Is it just because it is an election year??

NRA, Republicans refute GOP sheriff's stand-your-ground claims

By MARC CAPUTO

A Florida sheriff claimed "stand your ground" essentially prohibited him from making an arrest in a politically charged and racially tinged shooting death, but his fellow Republicans who wrote the law, criminal-court attorneys and even the National Rifle Association are accusing him of misapplying Florida’s self-defense statutes.

In explaining why he didn’t arrest the shooter, Pinellas County Sheriff Bob Gualtieri told reporters on July 20 that his hands were tied because the stand-your-ground law “created a standard, that is a largely subjective standard” for the use of deadly force by a shooter.

Gualtieri also suggested his office could be civilly liable simply for arresting the shooter, and he stressed how Florida lawmakers last year changed the 2005 law concerning immunity from prosecution.

But on each of those three counts — immunity, civil liability and subjectivity — experts say Gualtieri is just wrong.

“Nothing in either the 2005 law or the 2017 law prohibits a Sheriff from making an arrest in a case where a person claims self-defense if there is probable cause that the use of force was unlawful,” said Marion Hammer, Tallahassee’s NRA lobbyist who helped shepherd "stand your ground" through the GOP-led Florida Legislature.

“Nothing in the law says a person can sue the Sheriff for making an arrest when there is probable cause,” Hammer added in an emailed statement to POLITICO.

Hammer said she didn’t want to discuss the facts of the case, only the law. But her decision to publicly dispute Gualtieri’s claims about "stand your ground" underscores how much gun-rights advocates have grown displeased with the sheriff’s statements in the middle of an election year. Democrats are calling for an end to "stand your ground" and say it has racial overtones. Meanwhile, the politics of guns have shifted to the left after the Feb. 14 massacre at Marjory Stoneman Douglas High School in Parkland.

Gualtieri’s decision also puts Gov. Rick Scott in an awkward spot. Scott signed the 2017 stand-your-ground immunity bill that Gualtieri singled out.

Also, Gualtieri is co-hosting a Tuesday fundraiser for Scott’s U.S. Senate campaign in Clearwater — the very city in which Michael Drejka shot Markeis McGlockton dead on July 19. Another co-host of the Scott fundraiser is Pinellas County State Attorney Bernie McCabe, who now has the final say over whether to charge Drejka.

When asked by a reporter last week about Democrats’ calls to end or amend "stand your ground," Scott didn’t answer the question and instead talked about the tragedy and the state’s crime rate.

“We are at a 47-year low in our crime rate. But you hate anything like this happening,” Scott said.

In opting not to arrest Drejka, who is white, in the shooting death of a black man, Gualtieri opened himself up to questions of racial bias, said Benjamin Crump, the attorney representing the mother of McGlockton’s children.

“This was a cold-blooded murder,” Crump told POLITICO. “This is not self defense. And communities of color, the black community, are very emotional about this issue with these stand-your-ground cases.”

The incident occurred at the Circle A convenience store when Drejka confronted McGlockton’s girlfriend for parking in a handicap space. McGlockton left the store, violently shoved Drejka to the ground and approached the fallen man until Drejka pulled his weapon. At that point, McGlockton took about four steps back and appeared to step to the side when Drejka pulled the trigger.

But despite the store’s security camera footage showing McGlockton backing away, Gualtieri made no mention of it during his press conference in announcing his decision not to arrest Drejka.

McGlockton “didn’t turn around and run away real fast. And the guy didn’t do anything and say, 'Hey, man, we’re good,' or something. He didn’t do any of that. So it cuts towards this guy’s belief, in his mind, that he’s going to be harmed again, and he had to shoot to defend himself. And those are the facts. And that’s the law,” Gualtieri said.

“The law on 'stand your ground' is clear,” Gualtieri continued. “The Florida Legislature has created a standard, that is a largely subjective standard. This is not an objective ‘what I would do, what you would do, what the public would do, what somebody else would do?’ This is more of a subjective standard, and the person’s subjective determination of the circumstance they were in.”

