By Noreen Marcus, FloridaBulldog.org
The Florida Supreme Court is reviewing a souped-up version of the controversial “Stand Your Ground’’ law, and the court may use it to reopen thousands of criminal cases.
But while Florida prosecutors and gun-control activists are challenging the self-defense law’s bona fides, saying it’s unconstitutional, the justices probably won’t rule on that basic issue in Tashara Love v. State.
Attorney General Pam Bondi, for one, doesn’t want them to. Lawyers who work for her argue the NRA-backed law is constitutional, but it doesn’t apply to Love or others whose cases were pending on June 9, 2017, the effective date of the updated law, just to cases filed afterwards.
The state’s top law enforcer is supposed to defend state laws, as Bondi’s team is doing. Still, it’s bizarre to see prosecutors on one side, and the Attorney General’s Office on the other, said Adam Skaggs, chief counsel at Giffords Law Center to Prevent Gun Violence.
The new law Skaggs calls “Stand Your Ground on steroids” puts the burden on the state to prove a negative, that the defendant who claims fear drove him or her to use deadly force isn’t telling the truth. If the state can’t prove this to the trial judge’s satisfaction, the defendant wins immunity from prosecution.
“Here, basically, the Attorney General is agreeing with the defendant that the law is permissible,” Skaggs said. “It’s a curious case because usually in a court proceeding, you have the other side saying no, no, I disagree.”
Giffords is one of several non-parties that have stepped into the case as amici, or friends, to offer perspectives on the law’s validity and reach. Among others are Everytown for Gun Safety, Unified Sportsmen of Florida, the NRA Freedom Action Foundation, and prosecutors’ and public defenders’ associations.
They care about this Florida case because the outcome will reverberate nationally. The National Rifle Association, which supported the original SYG law in 2005 and last year’s version, uses Florida as a testing ground to expand gun rights. Meanwhile, outfits like Giffords try to rein in expansion to serve gun-control goals.
“As a policy matter, the concern is that this could spread like wildfire and be taken up in other states,” Skaggs said of the prospect that the self-defense law will survive the court challenge in the Tashara Love case.
Since none of those advocacy groups are technically part of the case, the high court doesn’t have to consider their views. The justices do, however, listen to the parties. Love’s lawyer, Assistant Public Defender Jeffrey DeSousa, says nothing in his brief about the new SYG law’s validity. The attorney general argues the law is valid, but the court should focus only on whether it covers cases already in the pipeline on the effective date.
“This Court did not grant review to decide that [constitutional] question, neither party has raised the issue in this Court, the lower courts are not divided on that question, both parties now agree that the amendment is constitutional…and this Court should not be asked to resolve any such constitutional question in the absence of full adversarial briefing,” Florida Solicitor General Amit Agarwal, a Bondi lieutenant, wrote in his brief.
Miami-Dade State Attorney Katherine Fernandez Rundle, whose office has the Love case, agrees with the League of Prosecutors — Florida that the law is defective, and that applying it to pending SYG cases would be costly to the criminal justice system.
“Although it is unknown how many cases retroactivity would affect, a reasonable number around the state could potentially be in the thousands,” Penny Brill wrote for the league.
Rundle asked for permission to sign onto Brill’s amicus brief. The court had not responded as of Monday.
“I want them to know I’m consistent,” Rundle said in an interview. The longtime chief prosecutor took up the SYG opponents’ chant — “it’s the Wild West!” — when the Legislature passed the original measure 13 years ago. Since then her hostility has intensified.
Rundle said she’s seen her line prosecutors foiled time and again by defendants who discover after the fact they were only protecting themselves or loved ones when they shot or hit an unarmed “attacker.” She’s watched cases involving fatalities, aggravated assault and domestic violence fly out the courthouse window.
Victims feel ‘cheated’
“The real sad part is the victims’ families. They feel cheated, like they haven’t had a day in court,” Rundle said. Because the immunity decision belongs to the judge–not the jury–”the families feel like they’ve been shortchanged,” she said. “Everything else goes to a jury, but not this issue? He just shot and killed my loved one.”
Last year’s changes made overcoming SYG immunity much harder, Rundle said. If the facts against self-defense are overwhelming, like when someone is shot in the back or shot repeatedly, “We’re going to win that. But on the close cases, we’re losing them.”
And the defendant doesn’t even have to appear in court, but can merely claim fear of harm in a pleading. It’s up to the prosecution to make a strong case against SYG, Rundle said. “He never has to raise his right hand and swear under oath, ‘This is why I shot Mr. X.’ For us, it’s like putting on a whole trial before you have to put the trial on.”
In the Love case, a 2015 nightclub fight ended with a woman shooting a man who, she said, was about to hit her daughter. The man survived, and Tashara Love was charged with attempted second-degree murder with a firearm.
Miami-Dade Circuit Judge Alan Fine ruled after a hearing that Love wasn’t entitled to SYG immunity, and the Third District Court of Appeal agreed. Fine found the law unconstitutional yet, somehow, retroactive. The appellate court decided the law was constitutional but wouldn’t apply it to a 2015 incident.
So far, the Love case has played out like SYG statewide: It’s all over the place. “You’ve got a patchwork of decisions coming out of the different courts,” Rundle said. On similar facts, a defendant in one Florida circuit could win immunity, while a defendant in another circuit could lose.
Political wild cards
The Florida Supreme Court is all about instructing lower courts in the uniform application of criminal laws, as it’s expected to do in the Love case. The justices will be operating against a head-spinning backdrop of politics complicated by timing.
The case has not yet been scheduled for oral argument, pushing its conclusion into next year. By then the three most liberal members of the court will have retired and been replaced. Who the new justices will be, how liberal or conservative, is anyone’s guess.
The argument about the law’s validity turns on whether it violates separation of powers because the Legislature, not the judiciary, changed an important element of how self-defense is proven, or disproven. A conservative court tends to defer to the Legislature, but SYG opponents are counting on the court’s interest in preserving its own prerogatives.
Then there’s the question of who will pick the next three justices. Florida’s gubernatorial race is undergoing a recount. so it could be some time before Democrat Andrew Gillum or Republican Ron DeSantis claims the office. There’s little doubt Gillum and DeSantis would pick different kinds of justices.
No matter who’s running state government, though, the new attorney general will be Ashley Moody, a Republican ally of Bondi and, like her, a SYG proponent. Perhaps the only predictable aspect of the Love court battle is that Moody’s office will stay the course set by Bondi. Sean Shaw, Moody’s opponent, said he would work to repeal SYG.
“The entire political universe is important to note here,” said Skaggs, the Giffords counsel. “Election results can play into the resolution of this way more than a run-of-the-mill case would be affected.”