The Miami Herald

‘Stand your ground’: a get-out-of-jail-free card

Florida’s “stand your ground” law has allowed drug dealers to avoid murder charges and gang members to walk free. It has stymied prosecutors and confused judges.

It has also served its intended purpose, exonerating dozens of people who were deemed to be legitimately acting in self-defense. Among them: a woman who was choked and beaten by an irate tenant and a man who was threatened in his driveway by a convicted felon.

Seven years since it was passed, Florida’s “stand your ground” law is being invoked with unexpected frequency, in ways no one imagined, to free killers and violent attackers whose self-defense claims seem questionable at best.

The shooting death of Trayvon Martin, an unarmed black teen, by a Hispanic neighborhood watch captain has prompted a renewed look at Florida’s controversial law.

In the most comprehensive effort of its kind, The Tampa Bay Times has identified nearly 200 “stand your ground” cases and their outcomes. Among the findings:

• Those who invoke “stand your ground” to avoid prosecution have been extremely successful. Nearly 70 percent have gone free.

• Defendants claiming “stand your ground” are more likely to prevail if the victim is black. Seventy-three percent of those who killed a black person faced no penalty compared to 59 percent of those who killed a white.

• The number of cases is increasing, largely because defense attorneys are using “stand your ground” in ways state legislators never envisioned. It has been used by a self-described “vampire” in Pinellas County, a Miami man arrested with a single marijuana cigarette, a Fort Myers homeowner who shot a bear and a West Palm Beach jogger who beat a Jack Russell terrier.

• People often go free under “stand your ground” in cases that seem to make a mockery of what lawmakers intended. One man killed two unarmed people and walked out of jail. Another shot a man as he lay on the ground. Others went free after shooting their victims in the back.

• Similar cases can have opposite outcomes.

Claiming “stand your ground,” people have used force to meet force outside an ice cream parlor, on a racquetball court and at a school bus stop. Two-thirds of the defendants used guns, though weapons have included an ice pick, shovel and chair leg.

The oldest defendant was an 81-year-old man; the youngest, a 14-year-old Miami youth who shot someone trying to steal his Jet Ski.

Ed Griffith, a spokesman for the Miami-Dade state attorney’s office, describes “stand your ground” as a “malleable” law being stretched to new limits daily.

“If you’re a defense counsel, you’d be crazy not to use it in any case where it could apply,” said Zachary Weaver, a West Palm Beach lawyer.

Matt Dillon

People have had the right to defend themselves from a threat as far back as English common law. The key in Florida and many other states was that they could not use deadly force if it was reasonably possible to retreat.

That changed in 2005 when Gov. Jeb Bush signed into law Florida Statute 776.013. It says a person “has no duty to retreat and has the right to stand his or her ground” if he or she thinks deadly force is necessary to prevent death, great bodily harm or commission of a forcible felony like robbery.

“Now it’s lawful to stand there like Matt Dillon at high noon, pull the gun and shoot back,” said Bob Dekle, a University of Florida law professor and former prosecutor in North Florida.

Durell Peaden, the former Republican senator from Crestview who sponsored the bill, said the law was never intended for people who put themselves in harm’s way before they started firing. But the criminal justice system has been blind to that intent.

The new law only requires law enforcement and the justice system to ask three questions in self-defense cases: Did the defendant have the right to be there? Was he engaged in a lawful activity? Could he reasonably have been in fear of death or great bodily harm?

Without convincing evidence to the contrary, “stand your ground” protection prevails.

If prosecutors press charges, any defendant claiming self-defense is now entitled to a hearing before a judge. At the immunity hearing, a judge must decide based on the “preponderance of the evidence” whether to grant immunity. That’s a far lower burden than “beyond a reasonable doubt,” the threshold prosecutors must meet at trial.

“It’s a very low standard to prove preponderance,” said Weaver, the West Palm Beach lawyer. “If 51 percent of the evidence supports your claim, you get off.”

The outcome of a “stand your ground” case can turn on many factors: the location of blood spatters, the credibility of witnesses, the relative size and age of the parties involved. But The Times found similar incidents handled in dramatically different ways.

Derrick Hansberry thought John Webster was having an affair with his estranged wife, so he confronted Webster on a basketball court in Dade City in 2005. A fight broke out and Hansberry shot his unarmed rival at least five times, putting him in the hospital for three weeks.

Ultimately, a jury acquitted Hansberry, but not before police and prosecutors weighed in. Neither thought Hansberry could reasonably argue self-defense because he took the gun with him and initiated the confrontation.

A judge agreed, denying him immunity at a hearing.

Compare that case to Deounce Harden’s. In 2006, he showed up at Steven Deon Mitchell’s Jacksonville car wash business and started arguing over a woman. When the fight escalated, Harden shot and killed Mitchell, who was unarmed.

