Florida's Prosecutors: Stand Your Ground Law Unconstitutional
By David Ovalle
Miami Herald
October 31, 2018
MIAMI — A South Florida organization of prosecutors that includes Miami-Dade State Attorney Katherine Fernandez Rundle is telling the Florida Supreme Court that the latest version of the state’s controversial “Stand Your Ground” self-defense law is unconstitutional.
The League of Prosecutors, in newly filed court documents, asked justices to strike down the law because it unlawfully forces state attorneys to try cases involving self-defense claims before a judge, not a jury. “There is nothing specialized or unique about this defense that the common juror cannot understand,” according to the brief filed late Friday.
Fernandez Rundle, the longtime elected top prosecutor in Miami-Dade, also filed a brief joining in the effort — the first state attorney to break with Attorney General Pam Bondi, whose office is defending the broadened “Stand Your Ground” law passed by the Florida Legislature last year.
The Florida Supreme Court is set to review issues surrounding the law, which was first passed in 2005 amid much controversy. The law, passed with high-profile backing of the powerful National Rifle Association, eliminated a citizen’s duty to retreat before using deadly force to counter a threat.
Critics have long said that the law creates a culture of vigilante gun violence and allows criminals to skate on claims of self-defense. The law is opposed by many in law enforcement
The law has repeatedly become a social and political flash point. In 2012, police cited the law in initially not arresting a neighborhood watchman in the shooting death of Miami Gardens teenager Trayvon Martin, a case that sparked racial tensions and scrutiny on the state’s self-defense law. The gunman, George Zimmerman, was later charged but acquitted by a Seminole County jury.
Most recently, controversy erupted over the killing of Markeis McGlockton in Clearwater. Though not armed with a weapon, he was gunned down after pushing a man during a fight that started over a parking space. Pinellas County’s sheriff cited the law in not initially arresting the killer, Michael Drejka, although prosecutors later charged him with second-degree murder.
Also, Florida’s self-defense law will likely play a central role in the case of former Lakeland city commissioner Michael Dunn, who was indicted this month in the fatal shooting of a shoplifter who was trying to escape his store.
Most vexing for prosecutors, the law allowed for judges an easier path to grant “immunity” for someone they deem to be acting in self-defense. Over the years, judges in Miami have thrown out murder cases in a number of high-profile cases, including a man who shot another man as both cowered from the sound of gunfire outside a barbershop.
For years, it was the burden of the defendant to prove to a judge that he or she acted in self-defense.
But last year, Florida lawmakers changed the law, forcing prosecutors to shoulder the burden of disproving a defendant’s claim of self-defense in a hearing before any jury trial takes place. Prosecutors must prove by “clear and convincing” evidence that someone was not acting in self-defense.
At the time, prosecutors and many police departments opposed the measure. It passed anyway.
Since then, a slew of cases in court have challenged the new law, and whether it applies to incidents that happened before it went into effect. Two Miami judges ruled that Florida lawmakers overstepped their authority in crafting the law. One of those cases has now made its way to the Florida Supreme Court.
The accused: Tashara Love, who is charged with attempted murder in the shooting of a man outside a Miami strip club in 2015. In May, Miami-Dade’s Third District Court of Appeal ruled that the broadened self-defense law is constitutional but that it does not apply to cases that happened before the law went into effect.
Love’s case before the Florida Supreme Court is being closely watched.
The NRA has chimed into the court fight, saying the law is constitutional and was passed for the “protection of innocent lives and the fundamental right of self-defense.” Two prominent gun-control groups, Everytown for Gun Safety and The Brady Center to Prevent Gun Violence, say the law “makes it harder to prosecute those who perpetrate gun violence, and ultimately encourages the unlawful and reckless use of firearms.”
Enter the League of Prosecutors, a Miami organization of current and former local prosecutors formed to educate the public about criminal justice issues, mentor assistant state attorneys and promote “judicial excellence.”
The group is distinct from the Florida Prosecuting Attorneys Association, a lobbying group that represents state attorneys. The FPAA opposed the change in the law before it was passed, but has not weighed in on Love’s case.
The passing of the law violated the separation of powers between the Legislature and elected prosecutors, wrote Penny Brill, the now-retired head of the Miami-Dade State Attorney’s legal bureau who is representing the league pro bono.
“The Legislature cannot waive the state’s right to a jury trial in a criminal case,” Brill wrote.
The Miami-Dade State Attorney’s Office on Friday filed paperwork asking the Florida Supreme Court for permission to appear before the court to adopt the league’s position. Bondi’s office is objecting to Fernandez Rundle’s move, according to court documents.
So far, no other state attorneys have sought to enter the legal fray.
Responding to the Miami Herald, the office of Broward State Attorney Michael Satz said it is “reviewing the matter.” A spokesman for Palm Beach State Attorney Dave Aronberg said he “agrees with State Attorney Rundle and LOP on the recent changes to the Stand Your Ground law” and suggested he may join in.
Monroe State Attorney Dennis Ward declined to comment, referring comment to the FPAA, which did not return comment Monday.
Andrew Warren, the state attorney in Tampa, said he is still reviewing the league’s filings. He said he remains against the change in the law.
“I opposed changing Stand Your Ground because it would significantly disrupt the operation of our criminal justice system and undermine public safety, while doing nothing to protect law-abiding gun owners,” he said in a statement. “Last year’s amendment was an ill-conceived solution in search of a problem that predictably created confusion and gridlock in our courts, which is now wasting taxpayer resources and delaying justice for victims.”
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