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ATTACKING “STAND YOUR GROUND” ON ALL FRONTS

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I think it’s fair to say that most prosecutors are not fond of Florida’s “Stand Your Ground” law.  The law provides statutory immunity to individuals who claim they were justified in using force.  As far as self-defense statutes go; the law is reported to be relatively broad when compared to similar provisions in other jurisdictions.  The law limits ad-hoc prosecutions based on an individual prosecutor’s idea about “what should have happened.”  Making life altering (for others) judgments from afar is what… well it’s what prosecutors do.  And prosecutors certainly do not care for the pesky Florida Legislature putting any hurdles in front of their unfettered power to prosecute at will.     

I personally like the law.  I think that people who use violence against others should be willing to accept that they might die doing so.  I think that Floridians should be entitled to protect themselves without worrying that some unknown, assistant prosecutor will decide later that “what should have happened” was something less forceful.  I feel like the law cuts down on the ad-hoc nature of self-defense prosecutions which existed in Florida prior to its enactment.

The law also seems to be very popular with the voting public.  Even after one particularly misunderstood trial; ‘SYG’ has stood in the face of concerted efforts seeking alteration or repeal.  These concerted efforts were spearheaded by both misguided “concerned citizens” as well as prosecution groups.  The actual voting citizens seem to want some objective framework for the use of force.  The voters do not want to face an amorphous and shifting set of judgments from unknown assistant prosecutors after they spontaneously use force.  Prosecutors will argue that they only charge the “bad guys” and that the “good guys” will be protected by their inherent prosecutorial expertise in making decisions on a case-by-case basis.  Floridians lived under such an arrangement for many years and have taken decisive action to leave such a nebulous dynamic in the rear view mirror.

However, prosecutors seem to be working to weaken the law outside of the legislative system.  The Supreme Court Committee on Standard Jury Instructions in Criminal Cases has issued a proposed jury instruction which would expand instances in which SYG (or any other claim of self-defense) would be unavailable.  The Committee, which is composed of a strong prosecution contingent, is seeking to disallow a claim of self-defense where the trial judge (presumably at the urging of the State) merely finds some evidence that a defendant was engaged in a felony when he/she used force.  Standard jury instructions in criminal cases are probably the most ignored area of criminal reform.  The instructions are crucial in criminal trials.  They are central to the decision making of both the trial judge and the jury.

The proposed revision to Instruction 3.6(f) modifies the language of the “forcible felony instruction.”  The “forcible felony instruction” precludes certain defendants from claiming self-defense.  Over the years, the “forcible felony instruction” has been a source of significant confusion/debate in Florida self-defense litigation. See generally Martinez v. State, 981 So. 2d 449 (Fla. 2008).  The “forcible felony instruction” comes from the language of Fla. Stat. § 776.041(1) which precludes a claim of self-defense by an individual who “is attempting to commit, committing, or escaping after the commission of, a forcible felony.”

Chief Judge Schwarts’ dissent in McGahee v. State, 600 So. 2d 9 (Fla. 3d DCA 1992) best describes the appropriate scenario in which a jury may be instructed as to the forcible felony exception to a self-defense claim:

But the statute[1] applies only when the person claiming self-defense is engaged in another, independent“forcible felony” at the time.  Thus an armed robber cannot claim that he shot the intended victim in justifiably defending himself from an armed attack by the victim himself.  Section 776.041(1) plainly doesnot apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense.

McGahee, 600 So. 2d at 11. (internal citations omitted).

Prior versions of Instruction 3.6(f) required that the independent, forcible felony be charged by the government. In re Standard Jury Instructions In Criminal Cases (No.2005–4), 930 So. 2d 612, 614 (Fla. 2006) relying on Giles v. State, 831 So. 2d 1263 (Fla. 4th DCA 2002).  However, the proposed revised Instruction 3.6(f) would eliminate the requirement that the independent, forcible felony be charged.  No longer would the State be required to actually charge the independent forcible felony, instead the trial judge could merely claim that he/she found evidence that the defendant was committing the independent forcible felony.  Such a finding could provide the basis of completely precluding the defendant’s reliance on a self-defense claim.  The proposed instruction, as written, would allow for a mid-trial attack on a claim of self-defense without any prior notice to a defendant.

A more fair arrangement would be to require the State charge the independent, forcible felony which would put the defense on notice that any claim of self-defense might be completely thwarted.  As proposed, the revisions to Instructions 3.6(f) and (g) would allow the prosecutor to charge a case, proceed to trial and torpedo a self-defense claim with no notice to the criminal defense lawyer.  Prosecutors will surly claim this would only happen to “bad guys” who do not deserve any sympathy in the first place.  They’ll claim that their expertise will prevent “good guys” from being hurt by the potential pit falls of the instruction.  However the Florida Supreme Court should take action to require an actual charged, independent, forcible felony.  The voters in Florida have rejected the prosecution’s “expertise” and they deserve the objective guidelines for prosecution which they have demanded.


[1] Referring to Fla. Stat. § 776.041.

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