By Kris Hundley, Susan Taylor Martin and Connie Humburg, Times Staff Writers
In Print: Sunday, June 3, 2012
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 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.
Cases with similar facts show surprising — sometimes shocking — differences in outcomes. If you claim “stand your ground” as the reason you shot someone, what happens to you can depend less on the merits of the case than on who you are, whom you kill and where your case is decided.
Today, 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” casesand their outcomes. The Times identified cases through media reports, court records and dozens of interviews with prosecutors and defense attorneys across the state.
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. The defense has been invoked in dozens of cases with minor or no injuries. It has also 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. Anothershot a man as he lay on the ground. Others went free after shooting their victims in the back. In nearly a third of the cases the Times analyzed, defendants initiated the fight, shot an unarmed person or pursued their victim — and still went free.
• Similar cases can have opposite outcomes. Depending on who decided their cases, some drug dealers claiming self-defense have gone to prison while others have been set free. The same holds true for killers who left a fight, only to arm themselves and return. Shoot someone from your doorway? Fire on a fleeing burglar? Your case can swing on different interpretations of the law by prosecutors, judge or jury.
• A comprehensive analysis of “stand your ground” decisions is all but impossible. When police and prosecutors decide not to press charges, they don’t always keep records showing how they reached their decisions. And no one keeps track of how many “stand your ground” motions have been filed or their 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.
“It’s arising now in the oddest of places,” he said.
That’s unlikely to change any time soon, according to prosecutors and defense attorneys, who say the number and types of cases are sure to rise.
“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. “With the more publicity the law gets, the more individuals will get off.”
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 theTimes 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 carwash 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:
• During an argument at a 2009 party in Fort Myers, Omar Bonilla fired his gun into the ground and beat Demarro Battle, then went inside and gave the gun to a friend. If Battle feared for his life, he had time to flee. Instead, he got a gun from his car and returned to shoot Bonilla three times, including once in the back. Battle was not charged in the slaying.
At another party in the same town five months later, Reginald Etienne and Joshua Sands were arguing. Etienne left the party and returned with a knife. During a fistfight between the two men, Etienne fatally stabbed Sands. He was sent to prison for life.
• In Winter Springs, Owen Eugene Whitlock came home on Christmas Eve 2009 to find his daughter’s boyfriend, Jose Ramirez, angrily stalking up his driveway, flexing his muscles and swinging his fists. Whitlock stood his ground and fired a fatal shot. He was not charged.
In Clearwater, Terry Tyrone Davis shot and killed his cousin as he stalked up the walkway of Davis’ home in 2010 with a group of friends. “There’s no doubt he was going over there to kick his a–,” Circuit Judge Philip J. Federico said, “but that does not allow you to kill a guy.” Davis is now serving 25 years in prison.
• In West Palm Beach, Christopher Cote started pounding on the door of neighbor Jose Tapanes at 4 a.m. after an argument over Cote’s dog. Tapanes stepped outside and fired his shotgun twice, killing Cote. A jury acquitted him, but prosecutors and a judge had discounted Tapanes’ self-defense claim, saying if he was truly afraid for his life, he should not have stepped outside.
Yet Rhonda Eubanks was not arrested or charged when she opened her front door one evening in 2006 and fatally shot a man who had been causing a ruckus in her Escambia County neighborhood. He had tried to get into her house, then left and tried to take her neighbors’ cars. When he returned, Eubanks stood near her doorway and fired as he approached.
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, police Chief 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.
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 in Tallahassee, was treated differently. He shot his victim as the man was being pulled from the vehicle. An appeals court gave immunity to Hair, saying: “The statute makes no exception from immunity when the victim is in retreat at the time the defensive force is employed.”
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.
“Each individual on each side of the exchange of gunfire can claim self-defense,” Leon County Circuit Judge Terry P. Lewis wrote in 2010, saying it “could conceivably result in all persons who exchanged gunfire on a public street being immune from prosecution.”
Lewis was considering immunity motions stemming from a Tallahassee gang shooting that resulted in the death of one of the participants, a 15-year-old boy.
The judge said he had no choice but to grant immunity to two men who fired the AK-47 responsible for the death even though they fired 25 to 30 times outside an apartment complex. The reason: It could not be proved they fired first.
Whatever lawmakers’ expectations, “stand your ground” arguments have resulted in freedom or reduced sentences for some unlikely defendants.
• An 18-year-old felon, convicted of cocaine and weapons charges, shot and wounded a neighbor in the stomach, then fled the scene and was involved in another nonfatal shootout two days later, according to police. He was granted immunity in the first shooting.
• Two men fell into the water while fighting on a dock. When one started climbing out of the water, the other shot him in the back of the head, killing him. He was acquitted after arguing “stand your ground.”
• A Seventh-day Adventist was acting erratically, doing cartwheels through an apartment complex parking lot, pounding on cars and apartment windows and setting off alarms. A tenant who felt threatened by the man’s behavior shot and killed him. He was not charged.
• A Citrus County man in a longstanding dispute with a neighbor shot and killed the man one night in 2009. He was not charged even though a witness and the location of two bullet wounds showed the victim was turning to leave when he was shot.
Even chasing and killing someone over a drug buy can be considered standing your ground.
Anthony Gonzalez Jr. was part of a 2010 drug deal that went sour when someone threatened Gonzalez with a gun. Gonzalez chased the man down and killed him during a high-speed gunbattle 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.
“The limitations imposed on us by the ‘stand your ground’ laws made it impossible for any prosecutor to pursue murder charges,” Griffith of the Miami-Dade State Attorney’s Office said at the time. “This is certainly a very difficult thing to tell a grieving family member.”
