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Stand Your Ground: The Burden Shifts to the State

On Friday June 9, 2017, Florida Governor Rick Scott signed Senate Bill 128, which has dramatically changed the law, and now requires that prosecutors – not defendants – have the burden of proof in a pretrial Stand Your Ground hearing, and the prosecutors have to prove, beyond a reasonable doubt, the defendant was not properly standing his or her ground.

In 2005, Florida amended §776.012, to permit a person to “stand his or her ground,” and use reasonable force, to defend against an attack – if he or she “is not engaged in a criminal activity and is in a place where he or she has a right to be.” The legislature also enacted §776.032, which provided that those who were justified in using force to defend themselves were immune from criminal prosecution.

If a person is charged with a crime for using force against another, and claims that force was justified, pursuant to the Stand Your Ground statute, the defendant can ask the court to dismiss the case, by filing a pretrial Motion to Dismiss for Statutory Immunity from Prosecution, commonly referred to as a “Stand Your Ground Motion.” This gives the court authority to dismiss the case, without need for trial, if the court finds the defendant was justified in using force to defend against an attack.

In 2015, the Florida Supreme Court held, in Bretherick v. State, 170 So. 3d 766 (Fla. 2015) that, during a Stand Your Ground hearing, the defendant (rather than the State), had the burden of proving that he or she was justified in the use force. This standard of proof was different than the standard at a criminal trial. In a criminal trial, the State has the burden of proving guilt, beyond a reasonable doubt, but, under this case, the State only had to rebut the Stand Your Ground Motion by a preponderance of the evidence, which is a much lower standard, and thus far more favorable to the State.

Justice Canaday wrote a dissenting opinion in Bretherick. He stated that the standard should be the same for both a pretrial Stand Your Ground hearing and a criminal trial, such that the State should have the burden of proof (and not the defense), and that burden should be the same as the State’s burden at trial, that is, proof beyond a reasonable doubt.

The Florida Legislature agreed with Judge Canaday’s opinion, and the Senate proposed SB 128, which amended §776.012, and added language stating that, when a defendant raises a pretrial claim of self-defense immunity from prosecution (that is, a Stand Your Ground Motion), the burden of proof is on the State to prove, beyond a reasonable doubt, the defendant did not have the right to stand his or her ground. The bill passed both the Florida Senate and House, and when it was signed by Governor Scott on June 9, 2017, it took effect immediately.

This law protects the constitutional rights of citizens who stand their ground and use force to protect themselves, and presumes they are innocent until the State meets its burden. Moreover, it potentially eliminates the need for two “trials,” since the State must meet their “beyond a reasonable” doubt burden, at the pretrial hearing, too. Under the prior law, defendants had to run the gauntlet of a complex pretrial evidentiary hearing, where they had the burden of proof, and then run the gauntlet of a trial.