By Noreen Marcus, FloridaBulldog.org
Sometimes footnotes hold treasures. Or they may contain dynamite, like the one in a ruling the Florida Supreme Court released Thursday.
Footnote 3 of the opinion in Tashara Love v. State blows off a challenge to a law that seems to violate basic, textbook criminal procedure.
Defendants usually have to prove their own defenses. But that’s not how a 2017 addition to the controversial Stand Your Ground law works.
The updated law burdens prosecutors with proving this negative beyond a reasonable doubt: Fear was not necessarily the reason a defendant used deadly force for self-defense. If the prosecutor fails this tough test, the defendant wins immunity from prosecution.
Adam Skaggs, chief counsel of the Giffords Law Center to Prevent Gun Violence, has called the 2017 law “Stand Your Ground on steroids.” Before the Supreme Court ruled, he said he hoped the case would not empower gun-rights supporters.
“Our concern is that just as Florida was the lab for more permissive regulations of concealed [weapons] carry, and that spread across the country, and Stand Your Ground, which has spread, the gun lobby will again promote this across the country,” Skaggs said.
Court ignores friends’ advice
Florida’s League of Prosecutors and gun-control advocates tried to convince the conservative high court to defy the Legislature by declaring the law unconstitutional. But the league and its allies were amici, or, friends of the court–not parties–so the justices could easily ignore their argument and focus narrowly on how far back the law should go to reopen old Stand Your Ground (SYG) cases.
The parties had their own reasons for not challenging the SYG defense. Love’s lawyer wanted to use it on her behalf; the state Attorney General’s office tends to defend legislation, and its Republican bosses have no problem with this pro-gun law.
As Footnote 3 put it, since the law’s validity wasn’t directly in front of the court, “We thus do not address this issue,” Chief Justice Charles Canady wrote for the panel. Under their unanimous interpretation, Love won a new immunity hearing. The court reversed the Third District Court of Appeal, which had ruled against her.
Concluding a highly technical analysis, the Supreme Court drew a bright line of June 9, 2017, the law’s effective date, for redoing immunity hearings to incorporate the 2017 SYG test. Any hearings held prior to that date stand. No one knows how many cases must be reopened.
Florida legislators showed their loyalty to the National Rifle Association when they passed the original Stand Your Ground law in 2005. It allows residents to use deadly force if they “reasonably believe” they’re being threatened in a public space, just as in their homes. No longer must they retreat; if they act in self-defense, they’re safe from prosecution and civil liability.
Then lawyers for wannabe cop George Zimmerman successfully used a SYG defense after he shot and killed an unarmed teenager named Trayvon Martin and started a commotion that continues to this day.
Court to prosecutor: Don’t speak
Miami-Dade State Attorney Katherine Fernandez Rundle and other prosecutors have watched solid cases crumble and victims’ families suffer in the face of shaky self-defense claims. Trial judges across the state have applied the law so many different ways, defendants can be immunized in one courtroom and convicted in another on similar facts.
Rundle’s office charged Tashara Love with attempted second-degree murder after a 2015 nightclub shooting. Love claims the man she shot was about to hit her daughter.
When the case got to the Supreme Court, Rundle asked to sign onto the League of Prosecutors’ brief, but the court turned her down. Perhaps the justices didn’t like the optics of ignoring the prosecutor in the matter they were deciding.
After Thursday’s ruling, Rundle did not respond to a Florida Bulldog question about her request. In a November 2018 interview, she said, “I want them [the justices] to know I’m consistent.”
The 2017 law makes overcoming SYG immunity much harder, Rundle said. If the facts against self-defense are overwhelming—for example, when the victim suffered repeated gunshots—“We’re going to win that. But on the close cases, we’re losing them.’’