Increase in cases
If there’s one thing on which critics and supporters agree, it is that the “stand your ground” law is being applied in a growing number of cases, including misdemeanors. That trend is reflected in the Times‘ database, with a five-fold increase in nonfatal cases from 2008 to 2011.
Meanwhile, the number of fatalities in which “stand your ground” played a role dropped from a peak of 24 cases in 2009 to half that number in 2011.
The nearly 200 cases found by the Times include most of the high-profile homicides in which the law is invoked.
Uncovering minor cases in which defendants argue “stand your ground” is more difficult. When asked by the Times, public defenders in Pinellas, Pasco and Hillsborough counties came up with a total of 60 “stand your ground” motions filed by their offices in recent years.
In Miami-Dade County, officials tried to count all the “stand your ground” motions filed in the past year. Their best estimate: 50.
If those counties are any indication, several hundred defendants
are now invoking the law annually.
Its expanded use comes at a cost to the court system.
In April, a hearing on whether William Siskos should get immunity for killing his girlfriend’s husband included the all-day use of a Brooksville courtroom, a judge, a public defender, two prosecutors, clerks and bailiffs and an expert witness who was paid $750 an hour.
The judge denied the motion and the case is pending.
“The court system is overburdened enough without having a bunch of expensive, unnecessary, time-consuming hearings on stand your ground,” said Dekle, the University of Florida professor.
Argument for success
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.
“Where the defendant is clearly in the right and gets arrested, should you have to take your chance with what six people believe or don’t believe?” Day said. “Judges are denying these motions where they should be denied and granting them in the limited number of cases statewide where they should be granted.”
A prime example, he said, is the case of his client, Jorge Saavedra, a 14-year-old charged with aggravated manslaughter last year in the death of Dylan Nuno.
Saavedra 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.”
As “stand your ground” claims have increased, so too has the number of Floridians with guns. Concealed weapons permits now stand at 1.1 million, three times as many as in 2005 when the law was passed.
“I think the (stand your ground) law has an emboldening effect. All of a sudden, you’re a tough guy and can be aggressive,” said George Kirkham, a professor emeritus at Florida State University who has worked as a police officer.
Criminologists say that when people with guns get the message they have a right to stand and fight, rather than retreat, the threshold for using that gun goes down. All too often, Bruce Bartlett, chief assistant state attorney for Pinellas-Pasco counties, sees the result.
“I see cases where I’ll think, ‘This person didn’t really need to kill that person but the law, as it is written, justifies their action,’ ” Bartlett said about incidents that his office decides not to prosecute due to “stand your ground.” “It may be legally within the boundaries. But at the end of the day, was it really necessary?”
Times researchers Carolyn Edds, Caryn Baird and Natalie Watson contributed to this report. Kris Hundley can be reached at (727) 892-2996 or [email protected] Susan Taylor Martin can be reached at (727) 893-8642 or [email protected]
About the story
Source of date
The Tampa Bay Times used published newspaper reports, police reports, court records and documents obtained from selected prosecutors and defense attorneys to compile a partial list of self-defense cases in Florida since 2005. Although this list likely contains most fatalities in which “stand your ground” was invoked, it does not include scores of less serious cases from around the state.
Not all self-defense cases were considered. The Times included 118 cases in which a “stand your ground” immunity hearing before a judge was requested. In the majority of the remaining cases, a law enforcement official, prosecutor or defense attorney invoked the law. The Times also included 29 cases where circumstances appeared to reflect the Legislature’s intent when it passed the law. For example, if a defendant claiming self-defense could have retreated from a confrontation but chose not to, the case was classified as “stand your ground.”
Home invasion robberies and other cases that clearly would have been self-defense under previous law were not included unless a “stand your ground” immunity motion was filed. If a case occurred on the defendant’s property but outside the home, it was included if the defendant could have retreated inside the home.
Race and ethnicity
The race and ethnicity of victims and defendants were compiled from various sources, including police reports and driver’s license records. Police and sheriff’s offices often consider Hispanics as an ethnic group and record their race as white or black. As a result, some Hispanics may be counted in their race category in the Times’ calculations.
Some cases may have changed significantly since the original media reports as a result of further investigation or court events. As a result, some summaries may be incomplete or contain outdated information.
Some cases are still pending and no determination of guilt has been made. If you have information about any factual errors in a summary, or about further developments in a case, please contact Connie Humburg at [email protected]
Florida’s ‘stand your ground’ law
In 2005, Florida legislators made it easier to claim self-defense by rewriting the law so that a person “has no duty to retreat and has the right to stand his or her ground.” Here’s how it works:
• Anyone who is not engaged in illegal activity and is in a place where he or she has the right to be can claim self-defense in using violence against another. Police cannot arrest someone with a reasonable claim. No arrest does not mean a person will never be charged, but it can affect how thoroughly police investigate.
• In most homicides, prosecutors review case details and decide whether charges should be filed. In self-defense cases, prosecutors will not charge if they feel they cannot refute the person’s assertion of self-defense. Once a charge is filed, the case moves into the court system.
• The law requires a judge to hold a “stand your ground” immunity hearing if the defendant asks for one. At that hearing, prosecutors must convince a judge there is enough evidence to go forward to trial. If they fail, a judge can grant immunity from prosecution. Either side can appeal a judge’s decision.
• If immunity is denied, defendants can seek a plea agreement or take their chances at trial, where they can still argue they had the right to stand their ground. Judges give jurors detailed instructions, saying they cannot convict just because a defendant did not retreat or because he or she killed an unarmed victim.