Prosecutors filed no charges.

Similar inconsistencies can be found across the state:

Discrepancies among cases cannot all be explained by small differences in the circumstances. Some are clearly caused by different interpretations of the law.

When Gerald Terrell Jones shot his marijuana dealer in the face in Brandon this year, he was charged with attempted murder and aggravated assault. A jury later acquitted him. But a judge had rejected Jones’ “stand your ground” motion, in part, because he was committing a crime at the time.

Elsewhere in the state, drug dealers have successfully invoked “stand your ground” even though they were in the middle of a deal when the shooting started.

In Daytona Beach, for example, Chief of Police Mike Chitwood used the “stand your ground” law as the rationale for not filing charges in two drug deals that ended in deaths. He said he was prevented from going forward because the accused shooters had permits to carry concealed weapons and they claimed they were defending themselves at the time.

“We’re seeing a good law that’s being abused,” Chitwood told a local paper.

Vague wording

Disparities have been driven in part by vague wording in the 2005 law that has left police, prosecutors and judges struggling to interpret it.

It took five years for the Florida Supreme Court to decide that judges should base immunity decisions on the preponderance of evidence.

Still unresolved is whether a defendant can get immunity if he illegally has a gun. And courts are divided on what the law is when a victim is retreating.

David Heckman of Tampa lost his bid for “stand your ground” protection because his victim was walking away when Heckman shot him.

“We conclude that immunity does not apply because the victim was retreating,” the court said.

But Jimmy Hair, who was sitting in a car when he was attacked, was treated differently. He shot his victim as the man was being pulled from the vehicle. An appeals court gave him immunity.

While many have argued the law does not allow someone to pick a fight and claim immunity, it has been used to do just that. It is broad enough that one judge complained that in a Wild West-type shootout, where everybody is armed, everyone might go free.

Miami-Dade case

Anthony Gonzalez Jr. was part of a 2010 drug deal that went sour when someone threatened him with a gun. Gonzalez chased the man down and killed him during a high-speed gun battle through Miami streets.

Before the “stand your ground” law, Miami-Dade prosecutors would have had a strong murder case because Gonzalez could have retreated instead of chasing the other vehicle.

But Gonzalez’s lawyer argued he had a right to be in his car, was licensed to carry a gun and thought his life was in danger.

Soon after the filing of a “stand your ground” motion, prosecutors agreed to a deal in which Gonzalez pleaded guilty to the lesser charge of manslaughter and got three years in prison.

“This is certainly a very difficult thing to tell a grieving family member,” said Griffith of the Miami-Dade state attorney’s office.

Donald Day is a Naples defense lawyer who has handled three “stand your ground” cases and believes the law is working “remarkably well.”

Day said the immunity hearings are a critical backstop in self-defense cases that should never go to a jury. Of the cases in The Times’ database that have been resolved, 23 percent were dismissed by a judge after an immunity hearing. That means 38 defendants facing the prospect of a jury trial were set free by a judge who ruled the evidence leaned in their favor.

A prime example:

The case of Jorge Saavedra a 14-year-old charged with aggravated manslaughter last year in the death of Dylan Nuno. Saavadra, Day’s client, was in special education classes at Palmetto Ridge High School in Collier County and was often the target of taunts. Nuno, 16, went to the same school.

On Jan. 24, 2011, the two boys were riding the bus home. Saavedra was warned repeatedly that Nuno intended to fight with him when he got off at his regular stop.

Saavedra replied each time that he did not want to fight, but he also pulled out a pocketknife to show friends.

Saavedra got off the bus early with a friend to try to avoid a confrontation. But Nuno and his friends followed, and Nuno punched the younger boy in the back of the head.

For a while, Saavedra kept walking as he was being punched. Then he turned, reached in his pocket for the knife and stabbed Nuno 12 times.

Prosecutors pursued charges despite evidence that Saavedra tried to get away and felt cornered by an older boy and a crowd of teens shouting for a fight. They argued that because he brought a knife to a fistfight, he should be tried for murder.

Without “stand your ground,” Saavedra would likely have gone to trial. But the law required a hearing before a judge and that judge granted him immunity.

Nuno’s mother, Kim Maxwell, said her son made a bad decision to throw the first punch, but she’s incredulous that it led to his death and even more stunned that his killer went free.

Said Day: “You don’t have to wait until you’re dead before you use deadly force.”

Tampa Bay Times researchers Carolyn Edds, Caryn Baird and Natalie Watson contributed to this report. Kris Hundley can be reached at 727-892-2996 or khundley@tampabay.com. Susan Taylor Martin can be reached at 727-893-8642 or susan@tampabay.com.




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