The unintended consequences spawned by the vague and amorphous “Stand Your Ground” law passed in 2005 by the Florida legislature are not lost on state prosecutors. Palm Beach State Attorney Michael Michael McAuliffe told me, via e-mail:Our office has been acutely aware of the unintended consequences of applying the “Stand your ground” law. Although we have not experienced any pre-trial dismissals of cases due to this law, we have been forced to spend significant time and resources litigating defense motions which, in essence, seek court ordered immunity for defendants charged with violent crimes. We believe that these are almost always issues for a jury comprised of members of the community to decide.
In 2007, our office prosecuted defendant Robert Smiley for first-degree murder with a firearm. The sole disputed issue was self-defense. The defense attorney filed a motion for pre-trial dismissal based on the “Stand Your Ground” law. In that case, the 4th DCA ruled that the issue of duty to retreat should be decided by a jury because the “Stand Your Ground” law was not in effect at the time the case was commenced. Our office moved forward with the prosecution. Subsequently, the factual matters of self-defense were hotly debated between the jury members and they were unable to reach a verdict. Our office chose to re-try the case. Again, a jury was unable to reach a verdict. (Ultimately the defendant entered a guilty to manslaughter pursuant to a plea agreement). The confusion that can surround the “Stand Your Ground” law makes for difficult hurdles even in cases where we have violent, aggressive conduct. The law has the great potential to be misapplied and could well protect violent criminals in specific cases.
Palm Beach homicide prosecutor Kirk Volker of the Major Violent Crimes Division, with similar reservations, wrote:I have had two trials (a manslaughter case and a first degree murder case) where the "stand your ground" law was argued by the defense and where special jury instructions were created for its use. In each case, the state had to argue that it was not reasonable for the defendant to believe that the deadly force used by the defendant was necessary in order to prevent death or great bodily harm to himself, or to prevent the commission of a forcible felony. It is much easier to nullify this defense if it can be shown that the defendant was engaged in an unlawful activity at the time that he used deadly force, in which case, it can be argued that he is not entitled to the "stand your ground" instruction. In the manslaughter case, there was unlawful activity. In the murder case, there was not.
If any other contemporaneous crime has been committed by the defendant, including possession of a firearm by a convicted felon, it should be charged in the same charging document. Otherwise, the state will waive the right to argue that the defendant was engaged in unlawful activity at the time in question, and thus, not entitled to the benefit of the stand your ground instruction.
In a close case, the new instruction can be very difficult for the state to overcome. In the two cases that I tried, the defendants went way beyond what was reasonable under the circumstances, in their use of deadly force, and so, the instruction did not end up being too difficult for the state to overcome.