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Prosecutors call Florida's 'Stand Your Ground' law unconstitutional

Argue self-defense claims should go before jury
Posted at 6:05 PM, Oct 31, 2018
and last updated 2019-08-16 14:38:45-04

TAMPA, Fla. – A group of South Florida prosecutors have thrown another wrench into the state’s highly controversial “stand your ground” law. The League of Prosecutors are calling it unconstitutional to force state attorneys to try a self-defense case before a judge and not a jury.

ABC Action News Reporter Kylie McGivern met with the news station’s legal analyst and former county judge Jeff Swartz, to break down what this could mean moving forward.

“All of them are coming forward and saying, ‘I felt threatened. I felt like my life was in danger. That’s why I used my weapon,” Swartz explained, highlighting high-profile cases in Florida.

Two of the cases still playing out in Tampa Bay include Curtis Reeves, a retired Tampa police officer who’s used the stand your ground defense after shooting and killing a man in a Wesley Chapel movie theater in 2014. Reeves is charged with second-degree murder. And Michael Drejka, who shot and killed a man in a parking lot over an argument about a handicapped space in Clearwater. Drejka was charged with manslaughter earlier this year.


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Last year, the burden of proof shifted from the defendant to the state, forcing prosecutors to disprove a claim of self-defense before any jury trial.

"The state should always have the burden of proof in these types of situations," Rep. Jeff Brandes of Pinellas County (R) told ABC Action News last year, in support of changes to the stand your ground law. "The state should always have to prove that you acted outside the law."

Where the League of Prosecutors come in, is they want jurors to weigh in, saying in a briefing filed last week, “There is nothing special or unique about this defense that the common juror cannot understand.”

To Swartz, the argument doesn’t totally make sense, saying, "The state only has a jury has a jury trial when the defendant asks for a jury trial. If the defendant doesn't ask for one, the state can't demand that they get one on their own. That's not the way it works."

Full disclosure, Swartz had concerns about changes to the stand your ground law from the beginning.

Last year, he shared concerns with ABC Action News about the change potentially creating an easier path for someone trying to get away with murder.

"This is what we call downstream consequences. The social policy set by this is really horrible," he said at the time.

Despite his feelings, his take is, “It’s not unconstitutional. It may be wrong as a matter of policy, but it’s not unconstitutional.”

The reason being, he says, is because regardless of what you believe when it comes to the self-defense law, “The Florida Supreme Court cannot overturn a law simply because they think it’s bad public policy.”

“For the guy on the street, if he doesn’t like this law then the legislature has to change it,” Swartz said.

The League of Prosecutors includes Miami-Dade State Attorney Katherine Fernandez Rundle.

ABC Action News reached out to the office of State Attorney Andrew Warren, which covers Hillsborough County, and learned Warren is still reviewing the brief from the League of Prosecutors. But he did provide a statement on the revisions to the stand your ground law from 2017.

"I opposed changing Stand Your Ground because it would significantly disrupt the operation of our criminal justice system and undermine public safety, while doing nothing to protect law-abiding gun owners. Last year’s amendment was an ill-conceived solution in search of a problem that predictably created confusion and gridlock in our courts, which is now wasting taxpayer resources and delaying justice for victims."

The Florida Supreme Court is set to review a case that asks whether the stand your ground law applies retroactively. A spokesperson for the court tells us arguments for the case of Tashara Love v. State of Florida will likely begin next year.