As the legislative session neared a close last week, the Florida House and Senate reached a compromise to a bill that substantially changes the Stand Your Ground Law in Florida. The new law would shift the burden from from the Defendant to the prosecutor at the pretrial hearing to prove that the case is strong enough to proceed against the Defendant. If Governor Scott signs the bill, the burden will no longer be on the Defendant at the ‘Stand Your Ground Hearing’.
Though both the House and Senate agreed that they wanted to put the burden on the prosecutor for the pretrial hearings, it wasn’t until the last day of session on Friday that both houses came to a compromise on what that burden should be. The Senate was pushing for a beyond a reasonable doubt standard, while the House position to use a clear and convincing standard ultimately won out. The bill will now go to Governor Scott’s desk to sign before it becomes law. It is expected he will sign it, as the bill garnered widespread Republican support in both houses of the legislature.
What does this change mean? The original ‘Stand Your Ground’ law, among other things, created a right of immunity from prosecution for people who use justifiable force to defend themselves. Unfortunately, the legislature did not clearly establish a procedure for determining when immunity was appropriate, that is, how do you know when force is justified so that a person cannot be prosecuted. Over the next 12 years, the courts formulated a procedure whereby a hearing would be held prior to the case going to trial. The courts put the burden on the Defendant to demonstrate that he was immune from prosecution.
The legislature has now essentially said, hey wait: the burden is on the state to prove a case. We didn’t establish immunity to burden the Defendant, or to remove the burden from the State… we created it to protect those who used force to defend themselves. This new law, if it is signed by the Governor, will put the burden on the prosecutors to demonstrate by clear and convincing the likelihood that the defendant was not justified in using force before they can put the defendant to trial (where they will still have the burden beyond and to the exclusion of every reasonable doubt).
While there was strong support for the bill, there was opposition from anti-gun activists, as well as from many prosecutors. The opposition from prosecutors may seem surprising from a generally conservative profession, but this bill directly affects them by making it more difficult to prosecute cases where use of force will be raised as a defense. It has been speculated that prosecution costs will rise, but the other effect of the bill may be to discourage prosecutors from proceeding on cases they are less likely to win. The cost may end up being a wash when all the factors come to bear, but only time will tell. In the meantime, this bill will definitely help people who claim justifiable use of force.
In the last month, a circuit court in Tampa held a Stand Your Ground hearing on the case of Curtis Reeves, a retired police officer. Reeves shot and killed a man named Chad Oulson after a heated argument in a movie theater. There is some dispute about the factual details, but the general case is based on an argument that began verbally, but became physical. The two exchanged words, and at some point, Oulson snatched a bag of popcorn out of Reeves’ hand, and threw it back at him. Defense lawyers allege that he also threw a phone at Reeves. Reeves pulled out a handgun and shot Oulson: CNN has the surveillance video of the incident.
The court held about two weeks of testimony. In her ruling, the judge found some of Reeves’ testimony to be contradicted by the evidence, and questioned his veracity. Under the current iteration of the Stand Your Ground law, the burden is on the Defendant to prove up his motion, but that could be changed down the road. Reeves can still argue that he was justified in defending himself to a jury, if he can convince them that he reasonably thought he was in fear of death or great bodily harm. Generally speaking, that’s hard to show when the other party is unarmed… Reeves brought a gun to a popcorn fight. Given that he’s in his 70s, I fully expect this case to end up going to trial, though it could still be a while.
Dakota Fields, the deceased
Yesterday the State Attorney’s Office released the surveillance video from the Waffle House shooting in Fort Myers a few months ago. The video clearly shows Dakota Fields rush the door to attack Jehrardd Williams, who was standing inside with a firearm. Fields died in his friend’s vehicle after an accident as they were trying to get him to the hospital.
The legal issue at the case, which is a clear instance of self-defense, was the level of force justified. Mr. Williams used deadly force to defend himself, but there was no indication that Fields, or his friends, were armed. Does the Stand Your Ground law permit someone to used deadly force (discharge of a firearm is always deadly force in Florida), against someone who is unarmed? It can. It’s a case by case basis: deadly force is permissible if a person reasonably believes they are in danger of imminent death or great bodily harm. [emphasis mine] The State decided that in this case, it could not prove otherwise beyond and to the exclusion of every reasonable doubt.
