Update on Florida's Stand Your Ground Bill

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We previoulsy wrote here that the proposed changes to Florida's stand your ground law went too far in insulating people who shoot other people and then claim self-defense. Since we wrote that, the bill was modified and then passed the Florida legislature and is on its way to Governor Scott's desk to be signed into law.

So what changed?

You'll remember that the old version of the bill had this language, which, frankly, is unprecedented:

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.

The new version of the bill (yes, not a law yet since it hasn't been signed by the Governor (yet)) changes that language to this tasty morsel of court procedure:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

The discerning reader will note that there are actually two changes here. First, the burden of proof for overcoming the claim of immunity drops from 'beyond a reasonable doubt' to 'clear and convincing'. Second, the bill backs away from specifically outlining a procedure for a court to follow in a stand your ground motion hearing.

Changing the burden of proof for the State down from 'beyond a reasonable doubt' (the highest burden of proof in the legal system) to 'clear and convincing evidence' is admittedly an improvement. However, the current burden of proof for the state to overcome a stand your ground motion is a mere preponderance of the evidence (which any plaintiff's lawyer will tell you is 50.000000000000...0000000000...00001%). Given this there will probably be an increase in stand your ground motions granted, and then sorted out on appeal.

The bill backing away from explicitly outlining court procedure is important because it removes what could have been a constitutional hurdle in the old language. The legislature gets to make the substantive laws, while the Florida Supreme Court gets to decide how they are procedurally used by the courts. For example, if the legislature passed a bill that told the courts "You can only hear probate cases on Tuesdays" that would interfere with the procedural operation of the courts, and be unconstitutional under the seperation of powers in the Florida Consti... wait! Don't leave! This is just getting interesting!

While the new bill is an improvement over the original, its still a change to a law that has been controversial at best. It will be interesting to see what the appellate courts do with it, assuming it's signed into law.

photo credit: danidelgado.es 128-365