A literal reading of Oklahoma’s Stand Your Ground law reveals that a person has no duty to retreat and that they may meet force with force, including deadly force, when confronted by a threat of death or grievous bodily injury, and that they can protect themselves with deadly force if they believe that their own lives are in jeopardy. It is part of the Oklahoma Firearms Act of 1971 and amplified in 21 O.S. 1289.25 of state statutes. However, in a recent decision, the Court of Criminal Appeals says that a literal reading of the law is wrong and that there is no absolute immunity in Oklahoma.
Previously, the statutes and unpublished Court of Criminal Appeals opinions said that a person was justified in the use of deadly force under the provisions of the Stand Your Ground law, and was immune from criminal prosecution, when the use of deadly force was reasonable under the circumstances. If a person was charged with a crime for defending themselves, they would file a pre-trial motion with the court for a determination of whether immunity applied, and if the court found that immunity applied, the charges would be dismissed.
After the court found immunity in favor of the defendant, the defendant was free to go and no longer faced the stress and uncertainty of a criminal trial before a jury. If, however, the judge denied the motion, the defendant could file an interlocutory appeal (pre-trial appeal) with the Oklahoma Court of Criminal Appeals, the highest criminal court in the state, and obtain a final ruling on the issue before a trial.
Before, May 24, 2018, the Court of Criminal Appeals issued unpublished opinions regarding the procedure for defending immunity issues related to stand your ground. The procedure required an interlocutory appeal (pre-trial appeal) if the accused lost the immunity hearing. Unpublished opinions were not of precedential value, however, the trial courts were guided by the unpublished opinions.
A published opinion would, under the rule of stare decisis, Latin – meaning the legal principle of determining rules of law according to precedent, with precedent requiring all lesser courts to follow the rule decided by the Court of Criminal Appeals. However, before May 24, 2018 there was no published opinion, precedent, by the Court of Criminal Appeals to direct the trial courts.
All of that changed with a published decision handed down by the Oklahoma Court of Criminal Appeals on May 24, 2018 in the case of McNeely v. State, Case Number: MA-2017-770.
Vicky McNeely was charged with one count of Murder in the First Degree for the shooting death of her husband inside their home. McNeely filed a motion to dismiss the charge based on her claim of immunity from prosecution under the Stand Your Ground law. The trial court judge determined that McNeely was not entitled to the defense because “it was not the Legislature’s intent to include a person’s residence, in the context of the use of deadly force as between lawful residents therein, …” McNeely filed an interlocutory appeal seeking a reversal of the District Court’s ruling and dismissal of the charge.
In its analysis of the issues, the Court of Criminal Appeal determined that the Legislature made no provisions in 21 O.S. 1289.25 for a pre-trial appeal, stating the Court “expressly rejects our previous approach to these cases. We hold today that an extraordinary writ proceeding is not cognizable to allow merits review of a District Court’s pretrial ruling denying Stand Your Ground immunity.” The Court further reasoned in its opinion:
“Immunity as used in Oklahoma’s Stand Your Ground law can be easily misconstrued to mean absolute immunity from prosecution regardless of the underlying facts and circumstances. Yet, the immunity created in section 1289.25 is a conditional immunity meaning that it applies only if certain factual elements are established. The applicability of Stand Your Ground is thus entirely dependent on the specific and unique facts and circumstances of the particular incident at issue. See 21 O.S.2011, § 1289.25. The pivotal determination of whether Stand Your Ground applies to any given scenario requires judicial application of the law to the specific facts at hand.
“When criminal charges are filed, the only way courts can truly determine whether a defendant is immune from prosecution under the Stand Your Ground law is for the State to present evidence showing all of the facts and circumstances regarding the commission of the alleged crime; and then for the defendant to present evidence showing why, under all the facts and circumstances of the case, the defendant’s use of force was reasonable and justified under the Stand Your Ground law. Such a procedure is the very essence of a criminal prosecution. In other words, a defendant must be prosecuted to some extent in order for Oklahoma courts to determine if he or she is legally not guilty of a crime.
“District Attorneys of Oklahoma should continue to include Stand Your Ground considerations in the exercise of their general discretion and authority to decide what criminal charges should be filed. Trial courts should continue to use motion hearings and preliminary examination proceedings to address arguments and precepts concerning Stand Your Ground immunity from prosecution. We are confident that all due process and statutory Stand Your Ground requirements will be fully satisfied by such efforts even though there are no available appellate challenges for interlocutory Stand Your Ground decisions.”
In effect, the Court ruled defendants can no longer file an interlocutory appeal to seek a pretrial ruling on Stand Your Ground immunity from the Court of Criminal Appeals. They must now wait to challenge a court’s denial of immunity until after a jury trial has been conducted and if convicted, possibly incarcerated.
If you have questions on this law change, or any other, attend a Gun Law Seminar near you. To register for a seminar go to uslawshield.com/seminar today!
As an aside, Gov. Mary Fallin signed into law a few weeks ago legislation to add churches to the list of places where the ‘Stand Your Ground’ law applies. That provision goes into effect November 1, 2018.