In 2017 Florida amended its Stand Your Ground law to shift the burden, in the pretrial SYG hearing, from the defendant to the prosecution to determine whether a person had a reasonable basis to use deadly force in self defense. This is a fundamental change in Florida’s SYG legislation, which many believe is the most defendant favorable in the US. In 2019 the trial of Michael Drejka, in the shooting death of Markeis McGlockton in a convenience store parking lot, will come to trial. By all accounts this will be a classic SYG case, with all of the preliminary and formal trial attributes that will highlight the current law in Florida. I thought it would be useful to provide a primer on the law, what it includes, and what it doesn’t. People should feel free to debate the Drejka case, but I won’t participate in that debate. Once the case comes to trial, and if it is televised so I can see and hear the same evidence as the jury, I’ll make a prediction of how I think the jury will decide the case.
Using deadly force in self-defense
Let's start at the beginning, when can someone use deadly force in self-defense? Going back to English common law, and In all states, a person may use deadly force to defend themselves if they are facing an imminent risk of “death or great bodily harm”. However, in half of the states there is a qualifier, the person facing harm has a “duty to retreat”, if “a reasonable means of escape or retreat is available”. This requires juries, once determining if a defendant faced sufficient risk to use deadly force, to also then determine if they had a reasonable means of escape. This dilemma for juries led to the concept of Stand Your Ground, which began more than a century ago. A few states such as mine, California, have court implemented (not legislated) stand your ground laws. In CA the courts mandated SYG in the nineteenth century, which has been implemented without any notoriety or debate since. In the view of the CA courts it was unreasonable to try and put a jury in the defendant’s shoes and determine just how easy it would have been to escape the threat, in that moment of fear and high anxiety. I wrote a diary about California’s Stand Your Ground law in 2012 that you can find here:
www.dailykos.com/...
Stand Your Ground
Stand Your Ground, as a legislative initiative of the NRA and ALEC, began in earnest early this century. The initial FL SYG legislation was passed in 2005. Some version of SYG legislation is now in place in approximately half the states. Florida, particularly with its most recent amendments, is thought to have the most defendant favorable Stand Your Ground legislation. How does it work?
FL SYG influences the justice process even before there is an arrest. If the LEOs on scene of a shooting death believe the potential defendant has any SYG claim they will typically not arrest the shooter at that time. That’s because under the SYG law if the person is arrested, and found by the court to have a valid SYG claim, the arresting department is liable for all the economic damages suffered by the defendant including legal fees, loss of income, loss of employment opportunities, and any other verifiable economic losses that the defendant can prove to the court. That’s why we don’t see arrests in these cases until the State Attorney (SA) has brought formal charges. Under SYG the SA does not have any civil liability for indicting the defendant for murder or manslaughter, as long as there is “reasonable cause”.
The legal proceedings of FL SYG start with a pretrial hearing before a judge (no jury), and this is the first major change in Florida’s law. Historically, at the pretrail hearing the defendant had the burden of proof to show why they had a legal SYG claim. This was done by the defense providing evidence supporting the claim, but the most important part of the hearing was the direct testimony of the defendant, which was subject to cross examination by the State Attorney. All of the testimony and evidence from the hearings can later be used at the actual trials. Under the amendment the burden has now shifted to the prosecution, much like an actual trial, so now the SA has to show why the defendant does not have a valid SYG claim with “clear and convincing evidence”. This is a lesser standard for prosecutors than “beyond a reasonable doubt” that would apply during the trial, but basically requires the state to execute two trials, one in front of the judge and a second for a jury. It also gives the defense key information and insight on how to prepare for the jury trial, if the defense loses at the hearing. And while defendants must make a formal written “claim” of self-defense, they no longer have to testify at the pretrial SYG hearing. If the judge rules in favor of defendant the case is over, and is not subject to appeal by the state. The defendant is also granted an immunity from any civil claims by the relatives or estate of the deceased. If the judge rules in favor of the state the defendant can appeal, and if the SYG claim is rejected the case goes to trial.
This is a very good, brief, history of the national SYG movement, and its advocates:
www.nbcnews.com/...
The trial
Once the SYG hearing has passed, and the defendant is brought to trial, the case proceeds as a standard murder/manslaughter versus self-defense trial. The result of the SYG hearing does not negate the self-defense claims of the defendant at trial, and the standard FL jury instructions for murder include the SYG language. At the conclusion of the trial the jury may find the defendant guilty, or not-guilty using either standard self-defense or SYG. The jury is not precluded from using SYG, even though the judge at the hearing ruled otherwise.
Castle Doctrine
Even many states that don’t have a Stand Your Ground law do have some version of the Castle Doctrine, which means that when you are in your home you have no “duty to retreat” before taking defensive measures, which could include the use of deadly force, depending on the threat level at the time. Here is a list of which states have a various SYG and Castle Doctrine laws:
www.ncsl.org/...
In Florida, if the defendant is in their home or car, the law will presume that they had a reasonable fear of imminent death or bodily harm if the alleged victim unlawfully entered a person’s home or vehicle. Because someone can only use deadly force when faced with imminent death or great bodily harm, the SYG statute declares that any intruder in a home, even one that is unarmed, is deemed by law to have the intent to inflict great bodily harm, and therefore can be shot on sight. There was a high profile example of this in a case in Miami where an unarmed teenager was shot and killed while escaping from a home he had entered when the owner rushed home from work, after a warning on her cell phone alerted her to an intruder. She was never prosecuted, or even arrested. Here is a link to that story:
miami.cbslocal.com/…
Racial Bias
There is a clear racial bias regarding the successful use of SYG in the defense of people indicted for murder. A white person accused of murder for the death of a black victim is much more likely to successfully use SYG to avoid prosecution than if a black person kills someone who is white. This is the best research on the topic that I was able to find:
www.sciencedirect.com/...
The Stand Your Ground Statute
The constitutionality of the amended SYG law has been challenged, and upheld by two FL appeals courts, although there is a dispute regarding whether the law should be applied retroactively to cases that preceded the amendments, but had not begun trial. That will likely be decided by the FL Supreme Court. Here is a link to the text of the SYG law, as amended:
www.leg.state.fl.us/...