Local reporter Stacey Deffenbaugh asked me Thursday, after the manslaughter verdict in a another stand your ground case, how many stand your ground trials had occurred since the law passed in 2005. There’s no way of knowing for sure, as not all cases are murders. Further a lot of the cases not only don’t go to trial, but do not get filed on because the prosecutors recognize the difficulty of proof.
Also, don’t start fights at Waffle House.
Here’s the Waffle House story and footage at the News-Press.
The Florida Supreme Court heard a case on Tuesday that takes a novel look at the Stand Your Ground Law. The current status of the law is that a defendant can file a motion for immunity, and will be entitled to a hearing on it. At that hearing, the burden is on the Defendant to prove, by a preponderance of the evidence, that he was justified and therefore immune from prosecution. It’s an evidentiary hearing, with witnesses subject to cross examination, evidence, and argument. It very much resembles a trial without a jury.
The law currently places the burden on the Defendant to demonstrate his immunity. Jared Bretherick’s attorneys argued this week that the burden should not be on the Defendant, rather it should be up to the state to demonstrate that the Defendant is not immune from prosecution. It’s an interesting procedural argument. For comparison, when a Defendant raises a motion to suppress based on an illegal sesarch or seizure, the burden is on the state to prove that there was legal justification for the intrusion. However, the current procedure has been in effect for a few years now, and the court may choose not to disturb it. It may be several weeks before the court issues a ruling. Bretherick faces prison for the Aggravated Assault charge, but still has a right to fight the case at trial if the appeal is unsuccessful. Ironically, it appears the alleged victim has previously served a prison sentence for a road rage incident.
The lower, District Court ruling can be found here: http://www.5dca.org/Opinions/Opin2013/102813/5D12-3840.op.pdf
Posted in 10-20-Life, 2nd Amendment - Bear Arms, Criminal Law, Florida, Florida Cases, Stand Your Ground, Supreme Court
Tagged asasult, braden robinson, firearms, jared bretherick, kissimmee, self defense, stand your ground
The second jury came back and found Michael Dunn guilty of first degree murder. Michael Dunn, known as the Loud Music Shooter, for because his complaints about the victims playing music too loudly precipitated his shooting of a car full of teenagers. Dunn and Jordan Davis, the 17-year-old he shot, apparently exchanged heated words at a gas station when Dunn pulled out a firearm and began firing. He killed Davis and was charged with first degree murder, and attempted murder for the other three individuals in the car with Davis.
Michael Dunn mug shot
Dunn argued self-defense at trial, saying he thought Davis had a weapon. No weapon was recovered, and Dunn, instead of calling law enforcement, continued on his trip to another city where he stayed in a hotel room. The jury hung on the first degree murder count in the first trial, but convicted him of three counts of attempted murder, which he was sentenced to 20 years each, consecutively, as required by 10/20/Life. The second jury found him guilty at the retrial, and the first degree murder charge mandates a sentence of life in prison without parole under Florida law.
Dunn will assuredly appeal, but it will be difficult to overturn, as the appellate courts do not usually like to disturb a jury’s findings about the credibility of a justifiable use of force defense. All areas of the trial will be examined to determine if there are errors that warrant a new trial.
Oscar Pistorius, the double amputee runner known as the “Blade Runner”, is on trial in South Africa for shooting his girlfriend, model Reeva Steenkamp. He is claiming self-defense, that he thought she was a burglar. He shot her multiple times through the bathroom door. The case was replete with investigative issues by the local law enforcement. Pistorius was living in an exclusive gated community.
The jury is still out in the ‘loud music shooting’ case. They will continue to deliberate, starting today at 9:00 a.m. in addition to the 1st degree murder charge, there are several lesser offenses and attempted murder charges for the other boys in the truck. The first degree murder charge is probably a reach, any premeditation was minimal at best. If the prosecutor tries to oversell the case, they lose credibility on the lesser charges. That may help Dunn’s attorney on his self-defense claim. This is the same prosecutor that overcharged on the George Zimmerman.
Un fortunately, I wil be out of town this weekend, so I may not get to comment right away when the verdict comes in.