. Yet, when faced with the potential for life in prison, people across the socioeconomic spectrum liquidate assets and pool resources in order to fund sound defense for the accused.

The funding of a criminal defense does not entail only legal fees; a defendant’s budget can influence the decision of whether to file a Stand Your Ground motion. Ballistic experts, human factors experts, and crime scene reconstructionists are just a few examples of the types of expert witnesses that may be employed to assist in a Stand Your Ground defense. These experts do not work for free and are often hundred of dollars an hour. In addition, there are costs to transcribe depositions, costs for copies of CDs, reports, etc. Accordingly, often times the resources required to fund both a hearing and (in the event of a loss) a trial can be considerable.

Stand Your Ground & the Media

Back in the days of actual kings and castles, this same principal existed. However, the body of principals we recognize as the “common law” evolved with “a greater emphasis on life than chivalry” and commanded that a person had a duty to retreat if attacked or provoked (Cannon v. State, 464 So. 2d 149, 150 (Fla. 5th DCA 1985)). However, at least as far back as our Roman predecessors, western civilization has always recognized that a person has no duty to retreat if he is attacked while at home.  I won’t go so far as to say our legislature had the virtue of chivalry in mind in 2005 when it passed Florida’s first version of Stand Your Ground, but abolishing the common law duty to retreat has certainly been controversial.

State of Florida v. George Zimmerman

George Zimmerman is now a ubiquitous name during any discord concerning Stand Your Ground or the fractured race relations in America. Defense Counsel for Zimmerman made the strategic decision of not filing a Stand Your Ground hearing. Thus, as we all know, the case proceeded to trial, the jury was instructed on the issue of Stand Your Ground, and acquitted Zimmerman.

Had Zimmerman been required to retreat, would the outcome have been different?  Perhaps, but the interesting thing about a trial is that it is a universe and a reality in and of itself. What I mean by this is that Zimmerman was on his back being punched by Martin when Zimmerman pulled his gun and shot the unarmed African American teenager. How could he have retreated? If common law self-defense applied, would the reality created in trial have been that Zimmerman was required to retreat prior to engaging Martin in the first place? Certainly, the State and Defense would have argued over which “reality” the jury was to accept.

State of Florida v. Curtis Reeves

While not as racially charged, just as controversial is the case of Curtis Reeves. Mr. Reeves attended a movie in Pasco County, Florida, in 2014. He was upset that Chad Oulson’s phone was going off in the theater and told him as much. After Oulson threw popcorn at Reeves, Reeves believed that Oulson was about to pull out a gun. No gun was found on Oulson after Reeves shot him in the chest. Reeves did file a Stand Your Ground motion which was denied by the Court. However, the case is currently “on hold” for a determination in Ms. Love’s case as to whether the burden shifting amendment is retroactive.

State of Florida v. Michael Drejka

This current politically and racially charged Stand Your Ground case also hails from Florida’s Gulf Coast. Michael Drejka shot and killed Markeis McGlockton after McGlockton pushed him to the pavement during a dispute over parking spot. Video surveillance of the shooting shows McGlockton violently push Drejka to the ground. However, McGlockton appears to turn away from Drejka right after the push and right before the fatal shot.

At first, Drejka was not arrested. However, immense public pressure and criticism likely resulted in Drejka’s arrest for manslaughter. While Drejka’s case has yet to be set for a Stand Your Ground hearing or trial, this case has added fuel to the debate over the racial implications of the Florida Stand Your Ground Law. For now, whether implicit bias or justifiable fear for life was the cause of McGlockton’s death remains to be seen.

Stand Your Ground Criminal Defense Lawyers

Florida is a unique state and, of course, we have one of the most unique self-defense laws on the planet. In a sweltering and heavily armed peninsula, there are bound to be cases that test the limits of what is justifiable self-defense. It is probably not justifiable to shoot someone for texting in a theater, even if they throw popcorn at you. But for every case that seems clear cut, there are those that test what we think about the law, ourselves, and our reactions under stress.

At Delgado & Romanik, PLLC, our criminal trial practice involves defending people who properly claim self-defense. Not every self-defense case ends with a shooting—many times it is a struggle or displaying a weapon (or a warning shot) to protect and prevent further violence. Our team of experienced trial lawyers has successfully argued self-defense, in all its variations, to judges and juries. We understand how to take a jury to that adrenaline-filled moment of split-second decisions that have life-long consequences.  Not only do we draw on our own life experiences in stressful situations, including combat situations, but we work closely with a team of experts (use of force, police practices, human factors, medical doctors, combat medics, etc.) to recreate the fateful encounter and illustrate how your decision was the right one.

Sometimes you have to make a split-second decision to save your life—hiring an attorney, thankfully, is not one of those times. If you or a loved one have been accused of a crime and believe you acted in self-defense or defense of others, regardless of what hindsight may lead the police to believe, call us at 386-222-6677 for a free consultation.

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