What is a Stand Your Ground Immunity Motion?

Florida has always had laws that authorize an individual to defend themselves against an imminent attack from another person. Prior to 2005, however, the individual had an affirmative obligation (or "duty") to retreat, if at all possible, before using deadly or non-deadly force (as the nature of the threat would warrant), unless the the individual was in his or her own home. The lack of duty to retreat from a person's own home, before the use of force was authorized, is often referred to as "The Castle Doctrine".

Under its pre-2005 version, Florida Statute section 775.012 provided that "a person is justified in the use of force, except deadly force, against another, when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other's imminent use of unlawful force. However, the person is justified in the use of deadly force only if he or she believes that 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". The term deadly force means "force that is likely to cause death or great bodily harm".

In 2005, 775.012 was amended: the second sentence, post amendment, reads as follows: "However, a person is justified in the use of deadly force, and does not have a duty to retreat [emphasis added], if (1) he or she reasonably believes the 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; or (2) Under those circumstances permitted pursuant to 776.013".

Section 776.013 did not exist prior to 2005. It presumes that a reasonable fear of death or great bodily harm, on part of the person using defensive force, exists where (1) the other individual had entered the residence or occupied vehicle of the person using defensive force (or where the other individual was attempting to remove a person from the residence or vehicle against that person's will); and (2) the person using defensive force knew of the unlawful entry or act. It also sets forth the circumstances under which the presumption does not apply (including, for example, where the person against whom force was used had a right to be in the home or vehicle or where the person sought to be removed was a child or grandchild of the person against whom force is used).

Subsection (3) of section 776.013 provides that "a person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony [emphases added]". This newly enacted subsection is the essence of Florida's Stand Your Ground law: it affirmatively removes the duty to retreat from not just the home, but also, from anywhere the person using defensive force has a right to be. It is for this reason that Florida's Stand Your Ground Law is often described as an expansion of the Castle Doctrine.

The 2005 amendments also included the addition of Florida Statute 776.032 which also did not exist previously. This is the provision that creates civil and criminal immunity for those use force as permitted in 776.012 and 776.013. An "immunity motion" is a pre-trial motion to dismiss criminal charges under the authority of 776.032, where it appears that the accused person (1) acted in self defense; and (2) used only the degree force that was necessary to defend himself, herself, or another.

Traditionally, a pre-trial motion to dismiss a criminal case would be denied by the court where there were any dispute as to the underlying factual circumstances. The defense would set forth its version of the facts in the body of the motion and the accused person would be required to swear to the veracity of those facts. If the State's version of events was different, or where additional facts existed, the State would set forth those facts in a pleading called a "traverse". Upon the filing of the traverse with the clerk, the court would then file an order denying the motion to dismiss and the matter would proceed to trial (where the jury would resolve all factual disputes and render a verdict). It was only where the State and the defense agreed on the underlying factual circumstances and where those circumstances did not constitute a criminal offense that the motion to dismiss would be granted. These motions were (and still are) referred to as C4 motion to dismiss (as they are filed under the authority of Florida Rule of Criminal Procedure 3.194(c)(4)). For further reading on this topic, see the Defensive Motions section of our website.

Upon the enactment of Florida's Stand Your Ground Law, there was much confusion about whether an immunity motion should be treated the same as a C4 motion. Where the underlying circumstances were in dispute (i.e. where the state and the defense supported different versions of events) was the court required to summarily deny motion to dismiss? Was the court instead required to resolve issues of fact and determine whether immunity should attach based on those factual findings? If the motion to dismiss was denied, could the accused still raise the issue of self defense at trial, or would they be they precluded from doing so based on the court's findings of fact and its ruling?

The seminal case on the procedure for raising the issue of statutory immunity, and the function of the trial court in ruling on a motion to dismiss based on immunity, is State v. Peterson, 983 So.2d 27 (Fla. 1st DCA 2008) which was decided by Florida's First District Court of Appeal. After carefully considering the newly enacted language of Florida Statutes section 776.013 and section 776.032, the First District held that when the issue of immunity is raised by a defendant [through the filing a motion to dismiss], the trial court must decide the matter by confronting and weighing factual disputes. The court may not deny the motion simply because factual disputes exist. It went on to hold that even though Peterson's motion to dismiss was denied by the trial court, he was not precluded from submitting the matter to the jury as an affirmative defense. This, in essence, gives an accused person two bites at the apple in raising the issue of self defense: one before the court in the form of a motion to dismiss and, if denied, a second bite before a jury in the form of an affirmative defense.

