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The Florida Bar

Stand Your Ground Law Application and Controversy

Florida’s Stand Your Ground Law was enacted over a decade ago and has been the center of significant controversy in the wake of high profile cases such as George Zimmerman/Trayvon Martin. Despite significant criticism of Florida’s expanding on a victim’s right to use deadly force in self-defense there have also been attempts to broaden the scope in favor of the law. In 2016, an attempt was made to further protect victims using deadly force by shifting the burden to prosecutors who would then be charged with the task of proving that the use of such force was not justified.

For those of you unfamiliar with the changes that Florida’s stand your ground law made to our criminal justice system consider the following:

10 years ago lawmakers succeeded in expanding Florida’s criminal law on self-defense with the goal of creating a less complicated and easier legal means for victims who used deadly force against an assailant. Under Florida law deadly force can be defined “in part” by use of a deadly weapon such as a firearm or knife. This of course can be expanded to include instances where an individual uses an automobile as a weapon and may also be defined by the act itself rather than the item used.

The specific language used by lawmakers was that these changes would provide a simpler, faster and cheaper legal path for those defending themselves against accusations relating to deadly force. According to Florida criminal defense lawyers, however, the law has shown to fail in this regard due to the fact that it requires poor defense strategy where a defendant elects to assert a stand your ground defense via a pretrial hearing. More will be discussed on this below.

What Is Florida’s Stand Your Ground Law?

Florida’s stand your ground law expanded upon pre-existing self-defense statutes rather than creating a new type of affirmative defense for persons accused. Under sections 776.012 and 776.77 6.01377 6.013 Florida law now provides that a person is justified in using deadly force and has no duty to retreat if that person believes that deadly force is necessary to prevent death or great bodily harm to either him or herself or another.

Furthermore, under “stand your ground” Florida criminal law provides that where an assailant attempts to or enters a victim’s home or vehicle, or refuses to leave, that victim can be presumed to have a reasonable fear of death or great bodily harm so as to justify the use of deadly force the accused. The assailant will also be presumed to be acting with the intent to commit an unlawful act involving violence.

In criminal cases involving a home or automobile under this section, no evidence “per se” is required that tends to establish that the assailant actually intended to exert deadly force or that the person seeking protection under stand your ground was actually in fear.

For example, a person who accidentally walks into the wrong unit of their apartment complex could legally be shot dead on the spot by the lawful occupant. Furthermore, the person walking into the wrong apartment will be legally presumed to have been doing so with the intention of harming the occupants. Additionally, the occupants as a matter of law will be presumed to have had a justifiable fear that they were in danger of being killed. These presumptions will exist regardless of any actual intent or fear of the respective parties absent evidence to the contrary.

This is a drastic change from Florida’s original criminal justice system regarding the use of deadly force in self-defense cases.

Claiming Self-Defense Where Deadly Force Was Used Prior to Florida’s Stand Your Ground Law

Before Florida’s stand your ground laws came into effect, the use of deadly force in order to defend oneself was limited in the fact that individuals were required to use every possible means within their power to avoid the conflict. This duty to retreat was defined by higher courts over time to include such language as to the effect that individuals as a matter of law were required to “retreat to the wall” under the law. This duty to retreat stemmed from the earliest of laws otherwise known as common-law.

Who Has the Burden in Stand Your Ground Self-Defense Cases?

In practice, our criminal justice system revolves around burdens when it comes to the respective roles of both the prosecution and criminal defense attorney. For example, in order to prove a case, it is the state attorney who is considered to have the burden in proving a case beyond into the exclusion of any and all reasonable doubt. This pertains to every element of a crime.

Explanation via analogy: In a simple DUI case, the prosecution must prove that the defendant was driving a vehicle and that they were under the influence of an alcoholic beverage or controlled substance to the extent that their normal faculties were impaired. Individually, those are three elements, the first being that the defendant was driving. The fact that the defendant was driving must be proven beyond and to the exclusion of any and all reasonable doubt just as it must be proven beyond and to the exclusion of any and all doubt that they were under the influence of a controlled substance and thirdly that their normal faculties were impaired. This is considered the states burden.

