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Potential Changes Afoot For Florida’s Stand Your Ground Law?

Florida’s controversial “stand your ground” law came to national attention in February, 2012, following the shooting death of 17-year-old Trayvon Martin.  The “stand your ground” statute, sometimes seen as a defense to a charge of homicide or other illegal use of force, in fact offers a defendant complete immunity from prosecution on the basis that his use of force was justified.  Now, the Florida Senate is considering changes to the way the statute works.

Immunity from prosecution

Under Florida statute §776.032, a person is justified in using deadly force against another person if he or she reasonably believes that deadly force is necessary to prevent imminent death or great bodily harm to himself or herself, or to prevent the imminent commission of a forcible felony.  The person has the right to stand his or her ground so long as he or she is not engaged in any criminal activity and is in a place where he or she has a right to be.  (See Florida Statute §776.012.)

The idea that using deadly force in self-defense is justifiable is an old one in the law.  What is different in Florida is the law’s guarantee of immunity from prosecution altogether.  The statute says that a person who is justified in using deadly force may not be arrested, detained in custody, charged, or prosecuted.  In fact, under the express terms of the statute the police may not arrest the person unless they determine that there is probable cause that the force used was unlawful.

In July 2015, the Florida Supreme Court addressed the question of who has the burden of proof when a defendant moves to dismiss criminal charges on the basis of stand-your-ground immunity.  In Bretherick v. State, the court ruled that the defendant must prove, by a preponderance of the evidence, that he is entitled to immunity at a pretrial evidentiary hearing.  Practically, this means that an individual charged with homicide who asserts stand-your-ground immunity must both raise the issue via a motion to dismiss and prove it in a pretrial evidentiary hearing in order to have the charges dismissed.  The court noted that all of the appellate courts to consider this issue have reached the same conclusion.

Proposed changes to the Stand Your Ground law

The Miami Herald reports that the Florida Senate in January 2016 approved changes to the stand-your-ground law that would shift the burden of proof on immunity to prosecutors.  Under the statutory changes, the prosecution would be required to prove by clear and convincing evidence that stand-your-ground immunity does not apply.  Not only does this flip the burden of proof from the defense to the prosecution, it also heightens it, from the lower “preponderance of the evidence” standard to the higher standard of “clear and convincing evidence.”  It is unclear whether the approved changes will actually become law, because a companion bill stalled in the House in committee.

Consult an Orlando Criminal Defense Attorney

In Florida, homicide committed in self-defense is legal.  Regardless of any potential procedural changes to existing law, if you are facing any type of homicide charge, you should consult an attorney familiar with the complexity of Florida’s laws surrounding homicide.  The dedicated criminal defense attorneys of The Baez Law Firm represent clients in all manner of homicide cases in Orlando, Miami, Tampa, and throughout the state.  We can help you no matter what the circumstances of your case.  Contact us for a free consultation today.

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