Dear Editor,
The shooting death of 17-year-old
Trayvon Martin by a neighborhood watch volunteer,
who has claimed self-defense, has prompted
a reappraisal of Florida's controversial "Stand Your
Ground" law, which states that a person is immune
from prosecution and is justified in using deadly
force if "he or she reasonably believes that such force
is necessary to prevent imminent death or great
bodily harm to himself or herself or another or to
prevent the imminent commission of a forcible
felony." The "Stand Your Ground" law is so-named
because it eliminates the previous longstanding duty
to retreat before a person resorts to deadly force.
The person claiming immunity under the law must
prove by a preponderance of the evidence--i.e., it
was likelier than not--that he or she used deadly
force to prevent imminent death or great bodily
harm.
Whatever the investigation of the Trayvon Martin
killing ultimately reveals, Florida prosecutors have
opposed the "Stand Your Ground" law since its inception.
When the law was enacted in 2005, its proponents
claimed it was needed to shield law-abiding
citizens who defended themselves from unprovoked
attacks. On its face, this sounds like a sensible and
laudable goal. Prosecutors know all too well, however,
that laws designed to protect the innocent are
often used by the guilty to shield themselves from
justice. The "Stand Your Ground" law is a prime
example of this unintended consequence.
No one would dispute that a law-abiding homeowner
should be able to use force to resist a home
invasion robbery without the specter of criminal
prosecution. This type of scenario is likely what the
legislature had in mind when it enacted the "Stand
Your Ground" law. But even before the statute was
adopted, the law permitted a person in this situation
to defend himself without having to retreat. And in
clear cases of justifiable self-defense, police and prosecutors
have traditionally exercised their discretion
and declined to file criminal charges. The central
flaw with the "Stand Your Ground" statute as it exists
is that people engaged in criminal activity benefit
to the same degree as the law-abiding. For example,
drug deals sometimes go bad when a buyer tries to
rob the dealer. Under the statute, the dealer is entitled
to stand his ground, use deadly force in self-defense,
and claim immunity. This probably isn't what
the legislature had in mind. In homicide cases, the
practical problem for the prosecution in opposing
these motions is that the person who is in the best
(and sometimes the only) position to refute a claim
of immunity--the victim--is dead and therefore
obviously unable to testify. Unless other witnesses
or physical evidence exists to rebut the immunity
claim, all a person has to do is to falsely claim he or
she was attacked by the deceased. And the burden
of proof--preponderance of the evidence--is a far
lower threshold than the beyond a reasonable doubt
standard that is the norm in criminal cases.
As a matter of separation of powers, it is the
legislature's prerogative to enact the laws it sees fit,
and it is the State Attorney's duty to enforce those
laws, however wise or unwise those laws might be.
Having said that, my recommendation to the legislature
is that the "Stand Your Ground" law should
be repealed because of its negative unintended
consequences. It does little for the law-abiding and
allows the guilty to seek--and sometimes obtain--
immunity for their violent crimes. For decades, the
criminal justice system has been able to identify
legitimate claims of self-defense and treat them
accordingly, without allowing those persons with
unclean hands to reap the undeserved windfall
of immunity. But if the legislature is unwilling
to repeal the law outright, I recommend that the
"Stand Your Ground" law be changed to exclude
from its protection those who are engaged in
criminal activities. Furthermore, I would require
that a person claiming immunity prove their
entitlement to it by clear and convincing evidence
rather than by a preponderance. Those changes
would go a long way toward preventing the guilty
from unjustly obtaining immunity and escaping
justice for their crimes.
Dennis Ward,
Monroe County State Attorney
