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Florida Likely to Become First State to Shift Stand Your Ground Immunity to Prosecutors

stand your ground florida.jpgOn March 15, 2017, the Florida Senate passed a Stand Your Ground bill (SB 128) that will effectively make it easier for defendants to be protected under the law. The bill then made its way to the House on April 4, 2017, where they amended the law so that a case must be proven with "clear and convincing evidence," rather than "beyond a reasonable doubt." This change not only lowers the burden of proof but also shifts the responsibility of proving the case from the defendant to the prosecutor. 

Originally passed in 2005, Florida's Stand Your Ground law gives immunity from criminal prosecution to defendants charged with violent crimes if they can show that they reasonably believed their actions were necessary to prevent imminent harm.1 This immunity applies not only to acts of self-defense but also to property defense and the defense of others.

In the State of Florida, once a defendant claims Stand Your Ground Immunity by way of motion to dismiss, an immunity hearing must be held where he or she must prove they were acting in self-defense. However, that is likely to change with this amendment. Instead of the defendant bearing the burden to show that immunity should apply, the prosecutor would carry the burden of proving that the immunity does not apply. In other words, prosecutors would be required to prove to a judge that a case was not self-defense before they can even proceed to a jury trial on the matter, where they carry the already-heavy burden of proving such beyond a reasonable doubt.

Proponents of the bill, primarily defense attorneys and gun rights activists, argue that the change will ensure that defendants get the full protection and immunity of the law, strengthening the power of the presumption of innocence for those who utilized their fundamental right of self-defense. Proponents of the bill also argue that it will deter prosecutors from moving forward with self-defense cases that should be dropped well before trial. The defense would no longer need to present evidence, typically achieved in these hearings by the defendant taking the stand themselves.

Opponents of the bill, which include a mix of prosecutors, law enforcement officers, and former victims of violent crimes, argue that all this bill does is force the prosecution to prove their case twice: once at an immunity hearing before a judge and a second time before a jury at trial. Prosecutors fear that this new measure will deter witnesses from testifying since they will now have to testify twice. Gun-control groups are also actively fighting the bill, claiming that it will only fuel the amount of "senseless killings" that occur without any legal consequence. Another concern is that the new measure will increase the number of resources needed to adequately prosecute violent crimes and would further congest court dockets.

The House has sent this amendment back to the Senate for consideration. Governor Rick Scott, a strong advocate for gun rights and a proponent of Florida's Stand Your Ground law, is expected to sign the bill into law if and when it hits his desk. If passed, Florida will be the first state to put this burden of proof on the prosecution.

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