But that’s just not true, according to state Sen. Dennis Baxley, a Republican who sponsored "stand your ground" in 2005 when he was in the Florida House. The law clearly says a person using deadly force in self-defense must “reasonably” believe it’s necessary.

“'Stand your ground' uses a reasonable-person standard. It’s not that you were just afraid,” Baxley said. “It’s an objective standard.”

And state Sen. Rob Bradley, who sponsored the 2017 legislation that says authorities must show with “clear and convincing evidence” that there are grounds to prosecute a stand-your-ground defendant, made the same statement: “An individual using a gun in self-defense in Florida must have an objective, reasonable fear of imminent death or serious bodily harm. This idea that Florida law is concerned about the subjective perceptions of a shooter is wrong.”

Like Hammer, Bradley and Baxley said they didn’t want to comment on the facts of the case. Unlike Hammer and Baxley, Bradley is a lawyer and a former prosecutor. Republican state Rep. Bobby Payne, who carried the immunity bill in the Florida House last year, echoed the others but did speak out about the case after reviewing the video.

“Based on what I saw in the video, the assertion of Stand Your Ground was weak, based on the victim's retreat or de-escalation of the event once he saw the gun. No additional fear of great bodily harm or imminent death,” Payne said in a text message to POLITICO. “More investigation is needed and will likely take place. Pursuing the case should be the decision of the State Attorney once received.”

Like the legislators, Hammer does not have a law degree. Gualtieri, however, does, but a spokesman for his agency would not comment on the criticisms of his reading of the law.

Former Broward County prosecutor Fausto Sanchez, now an attorney with Diaz, Reus & Targ in Miami, said Gualtieri was so wrong about the “subjective” standard that he felt the need to double check the statute and case law, which calls the standard “objective.”

Standard jury instructions for these cases, he said, say the defense is appropriate if a “reasonably cautious and prudent person under the same circumstances would have believed that the danger could have been avoided only through the use of that force.” Sanchez said “that’s the objective standard. When the sheriff says he’s taking the shooter’s word for it, that’s incomplete. That’s not the standard.”

What’s more, Sanchez said, the sheriff failed to take into account another part of the self-defense statute that says a person can use or threaten “force, except deadly force” if “the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.”

So, Sanchez said, there’s “unlawful force” and there’s “deadly force,” which is more serious. In the video of the incident, McGlockton clearly committed a battery and therefore used “unlawful force.” But Drejka used “deadly force” as a response — even though McGlockton was backing away. And because McGlockton had stepped back, Drejka was not “reasonably” in fear of great bodily harm or imminent death.

Echoing those comments, Alachua County Public Defender Stacy A. Scott said: “I just don’t agree with the sheriff’s assessment at all. … This is a guess, but I wonder if this is a political tactic on his part because it sounds like he doesn’t like the law.”

Indeed, Gualtieri roped in other aspects of "stand your ground" that have nothing to do with a sheriff deciding an arrest in a self-defense claim.

Gualtieri mentioned the 2017 law concerning a special hearing to determine immunity in stand-your-ground cases. But that’s an issue for a prosecutor, not an arresting agency like the sheriff’s office. So it’s unclear why he raised it.

Also, Gualtieri brought up other statutory language that allows a court to give a defendant court costs, attorney’s fees and compensation for income loss “in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution.” But the operative words here are “civil action by a plaintiff.” It doesn’t apply to a sheriff making an arrest.

In discussing the case with fellow Republicans who are mystified by Gualtieri’s decision, Florida activist Francisco Gonzalez, director of philanthropy for the conservative journalistic think tank National Review Institute, wondered on Twitter: “Is the Sheriff against ‘Stand Your Ground’ and using it as a political ploy? If so, that would be really disgusting. The guy killed a man and should be charged. Let the court decide whether he can use the Stand Your Ground defense.”

Writing in the National Review, conservative columnist David French also quested Gualtieri’s legal reasoning and said that an “armed citizen should not be mall-copping his way through life, initiating confrontations.”

Yet for all of the conservative observations that Gualtieri had a novel interpretation of the law, the sheriff said at his press conference it was clear to him.

“I don't make the law,” Gualtieri said. “I enforce the law.”