Florida's Stand Your Ground Bill Goes Too Far

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A new bill changing Florida's stand your ground immunity law is making its way through the Florida legislature. At least one State Attorney has come out in opposition, saying it would make the law overbroad and be a complete waste of taxpayer money. The existing law itself is already controversial, to say the least. If the bill is passed, the law will become even more so.

But what, exactly, does this new law change? Let's start with a look at what the law currently says, and what the new bill would add.

A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 ...

Before we go any further we should figure out what the "as permitted in" part is referencing. Here's the most well known part:

A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

Ok - back to it

...is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable l aw or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

Here's the part that the new legislation would add:

In a criminal prosecution, a defendant may file a pretrial motion claiming the right to the immunity from prosecution set forth in subsection (1). The motion must clearly state the reasons that the defendant is immune and allege the facts on which the claim of immunity is based. The court shall grant the motion after a pretrial hearing unless the state proves beyond a reasonable doubt that the defendant is not immune.

Let's break it down.

First, the new law outlines a procedure (note: not the only procedure) a defendant may use in asserting stand your ground immunity. This procedure is essentially the same one defendants use now - filing a motion to dismiss the case and claiming that they are entitled to immunity under the stand your ground law. If the motion is granted, the case is over. If the motion isn't granted the defendant can still assert stand your ground immunity at trial.

The next part of the bill is, quite frankly, unprecedented. "The court shall grant the motion after a pretrial hearing unless the state proves beyond a reasonable doubt that the defendant is not immune."

Let's step back a moment and talk about the way our court system handles a defendant's motion to dismiss the case. The prosecution always bears the burden of proof in a criminal case overall. When a defendant moves to dismiss the prosecution's case under a claim of immunity, the defendant is admitting to the facts of the case and claiming they had a good reason to do it. When a defendant does this, they bear the burden of proof in proving that defense actually applies.

The new stand your ground bill would completely reverse this.

Think about it this way - right now the system works, in the broad strokes, like this:

Prosecution: "You killed that guy!"

Defendant: "Ok let's say I did. But I had a good reason - I 'reasonably' thought that guy was going to kill or seriously injure me."

Prosecution: "Prove it."

If this law goes into effect, the system will work like this:

Prosecution: "You killed that guy!"

Defendant: "Ok let's say I did. But I had a good reason - I 'reasonably' thought that guy was going to kill or seriously injure me."

Prosecution: "Ok..." Defendant: "Prove me wrong!"

Essentially the new law enacts the legal scenario in this tweet:

As you can imagine, this is bad for a host of reasons. Shifting the burden of proof to the prosecution on the defendant's affirmative defense does, as Andrew Warren claims, create two trials in one case. Not only must the prosecution prove that the defendant killed the person, they must prove a negative - that the defendant wasn't in reasonable fear of their life or of being seriously injured. Not only do they have to prove a negative, they have to do it beyond and to the exclusion of every reasonable doubt - the highest standard we have.

The prosecution should be held to the highest burden of proof, but only when trying to prove their case in chief. Prosecutors (and taxpayers) should bear the burden of proving a negative in every murder, homicide, attempted murder, battery, and assault case.

If this law is enacted it can and will lead to some very unjust results. Let's hope the legislature shuts it down before it gets to our courtrooms.

(photo license)