Not every appellate district saw things the same way. In State v. Dennis, 51 So.3d 456 (Fla. 2010), the Fourth District Court of Appeal affirmed the trial court's denial of the defendant's motion to dismiss based on statutory immunity on the ground that factual disputes existed (the defendant raised the motion under the authority of Florida Rule of Criminal Procedure 3.190(c)(4) and the state filed a traverse). The trial court expressed doubt as to whether it had the authority to conduct an evidentiary hearing, concluding that in enacting 776.032, the Legislature did not intend to take the question of immunity away from the jury. The Florida Supreme Court adopted the view of the First District in Peterson, and rejected the view of the Fourth District in Dennis, holding that (1) the trial court should decide the factual question of the applicability of statutory immunity; and (2) a motion to dismiss on the basis of section 776.032 immunity is not subject to the requirements of rule 3.190(c)(4) but should be treated as a motion filed pursuant to rule 3.190(b).

In Dennis, the Florida Supreme Court also held, at least implicitly, that the burden of proof in these types of proceedings is on the defendant; he or she has the burden of proving that immunity attaches by a "preponderance of the evidence". Just last year, the Florida Supreme Court expressly reiterated its position regarding the burden of proof in an immunity motion hearing in Bretherick v. State, 170 So.3d 766 (Fla. 2015) - the burden is on the defense exclusively.

Ordinarily, in a criminal case, the burden of proof is on the state and the defendant is not required to prove or disprove anything. Where the issue of self defense is raised at trial, the defendant must introduce at least some evidence in support thereof (usually in the form of witness testimony). The burden then shifts back to the state to prove, beyond a reasonable doubt, that the defendant was not justified in his or her use of force. A pre-trial hearing on an immunity motion to dismiss constitutes the only real exception to this general legal principle that I am aware of: the defendant alone bears the burden of proving that immunity attaches. In these types of hearings, the burden does not shift back to the state as it would in a jury trial. Once again, the state is not required to prove anything.

It is worth emphasizing, however, the the defendant's burden of proof in an immunity hearing is a "preponderance of evidence" - a much lesser standard than "beyond a reasonable doubt" (which is always the state's burden, in any criminal case, at trial). A "preponderance of the evidence" is a "more likely than not standard" which means that if the court finds it is more likely than not that the defendant was justified in the use of force, it must grant the motion to dismiss.

Florida's "stand your ground" laws, including the immunity provisions of 776.032 are very favorable to the defense. These types of motions can be raised to defend against a host of criminal charges, ranging in severity from simple battery to murder. In summary, the lack of duty to retreat is no longer applicable to the situations where the accused is attacked in his her home. The trial court must resolve issues fact - there is no legal basis in Florida to summarily deny a stand your ground immunity motion on the basis of factual disputes. Although the defendant bears the burden of proof, it is only a preponderance of the evidence (a far lesser burden that the State's burden in a trial setting). Where the burden is met, the defendant is immune from criminal prosecution and the court must dismiss the charge. If the motion is denied, the defendant may still raise the issue of self defense at trial for the jury's consideration.

With all of that being said, is there any reason why a stand your ground immunity motion should not be filed and litigated? The answer is "yes". First, stand your ground immunity motions are denied more often than they are granted. While the court certainly has the authority to make calls on the credibility of witnesses and make findings of fact, there is an inclination to delineate that role to where it has laid traditionally: with the jury. Second, the defense will usually be required to put the client on to testify. This is especially the case where there were no witnesses to the incident that can provide testimony favorable to the defendant or where there are credibility issues with such witnesses (i.e. multiple prior felony convictions or obvious bias in favor of the accused). This gives the state an opportunity to cross examine the accused and, if the motion is denied, those statements may be introduced at trial either substantively, or to impeach the accused if he or she elects to testify again. Where the accused did not make any statements to law enforcement, the state may not be aware of certain important details. By testifying, and therefore being subject to cross examination, the state can get a solid handle on the theory of defense and may be better prepared to address unforeseen weaknesses in its case at trial.

While there are potential downsides to filing and litigating a stand your ground immunity motion, the right set facts will present an indispensable opportunity to have a criminal charge dismissed - without the risks of proceeding to trial.

Categories: Criminal Defense