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February 17, 2017 Articles

Stand Your Ground: Should Its Coverage Be Broadened or Is It Too Broad Already?

Courts are wrestling with the application of the law.

By David Schoen

In 2005, Florida was the first state in the country to pass a “Stand Your Ground” law. Since then, states across the country have followed suit with some variations. Florida’s initiative and those in states around the country have been promoted by a variety of groups, with the National Rifle Association providing the most organized and vocal support.

At the outset, Stand Your Ground flowed from the principle that one should have no duty to retreat when facing the imminent threat of deadly force from an intruder in his or her home. Stand Your Ground provides a complete defense to any criminal charge that otherwise would arise from the use of deadly force by the person who responded to such a threat with deadly force. Since 2005, the application of Stand Your Ground has been expanded well beyond the home, creating a “no duty to retreat” and a complete defense to the use of deadly force in a variety of settings. Additionally, under Florida law, a person who successfully invokes Stand Your Ground can recover damages from his or her arrest and any prosecution and has immunity from a civil suit in state court by statute, although some Florida courts have questioned the breadth of the immunity from civil suit. This broadened application has been the subject of controversy in all arenas, including among law-enforcement professionals.

On February 7, 2017, the New York Times ran a story about a woman in Florida who reportedly had been the victim of ongoing abuse from her husband. One day when the abusive husband returned home, unarmed and with their son standing next to him, the woman drew a gun and shot at her husband. She attempted to use Stand Your Ground to defend her actions; but the judge rejected its application. She ultimately was convicted in the shooting and spent several years in prison.

The story reports that other abuse victims and some state lawmakers have taken up the cause and are demanding a broadening of the application of the Stand Your Ground defense as well as a shifting of the burden away from requiring the defendant to prove that he or she acted in self-defense. Under proposed legislation, once a defendant simply invokes Stand Your Ground, the burden would be on the prosecution to prove the inapplicability of the defense.

But, not so fast. Is a broadening of this complete defense and a shifting of the burden warranted? A comprehensive study by a Stand Your Ground Task Force commissioned by the American Bar Association reports some very troubling facts and statistics that should at least give real pause.

The ABA’s National Task Force on Stand Your Ground made a comprehensive survey of the law in all 50 states and took evidence over the course of many months, including live testimony and the review of voluminous documents related to the use of Stand Your Ground.

In no uncertain terms, the task force concluded that the evidence surrounding Stand Your Ground from the field, after a decade of experience, demonstrates clear patterns of racial discrimination in its application. In short, African American victims who attempt to invoke Stand Your Ground to defend against criminal charges arising from their use of force are far less likely than Caucasian defendants. Additionally, when the victim is African American, a defendant invoking Stand Your Ground is far more likely to receive its benefit. Related findings by the task force include a palpable fear among African Americans that Stand Your Ground, as applied, increases the likelihood that they will be shooting victims with the shooter unfairly getting the benefit of Stand Your Ground simply by virtue of societal stereotypes and prejudices. The task force also found other related problems that it felt demanded a far less broad application of the defense.

When Stand Your Ground first was enacted in Florida, the judge considering the pretrial invocation of Stand Your Ground had to reject the defense if there was a factual dispute, and the question of self-defense would be for the jury to decide. That no longer is the case. Part of the broadening of Stand Your Ground in Florida—the result of the decision of the Florida Supreme Court in Dennis v. State, a 2010 case—has been that a judge alone is now allowed to make findings of fact, previously left to a jury, to decide whether the defendant can avoid prosecution altogether. This is a significant development. Consider the following example.

On July 31, 2013, Broward County Florida sheriff’s deputy Peter Peraza shot and killed a young African American IT engineer named Jermaine McBean, who was walking to his apartment with an unloaded air gun he had just bought at a pawn shop down the street and was carrying across his shoulders behind his head. The deputy claimed that the young man lowered his unloaded air gun and pointed it at him. Civilian eyewitnesses at the scene expressly contradicted the deputy’s testimony, as did the forensic evidence. For the first time in 30 years, and after 168 shootings of civilians by law-enforcement officers in Broward County, a Broward County grand jury indicted Peraza for the homicide of Jermaine McBean, completely rejecting his claim of self-defense and the irreconcilable accounts by his colleagues.

Notwithstanding Florida appellate-court decisions that have held that law-enforcement officers cannot use Stand Your Ground as a defense because they enjoy immunity specific to their position as law-enforcement officers, Peraza invoked Stand Your Ground. The trial-court judge dismissed all charges against the deputy based on his invocation of Stand Your Ground.

Last month, the Florida attorney general filed its brief on appeal urging the appellate court to reject the trial judge’s action as contrary to settled Florida law that holds that Stand Your Ground cannot be applied in such a situation. The case is due to be heard later this year. The Broward County Sheriff has been a vocal opponent of expanding Stand Your Ground beyond the application for which it originally was intended—codifying the principle of no duty to retreat in one’s home.

This is but one example of the ways in which courts are now wrestling with the application of Stand Your Ground. Only time will tell how the law will develop in each state. The ABA Stand Your Ground Task Force’s comprehensive report and recommendation should be required reading for every judge and every legislator called upon to consider the law’s application.

David Schoen is a solo practitioner in Montgomery, Alabama.

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