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BSO Deputy Uses Stand Your Ground Defense in Off-Duty Shooting

Suspended BSO deputy Kevin McClernon is facing charges of Aggravated Battery with a Firearm following an incident where he shot a man named Michael Hinsch in the leg.  If convicted, Deputy McClernon faces a maximum sentence of 15 years in prison for the charge.

Does his case present a “Stand Your Ground” defense?  Was the use of lethal force justified?  Should Deputy McClernon enjoy immunity from prosecution?  In this article we explain Florida’s Stand Your Ground law and how it applies in court.

The Facts

According to news reports, Dep. McClernon was visiting a female friend when the woman’s boyfriend walked into the apartment and saw McClernon buttoning his pants.  In a Motion to Dismiss filed by Dep. McClernon’s lawyers, McClernon claims that he was dressed in uniform when visiting a friend, Lori Babb, who he claims was going to give him a haircut before working an off-duty detail.

To make a long story short, Babb’s boyfriend, Michael Hinsch, entered the apartment and got into an argument with Babb when he saw McClenon there.  At one point, Hinsch allegedly armed himself with a knife, causing Babb to run from the apartment.  Hinsch then put the knife in the sink.  However, Hinsch then told Dep. McClernon “I’m going to fuck you up” and reached for the knife.  Dep. McClernon claims he then shot Hinsch in the leg.

According to Hinsch, Dep. McClernon shot him in the left leg “for no reason.”

A criminal investigation was then launched that involved the Broward State Attorneys Office.  Rather than make a case filing decision themselves, prosecutors presented the case to a Grand Jury.  On March 4, 2015, a Grand Jury returned an Indictment, charging Dep. McClernon with 1) Aggravated Battery; 2) Using a Firearm While Under the Influence of Alcoholic Beverages; 3) and Culpable Negligence.

Florida’s Stand Your Ground Law

Because many of you are idiots and some of you are legit criminals, let me begin by saying this:  Do not rely on what I am saying here to kill another person.  That is on you.  

The purpose of this article is to discuss some of the general concepts behind Stand Your Ground Law – it is not intended to give you specific legal advice or a pass to be used in any particular case.  Go do your own legal research and figure out for yourself if your conduct is permitted or unlawful… Not only can I be mistaken, but the law is ever changing and so is its interpretation by the appellate courts.

That said, Florida’s Stand Your Ground law is probably one of the most hotly debated laws on the books. People who are critics of the law claim it creates a free for all where armed citizens can fire off their guns like a scene out of the Wild West. However, this is very far from the truth.

Stand Your Ground law has three distinct hallmarks:  First, it is not a defense to be used at trial.  Instead, it provides immunity from prosecution.  Immunity means you cannot be prosecuted.

Second, Stand Your Ground law only applies to threats of imminent death or great bodily harm.

Third, Stand Your Ground law eliminates the duty to retreat, given certain circumstances, before one is allowed to use deadly force to defend against a threat of imminent death or great bodily harm.

In reality, the use of deadly force is limited to very few occasions.

According to Fl. Stat. §776.012, a person is justified in the use of deadly force and does not have a duty to retreat if, 1) she/he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to her/himself or another person; or 2) as permitted in §776.013.

According to Fl. Stat. §776.013, a person is presumed to have a reasonable fear of imminent danger of death or great bodily harm to her/himself or another person when using deadly force against an attacker, when the attacker was in the process of unlawfully and forcefully entering, or had already unlawfully and forcefully entered, a dwelling, residence, or occupied vehicle and the defender knew (or had reason to believe) that the attacker was in the process of gaining such entry or had already gained such entry.

While this is article is not intended to be a dissertation that covers every conceivable instance where Stand Your Ground may or may not apply, there are some cases where I know for a fact you cannot rely on Stand Your Ground for immunity from prosecution. For instance, you cannot benefit from Stand Your Ground during the commission of  crime or if you are in a place where you don’t belong.

Legal Analysis

In this case, Dep. McClernon must necessarily claim that he used lethal force to protect himself from Hinsch’s knife attack.  Since a knife attach can result in death or great bodily harm, Dep. McClernon would be justified in his use of deadly force under these conditions – if his version of events is the accepted version of events.

However, like most criminal cases, this matter does not present a question of law, but rather a question of fact.

This case has two sides.  On the one hand, you have Dep. McClernon who claims Hinsch threatened him while reaching for the knife.  Of course, McClernon also shot Hinsch in the leg at close range when he could have shot him in the chest or head.

On the other hand, you have Hinsch who claims that Dep. McClernon shot him “for no reason.”

When a criminal defendant like McClernon claims immunity from Stand Your Ground law, the court has a legal duty to conduct an evidentiary hearing to determine if the immunity exists.  During this hearing, prosecutors will present evidence, usually testimony, to prove that the immunity does not exist.

To that end, prosecutors will necessarily have to present Michael Hinsch’s testimony.  Hinsch will be subject to cross-examination by defense lawyers and to questioning by the Court.

At the same time, McClernon will have the opportunity to tell his side of the story.

In deciding which version of events is the true one, Court must apply a “preponderance of the evidence” standard when weighing the evidence to make factual findings as opposed to a “beyond a reasonable doubt” standard.  In other words, the defendant must only tip the scale ever so slightly in his favor to win. Additionally, the Court must also apply an “objective, reasonable person” standard based on the circumstances as they appeared to the defendant when he acted, to determine if the use of force is justifiable.

The judge will also listen to other eye witness testimony, such as Lori Babb’s testimony, to see if it corroborates or contradicts the other evidence presented. Even though she was not present, the Court can still compare other aspect of her testimony to the versions of events told by McClernon and Hinsch to see if they corroborate in other respects.

One of the most prominent features of the evidence will also be Hinsch’s finger prints on a kitchen knife.

This last point is interesting and can go in many directions.  At first glance it seems to support McClernon’s claim. However, were Hinsch’s finger prints on other utensils? What about other parts of the kitchen or the rest of the apartment? If he is Lori Babb’s boyfriend and has visited that apartment many times in the recent past, his fingerprints may be everywhere, thus negating the importance of finding them on a knife.

Also, is the knife the kind of knife that can be used in a threatening manner.  Is it a butter knife, a cleaver, or a steak knife? What are we talking about?

I will say its going to be a funny thing to watch a prosecutor argue against the incriminating nature of fingerprints on a weapon, lol!

Finally, the judge will apply simple common sense.  As he watches the testimony, does one witness seem more credible than the other? Does one person’s story make sense or make no sense at all? Is there any conflict in the evidence? Is there any lack of evidence?

Final Thoughts

Here’s the one thing they don’t teach in law school and the one thing you can’t read in a statute book: Your Judge is human too. One of the main considerations any judge will have will be if he/she wishes to be the person who sets someone free in a gun case where a person was actually shot. While it has happened before and will happen again, deciding Stand Your Ground motions are tough.

The implications are huge.  Either a case will proceed in the courts, likely to trial, or it will come to an immediate halt and the accused will go free without any further action against him/her.

Therefore, even when the evidence supports a decision in favor of the accused, it sometimes does not go that way. Especially since these cases almost always involve guns and guns are super-sensitive topic these days.

However, even if McClernon loses his Stand Your Ground motion, he can still rely on self-defense at trial.  One does not preclude the other.