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Self-Defense or Indefensible

Florida’s controversial “stand your ground” law is once again in the spotlight.

In 2005, Florida passed its “stand your ground” law, giving people the right to meet “force with force” if they believe they are in harm’s way. Now, thanks to several high-profile incidents that have gained national attention and a recent change that shifts the burden of proof onto the state, the divisive law is once more a hot button issue.

This past July, the debate was revived when a man fatally shot another in a gas station parking lot in Clearwater. Michael Drejka and Markeis McGlockton got into an altercation over a handicapped parking spot which led to McGlockton shoving Drejka to the ground. While on the ground, Drejka pulled out a gun and fired one shot into McGlockton’s chest, killing him.

Drejka had a concealed-carry permit and, after being questioned by authorities, he was not arrested. Pinellas County Sheriff Bob Gualtieri cited Florida Statute 776.012, known colloquially as “stand your ground,” as the reason. Gualtieri claimed he was hamstrung because the law “created a standard, a largely subjective standard” with regard to the use of deadly force. And with that the law, which says a person has no “duty to retreat” before using deadly force if he or she reasonably believes they are in danger, was once again a hot topic with much public outcry, including unexpected rebuttals from the NRA and some Florida Republican lawmakers—both of which helped draft the original law.

After review of security footage and interviews with witnesses, Pinellas County State Attorney Bernie McCabe disagreed, however, and a few weeks later he made the decision to move forward and charge Drejka with manslaughter. (An autopsy report later showed that McGlockton was in fact turning away when the fatal shot was fired, which has led to more calls for the charges to be upgraded to murder. Additionally, prosecutors are seeking to use evidence that shows Drejka previously had an encounter with another man over the same parking space). The differing interpretations of the law between McCabe and Gualtieri have further called into question whether “stand your ground” is flawed.

It’s not the first time a “stand your ground” case in Florida has become a big headline. In 2014, Curtis Reeves was charged with second- degree murder after shooting Chad Oulson inside a Central Florida movie theater. The two had argued over Oulson’s use of a cell phone in the theater and when Oulson threw his bag of popcorn at Reeves, Reeves pulled out his gun and shot Oulson in the chest. Reeves invoked “stand your ground” as his defense, but it was rejected and he is set to stand trial in February 2019.

Bruce Fuller, a Maitland businessman, was sentenced last July to 20 years in prison for the killing of his friend Furrukh Alam after the two allegedly wrestled over a gun in Fuller’s home and it fired. Before the trial, Fuller had attempted to use a “stand your ground” defense, claiming Alam had charged at him carrying the weapon. However, he was denied immunity and was convicted of manslaughter—a lesser charge than the initial first-degree murder conviction sought by prosecutors.

In October 2016, Winter Park 15-year-old Robert Trindade was beaten to death near Central Park during an altercation with a group of teenagers. During the argument, one of the assailants threw a single punch at Trindade, knocking him to the ground and leaving him brain dead. Trindade spent two days in the hospital before he was removed from life support.

Two of the teens, Simeon Hall and Jesse Sutherland, argued they had acted in self-defense and thus sought immunity under “stand your ground.” Judge Jenifer Harris dismissed the motions, ordering them to stand trial as adults. However, when convicted of manslaughter this past June, they were instead sentenced to a juvenile facility and not prison. The judge defended her decision, saying the guilty teens deserved a chance at rehabilitation and not a future in the criminal justice system.

Trindade’s parents were not satisfied with the ruling, however, and in October they filed a major civil lawsuit against the teenagers involved in the incident, along with their parents, the city of Winter Park as well as Orange County Public Schools.

But perhaps the biggest “stand your ground” case Florida has ever seen happened in the spring of 2012 when George Zimmerman, 28 at the time, fatally shot a 17-year-old boy name Trayvon Martin in a Sanford neighborhood. Zimmerman was a neighborhood watch volunteer who saw Martin and called the police to report what he deemed to be a suspicious person. He was instructed not to approach the teen, but defied the police directive and when the two got into a physical altercation, Zimmerman shot and killed Martin.

It’s worth noting that in the Zimmerman and Martin case, a “stand your ground” defense was not used in court. However, because the Sanford police chief said that he did not arrest Zimmerman after the shooting because of “stand your ground,” the resulting court case became forever synonymous with the law—even if technically at the trial the defense never asserted “stand your ground.”

Zimmerman instead used a more conventional self-defense claim which ultimately led to his acquittal. Zimmerman’s injuries and forensic evidence pointed to him being on the ground as Martin attacked him and because he was unable to retreat, Zimmerman was legally protected to use force.

Despite the defense used, some have argued that “stand your ground” did indeed play a role in the Zimmerman verdict. Judge Debra Nelson referenced the law in her instructions to the jury and jurors have said that they discussed it prior to reaching their verdict.

Proponents of “stand your ground” argue that the previous self-defense standard “duty to retreat,” which implores people to first try to leave the situation before using force, was an undue burden on those who are in danger and must make a quick decision. Others argue that “stand your ground” emboldens people to escalate situations instead of trying to diffuse them.

“What’s most baffling is why the ‘stand your ground’ law is needed when the laws already permit self-defense,” says Eang Ngov, a professor at Barry University Dwayne O. Andreas School of Law in Orlando. “As a matter of public policy, the ‘stand your ground’ law allows for unnecessary escalation of violence. When a person is in an open public area, why shouldn’t that person be required to retreat first, before killing someone?”

In general, the self-defense law is about the threat of the moment. However, “stand your ground” laws only apply if you are in a public place where you have the right to be and you had an opportunity to retreat but chose not to. If you are unable to retreat, as was said to be the case with Zimmerman, a standard self- defense law protects the use of force. But if one is able to retreat, force must be justified under a “stand your ground” law.

