By: Tahimi Magrans, Member-Candidate, J.D. Candidate, May 2020, St. Thomas University School of Law.

The highly criticized “Stand Your Ground Law” is up to the Florida Supreme Court. However, the question before the Court is not whether it is constitutional but whether it applies to cases retroactively that were pending at the time the statute became effective.

The law came under national spotlight when a young black man, Markeis McGlockton, was shot dead by a white man, Michael Drejka, in front of McGlockton’s family. Mr. MacGlockton’s five-year-old son witnessed his dad collapsing in front of the gas station counter after being shot by Drejka. After a month of this tragic event, authorities charged Drejka with manslaughter. A first pre-trial hearing was set for October 19, 2018.

Drejka had to establish, in a pretrial immunity hearing, a prima facie case of self-defense immunity to stand trial by preponderance of the evidence. This immunity comes from the recently amended Florida Statute 776.032 which states that:

“In a criminal prosecution, once a prima facie claim of self-defense immunity from
criminal prosecution has been raised by the defendant at a pretrial immunity
hearing, the burden of proof by clear and convincing evidence is on the party
seeking to overcome the immunity from criminal prosecution provided in
subsection (1). In order to establish a prima facie case of self-defense immunity, a defendant must prove by preponderance of the evidence, that he or she:

1) was attacked in a place where he or she had a right to be, (2) was not engaged in any unlawful activity, and (3) reasonably believes it is necessary to use force to prevent death or great bodily harm.

When a defendant establishes a prima facie case of self-defense immunity, then the burden of proof will shift to the prosecution to prove by a clear and convincing standard that a reasonable
person in the defendant’s circumstances would not have used deadly force. The amended law, however, raised the prosecution’s burden of proof from a preponderance of the evidence to a clear and convincing evidence standard. Drejka argued that he was pushed to the floor by McGlockton at a gas station, certainly a place where he had a right to be, and that he was not engaged in any unlawful activity. Let’s ask ourselves if a reasonable person in Drejka’s shoes would have found it necessary to use deadly force to prevent great bodily harm.