Stand-Your-Ground and the Florida Governor’s Race

Florida is at the forefront of the national debate on gun rights, and it has been for a long while. It led the nation with its “shall issue” concealed-carry reform in 1987 under Governor Bob Martinez. Today, approximately 10 percent of adult Floridians have a concealed carry permit.

While the claims Florida would turn into the Wild West never materialized, George Zimmerman’s racially charged shooting of Trayvon Martin galvanized Florida and the nation in 2012. Those who called for Zimmerman’s head frequently blamed the situation on Florida’s “stand your ground” law. His defenders saw an upside-down universe of double standards, fake news, and results-oriented charges of racism.

Following the Zimmerman trial, stand-your-ground has been invoked imprecisely and often by critics in the wake of every self-defense shooting, particularly when there is a racial dimension. The law, in fact, has little to do with most of them. To understand the impact of the 2005 law, we need to consider Florida’s previous self-defense laws, which were rooted in the principles of the English common law.

Self-Defense Always Requires Reasonable Fear
Both before and after 2005, Florida law allowed self-defense through deadly force in a very limited number of situations. It had to be necessary in the eyes of a reasonable person, and deadly force could only be used to defend one’s life, to prevent great bodily harm, or to prevent a “forcible felony.” Then as now, the person claiming self-defense could not be the aggressor. Deadly force could not be used only to defend property. And, prior to 2005, there was a duty to retreat if doing so could be accomplished in safety. There was a limited permission not to retreat when defending oneself in one’s home, an exception derived from the strong Anglo-American tradition that a “man’s home is his castle.”

Florida treated self-defense as an affirmative defense, for which the defendant had to, at the very least, meet a “burden of production” before the matter could be submitted to the jury. Once the question was before the jury, however, the prosecutor had to disprove the defense beyond a reasonable doubt.

Disputed questions of self-defense can be very high stakes indeed. Under the legacy system, a prosecutor would be within his rights to proceed to trial if he thought there was a chance the jury wouldn’t agree with claim of self-defense by the defendant, who faced life without parole as the penalty for first degree murder. Even a defendant with an irrefutable claim of self-defense would remain in suspense until the very end. Of course, the costs of an adequate legal defense could prove ruinously expensive even in a successful case.

The Stand Your Ground Law
The 2005 stand-your-ground amendments made two significant changes to Florida law. First, the duty to retreat was no longer mandated in public spaces. In this regard, Florida now stands with the majority of other states, which have adopted what are alternately called “stand your ground” or “true man” modifications to the common law treatment of self-defense.

Abolishing the retreat requirement is uniquely American. While other legal systems, including English common law, conceive of self-defense as a nod to extreme necessity, the American legal regime reflects our frontier heritage of rugged individualism. In this view, there is a moral dimension to affirming the rights of the law-abiding to enjoy their freedom, help themselves, and prevent the bad guys from getting away.

There are also practical reasons to do away with the retreat requirement. Florida previously didn’t require retreat when it could not be accomplished safety, but whether it’s ever safe to retreat is subject to a great deal of uncertainty and interpretation. As then state representative Dennis Braxley argued at the time in favor of the bill, retreating is a “good way to get shot in the back.”

In defending its own variation of “stand-your-ground,” the Nevada Supreme Court summarized the matter this way:

First, we note that a rule requiring a non-aggressor to retreat confers a benefit on the aggressor and a detriment on the non-aggressor. Second, it is often quite difficult for a jury to determine whether a person should reasonably believe that he may retreat from a violent attack in complete safety. Thus, a rule which requires a non-aggressor to retreat may confuse the jury and lead to inconsistent verdicts. We believe that a simpler rule will lead to more just verdicts.

While often invoked to discredit the stand-your-ground law, George Zimmerman’s right of deadly force only came into being when his head was being bashed into the ground by Travyon Martin. He claimed, and the jury agreed, that he was reasonably at that moment in fear of great bodily harm. His screams and the large gash on the back of his head—shown at trial, but rarely shown in the media—made this pretty plain. Zimmerman had no opportunity to retreat at that point, and had no duty to retreat prior to the assault. No law prevented Zimmerman from following or talking to Martin or walking around his own neighborhood, and such noncriminal behavior is allowed everywhere.

Self-Defense Immunity
The second aspect of the 2005 stand-your-ground bill is somewhat unique to Florida; the law allows a pretrial immunity hearing to protect a defendant that proffers evidence of a prima facie self-defense claim to the court. Under the immunity standards, law enforcement agencies risk having to pay the defendant’s attorneys’ fees in the case of an arrest where such immunity is invoked successfully.

