Florida Justices Delve into Stand Your Ground Change

Two years after lawmakers approved a controversial change to the state’s “stand your ground” self-defense law, the Florida Supreme Court on Wednesday heard arguments about whether the change should apply to a woman charged in a shooting incident outside a Miami-Dade County nightclub.

The defendant, Tashara Love, was charged in 2015, but her case remained pending when lawmakers changed the “stand your ground” law in 2017. The issue before the Supreme Court centers on whether the revised law should apply to Love’s case — and potentially other cases that began before 2017.

The outcome is important, in part, because the 2017 law shifted a key burden of proof in “stand your ground” cases from defendants to prosecutors. That shift could make it easier for at least some defendants to avoid prosecution in cases in which they argue they acted in self-defense.

The 3rd District Court of Appeal, which hears cases from Miami-Dade County, ruled against Love and said the 2017 change should not apply to her case. But the 2nd District Court of Appeal took the opposite position in a Hillsborough County “stand your ground” case.

State Solicitor General Amit Agarwal argued that the 2017 change should not apply to Love and pointed to far-reaching impacts of the legislation.

“The (2017) law changes the who, the what and the how with respect to establishing a claim of complete immunity from criminal prosecution,” Agarwal said. “The substantive right that is affected by this amendment is what this court (in precedent from another case) identified as a substantive right to immunity, not from criminal liability but from criminal prosecution.”

Lawmakers approved the change after the Supreme Court in 2015 ruled that defendants had the burden of proof to show they were entitled to immunity under the “stand your ground” law. That ruling, in a case involving defendant Jared Bretherick, who was involved in a traffic altercation in Central Florida, spurred a debate that led lawmakers to shift the burden of proof in the 2017 law.

Jeffrey DeSousa, an attorney for Love, argued Wednesday that the 2017 change was “procedural” in nature and, as a result, should be applied to Love’s case.

“On top of that is the fact that these legislators clearly believed that what they were doing was adopting corrective legislation, the purpose of which was to effectively put criminal defendants in the position that they would have been in but for this court’s decision in Bretherick,” DeSousa said. “And the only way to give full effect to that legislative policy determination would be to apply this new law to cases like Miss Love’s.”

Justices asked numerous questions of Agarwal and DeSousa, but the court typically takes months before ruling in such cases.

The “stand your ground” law says people are justified in using deadly force and do not have a “duty to retreat” if they believe it is necessary to prevent death or great bodily harm. When the defense is successfully raised in pre-trial hearings, defendants are granted immunity from prosecution. The issue in the 2017 law focused on the burden of proof in those pre-trial hearings.