Gun-toting felons have the same rights as law-abiding citizens to use the Stand Your Ground law to avoid criminal charges, according to a new appeals court ruling.
Reversing an opinion from 2012, the 4th District Court of Appeal said Wednesday a felon from Riviera Beach now can try to get his 2009 aggravated battery with a firearm charge dismissed under the controversial self-defense law.
The ruling for Harvey M. Hill Jr., 23, comes just weeks after the Florida Supreme Court announced it will examine the same issue, but in a different case.
The high court’s review is a result of a petition by another Palm Beach County felon, Brian Bragdon, who wants to use Stand Your Ground to avoid two attempted murder charges from 2012.
The 4th District Court of Appeal last year denied Bragdon, 25, of West Palm Beach, citing its earlier decision against Hill. That opinion concluded Hill had no right to Stand Your Ground because he used a gun.
It’s illegal for felons to possess guns — and part of the Stand Your Ground law says it doesn’t apply to a person “engaged in an unlawful activity.”
But that first Hill opinion conflicted with a 2013 ruling from the 2nd District Court of Appeal, which said a felon in a Lee County second-degree murder case was entitled to use Stand Your Ground to argue he was justified in shooting to protect his life when an assailant pointed two guns at him.
In its decision Wednesday, the 4th District Court of Appeal wrote it now agrees with the 2nd District court.
The new Hill opinion states, “a defendant engaged in an unlawful activity is not necessarily disqualified from seeking self-defense immunity under certain provisions of the ‘Stand Your Ground’ law.”
Specifically, Hill may look to avoid prosecution under a section of the law stating an individual doesn’t have to retreat and can legally use deadly force if the person reasonably believes doing so is necessary “to prevent imminent death.”
Hill claimed on May 27, 2009, he was attacked by two men, one carrying a gun, and was cornered while sitting on his own porch. He shot one of the men during the altercation.
Hill’s appellate attorneys, Amy Lora Rabinowitz and Cherry Grant, could not be reached Wednesday, despite calls to their offices.
The 4th District Court of Appeal also concluded that Bragdon’s challenge, now at the Supreme Court, “may need to [go back to the trial court] for further proceedings.” It’s unclear how the new opinion will impact the high court’s review — intended to resolve the previous conflict in the appellate courts.
Bragdon’s attorney, Jack Fleischman, said he’s encouraged by the new Hill opinion.
“A convicted felon in an emergency can temporarily arm themselves, thus acting ‘lawfully’ to defend themselves or others,” he said.
A convicted cocaine dealer, Bragdon was arrested after an Aug. 4, 2012 confrontation with two men outside a West Palm Beach-area strip club. Fleischman said Bragdon shot at them when he was threatened.