This procedure gives defendants invoking self-defense two bites at the apple. They can prove to a judge that they engaged in self-defense, unless the prosecutor successfully shows with “clear and convincing” evidence that it can refute the claim. Even if this immunity hearing is unsuccessful, the prosecutor still must prove their case—including disproving self-defense—beyond a reasonable doubt to a jury.

Surprisingly, Zimmerman’s defense team never bothered to invoke this procedure, even though it would have provided a basis for an appeal and also would have revealed the prosecution’s main strategy in advance of the ultimate trial.

So both aspects of stand your ground—the removal of the duty to retreat and the provision of a pretrial immunity hearing—were completely absent from the Trayvon Martin stand-your-ground cause celebre.

Stand-Your-Ground Has Become a Political Litmus Test
Stand-your-ground is likely to be an issue in the 2018 Florida governor’s race. Trump-endorsed Republican candidate Ron DeSantis is a strong Second Amendment supporter. Democrat Andrew Gillum, following the trendy causes of “gun safety” and racial justice, has stated that he thinks the stand-your ground-law should be repealed.

Both candidates have recent cases to lend strength to their appeals. Just a few weeks ago, in a case out of Lakeland, Florida, an Uber driver, who was very skilled in using his firearm, took out a drunk, aggressive guy who attacked him. The sheriff said—not quite accurately—that it was a classic “stand your ground” case. Here, there was no time or means of retreat; you can see the video here. It was, more accurately, a classic “self-defense” case, but the doctrinal confusion over stand your ground is apparently universal.

For opponents of the law, a truly sketchy use of force by Michael Drejka in Clearwater led to a delay in prosecution by the Pinellas County Sheriff. The sheriff said his hands were tied by the prospect of liability if he made an inappropriate arrest. Activists including Al Sharpton and Benjamin Crump descended on the community, claiming stand your ground was a “racist, Jim Crow” law. The victim was an unarmed black man, Markeis McGlockton. While McGlockton shoved the shooter to the ground, Drejka’s use of force in responding appears disproportionate. Other facts suggest that the shooter was a hothead, itching for confrontation. Nonetheless, retreat does not seem to be an issue. In spite of the brief delay by the sheriff, the prosecutor’s office eventually chose to prosecute the matter. Many gun-rights supporters—including me—feel no strong need to weigh in on this particular incident, which seems gratuitous and sketchy under the law.

The media and people uneasy with the idea of self-defense in general invoke stand-your-ground all the time.  Activists contend the law is racist, but it’s not exactly clear why; after all, black defenders can invoke the same right to stand their ground and engage in self-defense against white aggressors. Media misreporting of stand-your-ground likely also fuels some confusion by the gun-owning public, who should be reminded that deadly force is appropriate only in life-and-death situations.

When combined with Florida’s liberal concealed-carry laws, stand-your-ground is, however, a nod to the rights of citizens and victims in a world where crime, lawlessness, and uncertainty have increased. This is particularly so since the crime wave of the 1970s and 1980s, when more and more law-abiding people wondered if courts were completely out of touch with their apparent indifference to citizens’ concerns for safety, autonomy, and a level playing field with the criminal class.

Florida represents the front lines of the culture war. It combines a native southern citizenry with a great many transplants, who sometimes have the progressive values of New York or New Jersey or the foreign countries whence they came. You see much of this cultural divide among the parents of Parkland High School, and in the gulf between the more culturally Southern Panhandle and the rest of Florida. Gun control and self-defense law go to the heart of whether Florida will give up historic freedoms in a quest for safety or empower ordinary citizens to take care of themselves.

Jeffrey Snyder, in his excellent essay,  “A Nation of Cowards,” summed up the matter succinctly: “As the Founding Fathers knew well, a government that does not trust its honest, law-abiding, taxpaying citizens with the means of self-defense is not itself worthy of trust. Laws disarming honest citizens proclaim that the government is the master, not the servant, of the people.”

Whether the issue is health care, stand-your-ground, or gun control, the fundamental question in the governor’s race is whether Florida aims to be a self-governing people whose government is its servant or the reverse. In other words, the chief issue in this contest—as it was in the contest between Trump and Hillary Clinton—is fundamentally one of what kind of country we are and aim to be.

Photo Credit: Yegor Aleyev\TASS via Getty Images

About Christopher Roach

Christopher Roach is an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

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