When Stand Your Ground Meets Blue Lives Matter
What happens when the person you “stand your ground” against turns out to be a police officer trying to do his job?
On August 20, 2015, John Derossett engaged in a forty-round gunfight with plainclothes deputies of the Brevard Sheriff’s Office. They were attempting to arrest Derossett’s adult niece for prostitution following an undercover sting operation; Derossett believed them to be intruders trying to kidnap her. One of the deputies was severely injured but survived. The state charged Derossett with first degree felony attempted murder of a law enforcement officer; Derossett responded that Florida’s Stand Your Ground law afforded him immunity from prosecution. In a remarkable opinion issued just last month, the Florida Court of Appeals held that Derossett was entitled to claim immunity under the Stand Your Ground law.
Florida has some of the most gun-friendly statutes in the country. Among them is its extraordinarily protective Stand Your Ground law. As with many other states, Florida has abandoned the traditional common law obligation to retreat when confronted, and instead allows use of deadly force whenever the person reasonably feels it is necessary to prevent imminent bodily injury or forceable felony, wherever the person happens to be. Florida has also strengthened and codified the traditional “castle doctrine” that permits lethal force to defend one’s home or others therein. The exceptions to this statute include where the defendant knows or reasonably should have known that he was shooting at law enforcement, and where the defendant uses his dwelling to further criminal activity.
Perhaps the most novel feature of Florida’s Stand Your Ground statute is its immunity provisions. Self-defense traditionally has been conceived as a defense to civil or criminal liability. The defendant is charged with a crime or civil wrong, and the defendant produces evidence of self-defense that entitles him to exoneration. In some states the defendant bears the ultimate burden of proof; in others the burden shifts back to the prosecution. But in either case, the process is usually addressed as part of an ordinary criminal proceeding.
Florida has essentially fast-tracked the self-defense determination in its statute. Under the terms of the statute, immunity protects a claimant from criminal charges, conviction, civil liability and even arrest for any use of force deemed covered by Stand Your Ground. Once a defendant makes a prima facie showing of self-defense (an extremely low bar), it is up to the state to show by clear and convincing evidence that the defendant’s gunfire was not justified by Stand Your Ground.
In Derossett, the court immunized the defendant because the police had not demonstrated by clear and convincing evidence either of the two exceptions to Stand Your Ground: that Derossett knew or should have known he was shooting at police officers, or that he was using his house to further prostitution (as opposed to simply being aware that his niece was doing so). Understandably, the police were upset by the conclusion, with a spokesperson for the county reporting to a local news agency: “Our law enforcement officers risk their lives daily to protect our community,” [and] “This ruling adds to that risk by extending protection to those who turn a blind eye to criminal activity, even within their own home.”
Derossett and application of Stand Your Ground against law enforcement is most likely to occur in those fast-paced, split-second scenarios where police do not clearly identify themselves or are not identifiable by their dress or vehicles. In ordinary police encounters, this may not be an issue; but a significant portion of police work today involves sting operations and undercover investigations. No-knock warrants and similar exigent procedures, designed to prevent suspects from escaping or destroying evidence, are already hazardous for police agents. Stand Your Ground may complicate these kinds of law enforcement actions in Florida. To the extent Stand Your Ground also extends its immunity to defense of others, it may also complicate scenarios in which persons, not immediately identifiable as law enforcement (such as plain clothed or off-duty officers) are confronted with deadly force by civilians who mistake the law enforcement official for a criminal. Uncertain is the role of Stand Your Ground when a defendant clearly knows the person is law enforcement, but believes that the officer is about to use imminent and excessive force on the defendant or on others, as I wrote about here.
In general, the law structures encounters between police and civilians to err on the side of police safety and public order. It’s illegal to resist even an unlawful arrest in most states. Many jurisdictions, including Florida, single out violence against law enforcement officials for particular sanction. Fourth Amendment doctrine and criminal law tends to favor law enforcement when there’s some reasonable mistake that leaves civilians dead or injured.
Florida’s Stand Your Ground law, at least in cases like Derossett, may push the needle in the opposite direction. It may offer civilians the benefit of the doubt when they use deadly force against police officers in cases where there’s a mistake or confusion, in a way that the drafters of the law may not have intended.