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Sometimes they just don’t like you

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Earlier today I wrapped up representation in another Tallahassee area self-defense case. Being a Florida self-defense case, the law at issue is the dreaded “Four Horseman” of statutory confusion known as the “Stand Your Ground” law.

The “Stand Your Ground” law was enacted by the Florida Legislature in 2005. The law thoroughly modified Florida’s self-defense framework substantively and procedurally. Prior to the enactment of the current scheme, the law was pretty simple in that anyone who reasonably believed that force was necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony was free to act by using force.

Also, Florida used to recognize a common law duty to retreat that required a person to “retreat to the wall” or use “every reasonable means within his or her power to avoid the danger.” This meant that force couldn’t be the first club out of the bag when a “reasonable individual” was confronted with a hostile situation. However; in one’s own residence, no duty to retreat existed. This absence of the duty to retreat in one’s own residence was known by and large as the castle doctrine.

In the substantive arena Stand Your Ground eliminated the duty to retreat. Stand Your Ground also substantively expanded the castle doctrine.

In the procedural context, the reason that Stand Your Ground is unpopular with Florida prosecutors is that Stand Your Ground created an immunity from prosecution which allowed trial judges (gasp!) to evaluate a defendant’s self-defense claim prior to a jury. The most upsetting aspect of Stand Your Ground to Florida prosecutors (even those with robes) is that the law checks the prosecutor’s ability to simply charge folks they don’t like.

In the olden days, Florida prosecutors could charge at will and take the case through to a jury for a resolution. Stand Your Ground checks the prosecutors previously unbridled discretion to charge unpopular people with violent crimes and then control the process up to the start of jury deliberations.

Stand Your Ground is more significant procedurally than substantively. Prosecutors have a long tradition of charging and prosecuting people who they simply don’t like. Following the enactment of Stand Your Ground – the prosecution has continued this tradition and now bristles at the procedural hurdle imposed.

Despite the existence of Stand Your Ground; the charging/prosecution of clearly innocent/immune defendants continues:

In the Tallahassee case of Jimmy Lee Hair (not involved) the State Attorney charged Hair with first degree murder for shooting a man who was forcibly entering a car in which Hair was a lawful passenger. The dead man’s forcible entry was occurring after unfriendly exchanges between the man and Hair as well as Hair’s companion at a Tallahassee nightclub (and crime hub). Despite even the pre-Stand Your Ground law which was clear that force is appropriate in order to prevent the imminent commission of a forcible felony (like burglary of an occupied conveyance with person assaulted); the Office of the State Attorney had Hair indicted for first degree murder and held in jail. Presumably the Office of the State Attorney thought pre and post Stand Your Ground law did not apply to Mr. Hair and that someone lawfully seated in a vehicle should talk to an assailant who forces his way in – perhaps to explain mutual feelings. Hair eventually won his case (it took an appellate court) but he spent a good while incarcerated. As Mr. Hair could tell you – sometimes they (the State) just doesn’t like you…

Aaron Little was walking down a street when he was confronted by an assailant who was wielding two firearms. Little ran from the man into a nearby home (without an invitation). The assailant approached the front door of the home and remained on the porch steps. Little, hiding in the home, was then ordered to leave the home by the homeowner after he retrieved a concealed firearm which he had been carrying. After exiting the home per the homeowner’s commands, Little held his firearm behind his back and was again confronted by his assailant while in the home’s yard. In the yard, the assailant eventually raised his two firearms and pointed them at Little. Little shot the doubly-armed gunman (killing him) and fled. Little, maybe be the most aggrieved person to use force in the history of Florida law, was arrested and charged. No matter what individuals can argue as to Florida’s Stand Your Ground law – one would assume we could all agree that we have the right to defend ourselves from unprovoked attacks by hostile individuals who wield two guns.

Undeterred, the Office of the State Attorney in the Twentieth Circuit charged Little with Second Degree Murder (hey – not first degree). When the trial court (former Assistant State Attorney) denied Little immunity under even the new, Stand Your Ground scheme – the Second District stepped in and discharged Little’s case. Once again the Stand Your Ground procedural avenue thwarted the State’s attempt to prosecute an individual, Little, who the Office of the State Attorney just did not like.

Gabriel Mobley went to dinner at a Chili’s restaurant in Miami Dade County. Mobley was accompanied by his boss and a number of female employees. Mobley and his boss left the restaurant to smoke and returned to find two unknown men had occupied their seats and were talking to the female co-workers. When Mobley asked for his seat back, a confrontation ensued. Things settled down with Mobley acting as a peacemaker between his boss and the group of men who had taken their seats. Upon leaving the restaurant however; Mobley and his boss were attacked by the two men who had waited outside in order to confront them. The attack and subsequent events were captured on a video tape and the facts are essentially undisputed. The two strangers fractured Mobley’s boss’ eye socket and then approached Mobley. Mobley used his lawfully owned and concealed firearm to shoot both of the attackers. The entire attack and shooting lasted 12 seconds. Mobley waited at the scene, cooperated with law enforcement and informed police that he was armed. The Office of the State Attorney in the Eleventh Circuit charged Mobley with two counts of second degree murder. After enduring incarceration and a hearing on the matter; it took an appeals court decision to determine that Mobley acted in accordance with Florida’s Stand Your Ground framework and was immune from prosecution.

As Gabriel Mobley could probably tell you; sometimes the State just likes to charge folks it “doesn’t like” and (attempt to) proceed to trial.

Prior to Stand Your Ground, all three of these cases would have had to proceed all the way to and through a jury trial before any outside actor had agency in the State’s prosecution. Following the enactment of Stand Your Ground – all three of these defendants were afforded a pre-trial hearing (although unsuccessful) and were allowed a procedural escape from the oppression of “prosecutorial discretion” which stood between them and a full jury trial. Despite the deep and fundamental changes in Florida self-defense law following the enactment of Stand Your Ground; the State just can’t quit charging people it just doesn’t like.

The most fundamentally important aspect of Stand Your Ground is not the substantive expansion of the self-defense concept. The most important aspect is the procedural revolution in which Florida voters decided that the State was no longer to be trusted in its prosecutorial discretion. The trial judge has been invited into the process in a unique and meaningful way. Florida voters, through the Florida Legislature, have decided they just don’t like ad hoc prosecutions. This represents a foundational change more stark and with broader implications than the substantive statutory language.

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