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Florida Places Burden of Proof on the State In Stand Your Ground Immunity Hearings


Florida has become the first state in the union to place the burden of proof on the prosecutor during hearings on "stand your ground" immunity motions. Florida's "stand your ground" laws, which took effect in 2005, significantly broadened the circumstances under which a person could lawfully use deadly or non-deadly force. Prior to 2005, a person had an affirmative duty to retreat prior to using force against an attacker, unless that person was in his or her home at the time of the attack. The lack of duty to retreat from one's home prior to the use of force is known as the "Castle Doctrine", a very old concept which has its foundation in the common law.

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 commission of a forcible felony".

The language of section 775.012 was amended in 2005 and, thereafter, read 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 of force is necessary to prevent imminent death or great bodily harm to himself, herself, or another, or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to 776.013". The added language affirmatively removed the duty to retreat where a person is attacked outside his or her home. This is why Florida's stand your ground law is so often described as an expansion of the Castle Doctrine.

Section 776.013 did not exist prior to 2005. Subsection (3) of that statute 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 . . . [emphasis added]". This provision is where the "stand your ground" language comes from. The 2005 amendments also included the addition of Florida statute 776.032, which also did not exist previously. Section 776.032 is the provision that creates civil and criminal immunity for those who use force, as permitted in section 776.012 and 776.013. This where the "immunity" language has its foundation.

These newly amended and newly enacted provisions caused some considerable uncertainty, in both trial and appellate courts throughout the state, in terms of their practical application and the procedural framework to be utilized in carrying out the intent of the legislature. The issues were ultimately resolved by the Florida Supreme Court in State v. Dennis, 51 So.3d 456 (Fla. 2010) and Bretherick v. State, 170 So.3d 766 (Fla. 2015). Pursuant to the holdings in both cases, the trial court was tasked with resolving factual disputes at hearings on stand your ground immunity motions and the defendant had the burden of proving, by a preponderance of the evidence, that he or she was immune from prosecution (because he or she was justified in the use of force).

A fundamental principle of American jurisprudence is that in a criminal case, the state alone has the burden of proof, and the defendant is not required to prove, or to disprove, anything. The standard of proof is, of course, beyond a reasonable doubt. To many, the Florida Supreme Court's holding in Bretherick represented a significant departure from this basic constitutional principle because the defendant was, essentially, required to prove that he or she was justified in his or her conduct and, therefore, not guilty.

As of today, that has changed. On June 9th, 2017, Governor Rick Scott signed into law SB 128, which places the burden of proof, in hearings on stand your ground immunity motions, on the state. Subsection (4) of SB 128, which was presented to Governor Scott for signing, states as follows: "In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pre-trial 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)".

"Clear and convincing evidence" is a lesser burden than "beyond a reasonable doubt" but is still significantly higher than the "preponderance of the evidence" standard placed on a criminal defendant prior to SB 128 taking effect. While it may sound a bit complicated, it really isn't, and here is how it plays out: The defendant is charged with a crime involving the use (or threat) of violence, but appears to have been justified in his or her use of force. That person's criminal defense attorney will file a motion to dismiss the charge (or charges) based on statutory immunity from prosecution. A good faith basis, and prima facie facts, are all that is required from the defense. Once the issue is raised, by the filing of a written pleading, the state must prove, by clear and convincing evidence, that the accused was not justified and, therefore, not immune from prosecution. Instead of the accused having to prove that he or is immune, the state must now prove (at a hearing) that the accused is not immune, and must meet a higher standard of proof than the accused was burdened with previously.

The benefit to those accused of crimes in the state of Florida, where there is bona fide evidence of justification, cannot be overstated. This presents some very meaningful opportunities for an accused person to have his or her charges dismissed without having to run the risk of a trial. If the motion is denied, the accused has the option of appealing the court's ruling, raising the issue again at trial, or perhaps both. It is worth repeating: if you file an immunity motion, and you are not successful before the court, you may still raise the same issues before a jury; a denial of your immunity motion does not preclude the same defenses from being raised at trial.

In addition to giving the criminal defense attorney (and the accused) two bites at the apple (in the form of (1) a motion to dismiss; and, if unsuccessful, (2) a jury trial), a hearing on the motion can be an incredibly valuable discovery tool for the defense. Because the burden is now on the state, it will be forced to call witnesses, present evidence, and make arguments to meet that burden. The defense will, therefore, have an opportunity to cross examine those witnesses, hear and respond to the state's arguments, and get a very solid feel for the state's theory of the case.

Further, when the burden was on the defense, the defendant would almost always have to take the stand at an immunity hearing to meet that burden. This gave the state a meaningful opportunity to cross-examine the accused before trial and really nail down his or her testimony. This was particularly advantageous where the accused had not previously given a statement to police. Now that the burden has been placed on the state, I suspect that the need to call the defendant in these types of hearings will be diminished and, in some cases, eliminated altogether.

Even when the burden was on the defendant, I felt like these pre-trial immunity hearings had value as a "test fire" before I presented my case to a jury. My sentiments in that regard are only bolstered by the passing of SB 128 today. Will other states follow suit? I don't know. I also don't think we've see the last of this issue here in Florida. There are many people who are going to be very dissatisfied with these amendments and will assuredly seek to challenge them at the first opportunity. What is clear to me, however, is this: these amendments are more in line with the basic constitutional principle that the burden of proof is on the government (or the state) and the accused is not required to prove his or her innocence. Placing the burden on the accused to prove legal justification at an immunity hearing seems inconsistent with the presumption of innocence. While challenges are sure to come, I think the new law is here to stay. Of course, time will tell and, as always, I will keep you all updated as things progress.