See DUI in Florida

Other issues pertaining to criminal cases in Florida require the defense to incur the burden. Such is the current state of the law with regard to asserting a defense under stand your ground.

Originally, the legislature was unclear as to who bore the burden with regard to stand your ground and it was not until the fifth District Court of Appeals held that requiring the prosecution to prove that a defendant did not have the right to assert stand your ground would require the state to essentially prove the case twice. Ultimately, the higher court ruled that it was incumbent on the defendant to establish by way of a pretrial hearing that he or she was entitled to immunity from prosecution under the statute.

On the one hand, it is argued that if the state attorney believes that they can proceed in proving a case then they should easily be able to establish that a defendant is not entitled to immunity under Florida’s stand your ground law. On the other, it is maintained that a defendant should at least be forced to establish the lawfulness of their actions in exchange for immunity, which applies both criminally and civilly. This of course has raised issues with regard to the time of stand your ground pretrial hearings in relation to the ability and resources available to a defendant early on in the litigation.

Proposed Changes to Expand Florida’s Stand Your Ground Law in Favor of the Accused

In January 2016, the Florida Senate approved changes to Florida’s stand your ground laws that would have shifted the burden of proof to prosecutors. If made into law, this would have required the state attorney’s office in the appropriate jurisdiction to prove to the presiding criminal judge that a defendant was not entitled to immunity under the statute. Failure to do so would have required any further action against the defendant in any criminal proceeding. These changes were fully endorsed by the NRA. This bill, however was not considered on the House Judiciary Committee’s agenda for the 2016 session and the burden of proof remains on the defendant.

Criminal Justice Procedure and Stand Your Ground Self-Defense Cases

In order to assert protection from prosecution under Florida’s criminal law, the defense attorney and the accused must make the hard decision as to whether or not to request a pretrial hearing on the matter. This requires the defendant to testify and otherwise waive their right to remain silent and additionally tilt their hand as to the defense to be used should immunity be denied in the case proceed to trial. Many Florida criminal defense attorneys consider a request for immunity by way of a pretrial hearing to be malpractice.

Benefits to a Criminal Defense Attorney’s Choice to Forgo a Pretrial Hearing

The majority view among criminal lawyers is that it is a better practice to proceed straight to trial and waive any right to a pretrial hearing under Florida’s stand your ground law. This preserves the defense theory of the case as well as their clients right to remain silent. Furthermore, a defendant does not have to admit to killing the named victim. A requirement in order to seek immunity through justification of the killing admitted to.

By going to trial, a criminal defense team can rely on jury instructions that clearly state what is considered a justified killing requiring a not guilty verdict. This is because Florida’s stand your ground laws are included in those instructions regardless of whether a defendant chooses to testify or not. Despite these instructions, defendants who choose to go to trial relying on the jury being instructed as to Florida’s stand your ground law are not technically considered stand your ground cases, rather, only cases involving a pretrial determination under the law.

Criticism and Last Man Standing Argument

Florida’s stand your ground law has been criticized by many. President Barack Obama even went as far as to say that Treyvon Martin could have been him 35 years ago. One of the most frequent criticisms of the law is that it allows the defendant some form of benefit by being the last and only word. This course presumes that all stand your ground defense claims will involve the actual killing of the victim.

This is not the case claims William R. Moore, a criminal defense attorney in Fort Lauderdale Florida.

“A large number of stand your ground cases involve scenarios where a defendant use deadly force against another and did not kill them. The law does not apply only to cases involving a deceased victim.”

Florida Statute 776.013 extends protections to not only dwellings but to cars as well

Although Florida’s stand your ground law falls under the heading “Home Protection”, many do not realize that under the same section individuals in an “occupied vehicle” are afforded the exact same right to use deadly force as if they were in the sanctity of their own home. This raises serious concerns with regard to the inordinately high number of road rage cases in South Florida.

We have to consider that individuals may choose to stand and fight, exercising deadly force on our streets and highways rather than exercising an easy option to simply drive off” – Attorney William Moore

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