Before joining Barry University, Ngov served as a deputy prosecuting attorney in Washington. Today, she teaches classes on topics such as criminal law, federal jurisdiction, trial advocacy and more.

Ngov says she could see the argument for keeping “stand your ground” if it did indeed reduce violence. “But this doesn’t seem to discourage violence,” she says. “It just seems to allow people to escalate it and take it steps further. … It hasn’t decreased deaths and the confusion makes it easier for shooters to think they have a right to shoot.”

Research is wide ranging, but The RAND Corporation reviewed several studies on the matter, and based on their findings, they say evidence that “stand your ground” directly correlates to an increase in homicide rates is “moderate.”

State Attorney for Orange and Osceola County, Aramis Ayala, says the law is an extension of “castle doctrine,” which says that people in their own home do not have the duty to retreat before using force.

“The sanctity of one’s home is something worth protecting,” she says. “‘Stand your ground,’ however, protects stereotypes, insecurities and egos.”

Ayala and other critics of the law point out that race is a troubling factor in these “stand your ground” cases. Martin was an African-American, while the shooter, Zimmerman, was white and His- panic. In this most recent “stand your ground” shooting in Clearwater, Drejka was white and McGlockton was African-American.

“A feeling of fear is all that is necessary [to stand one’s ground], and we all should be concerned when that fear is consistently based on a false stereotypical image,” Ayala says.

Ngov says it’s possible race exacerbates the problems of “stand your ground” laws. “Because there are studies about implicit bias,” she says, “that we make underlying assumptions about race without realizing it.”

State Attorney for Seminole and Brevard counties, Phil Archer, disagrees that “stand your ground” is the problem.

“I think what happens is people hear bits and pieces or they see certain media reports that don’t maybe accurately reflect what the law says,” he says. “Or you have spokespeople [or] sometimes law enforcement says something  that’s not necessarily accurate. And so I think people get confused because they hear different pieces and it becomes this, ‘I can do anything I want. If I’m carrying a firearm, I can do anything I want.’ And that’s just not true.”

“I think ‘stand your ground’ is OK,” Archer continues. “I think it’s a good law as far as doing away with the ‘duty to retreat.’ I think that was probably an undue burden put on people.”

Archer says the previously used “duty to retreat” standard needed to be updated because it forced people to have to make a range of calculations when they might only have a few moments to react and protect themselves.

“The problem with [duty to retreat] is it’s a complicated set of decisions that you have to make in your own mind,” he says. “First you have to decide, ‘Do you have a right to use deadly force? Are you facing death or great bodily harm?’… Not only did the law require you to make that calculation but the law also required that, ‘OK, instead of shooting this person who’s pointing a gun at me or coming at me with a knife, can I run away? Can I run to the left? Can I run to the right? Can I back up?’ … All these other calculations, that’s really tough. That’s asking a lot of anybody.”

One thing both Archer and Ayala agree on is that the Florida Legislature’s 2017 change to the law that shifted the burden of proof from the defendant to prosecutors in the pretrial immunity hearing was a mistake.

If a defendant claims “stand your ground” as a defense, he or she is given a pretrial hearing where a judge decides whether the defendant should be given immunity from prosecution.

This new law requires prosecutors to prove by clear and convincing evidence that a defendant is not entitled to immunity from prosecution at the pretrial hearing. Previously, the defendant was the one who had to prove that he or she deserved immunity.

“Florida’s immunity statute makes it easier for a defendant to assert immunity and more difficult for the prosecution to rebut it. … This presents a difficult challenge for the prosecution as it must mount its case during the pretrial hearing and overcome the immunity assertion before it can actually present its case at trial,” Ngov says.

When the bill was initially introduced and being debated, Archer traveled to Tallahassee to testify why the change was unneeded and harmful. “My argument was there was no reason to change the law,” he says. “There was no rampant abuse of people being denied hearings or losing a hearing and winning at trial. It just doesn’t happen.”

Archer challenged legislators to find one case where a defendant had lost a pretrial hearing and then won at trial. A case like that would demonstrate that the defendant was perhaps unfairly put through a trial when he or she should have been granted immunity at the pretrial hearing.

“That’s never happened,” Archer says. “Nobody’s been able to find me a case where that’s happened.” State Sen. Rob Bradley, a Republican, sponsored the bill that shifted burden of proof in these pretrial hearings.

“Simply put, if the government doesn’t have the evidence to prevail at an immunity hearing, the government certainly doesn’t have sufficient evidence to win at trial,” he says.

State Sen. Dennis K. Baxley, a fellow Republican who voted for the bill that changed the pretrial hearing rules, says he did so because defendants deserve the presumption of innocence.

“It is foundational in our law that whoever is accusing you of a crime [has the] duty to show that you committed a crime,” he says. “It’s not the accused’s responsibility to prove their innocence and that’s why I supported that.”

Baxley, who was a member of the Florida House of Representatives before becoming a state senator, was one of the main architects of the original law. “Some people call me the father of ‘stand your ground,’” he says.

Baxley believes Florida gets a lot of attention for the law because it was the first state to enact it. “We shared that legislation with other states and now about 26 states have similar provisions,” he says.

In response to the death of McGlockton in the “stand your ground” shooting case in Clearwater, Rep. Shevin Jones (D-Hollywood) introduced a bill to repeal the law.

Meanwhile, some state senators and representatives pushed for a special legislative session to address “stand your ground,” but they did not receive the required three-fifths support from both chambers to hold a special session. The vote was largely split on party lines with Democrats supporting holding the special legislative session and Republicans voting against it.

So, for now, it seems “stand your ground” will continue on, as will the debate over its value.

This article originally appeared in Orlando Family Magazine’s November 2018 issue.