Lindsey & Ferry, P.A.
The New Stand Your Ground Law
On June 9, 2017, Governor Rick Scott signed an amended Stand Your Ground bill into law. The new law is intended to bolster the rights of Floridians to defend themselves with force, including deadly force, when they believe it is reasonably necessary to prevent the use of force against them. However, the use of deadly force still requires the reasonable belief that such deadly force was necessary to prevent imminent death or great bodily harm, or to prevent the imminent commission of a forcible felony. If an accused individual is able to prove to the court’s satisfaction that their use of force was reasonably necessary, then they will receive immunity from prosecution, and immunity from civil liability. Essentially, the person is immune in the criminal courtroom, and also immune from being sued in a civil courtroom.
The main change in the law with the passage of the new bill is that the burden of proof will no longer be on the person accused of the crime. Under the old law, if someone was accused of a crime related to their use of force against another (for instance, a battery or murder charge) that person would have the burden of proving that they were immune from prosecution in a “Stand Your Ground” hearing. That Stand Your Ground hearing was held prior to the day of trial in order to determine whether or not the accused individual receives immunity for their actions. The accused individual had to present evidence to the court in an attempt to persuade the judge that they had proven beyond a “preponderance of the evidence” that they were legally justified in using force.
A preponderance of the evidence standard means that the accused individual was able to prove to the court that there was more than a 50% chance that their position is correct. In a Stand Your Ground hearing, that would require convincing the judge that it is more likely than not that the accused person reasonably believed that the use of force was necessary to prevent the imminent use of force against them; or in the case of deadly force, that they reasonably believed that the force was necessary to prevent death or great bodily injury being inflicted upon them.
The text of the original law was silent as to whether the accused person or the government had the burden of proof. It was unclear whether the person charged with a crime or the prosecutor had to prove whether there was immunity from prosecution, and what the standard of proof was. When a law is silent on such issues it generally falls to the courts to interpret what they believe the legislature intended the law to say. The Florida Supreme Court decided in a landmark case called Bretherick v. State, that the burden of proof was on the accused, and not the government, to prove the issue by a preponderance of the evidence. In that case the Supreme Court was upholding the ruling of the Fifth District Court of Appeal, which has jurisdiction in most of Central Florida, including Orange County. The new law flips that burden upside down, and now requires the prosecutor to prove by a preponderance of the evidence that the accused individual is not entitled to immunity.
The new law maintains the presumption that a person had a reasonable fear of imminent death or great bodily harm, and therefore legally justified in using deadly force, if the force was used against someone who was forcibly entering a home or occupied vehicle. When the statute says “forcibly entering,” it generally means physically breaking in. The same presumption applies if the force was used against someone who was trying to remove you from your home or vehicle. In other words, if someone was trying to abduct or kidnap you from your home or vehicle, the law presumes you are able to use deadly force. Of course, that presumption doesn’t apply if the force is used against someone that has a legal right to be in the home or the vehicle; for instance, someone who is leasing part of the home, or holds title to the vehicle.
There are other notable exceptions to the rules set out in the statute. Most notably is that the Stand Your Ground law does not apply if the person against whom the force is used is a law enforcement officer performing their official duties. For instance, if an officer conducted a traffic-stop on a vehicle and observed the occupants using illegal narcotics, he would have a lawful duty to detain the occupants and investigate the crime of illegal drug use. If the occupants refused to get out of the vehicle so that the officer could lawfully detain them, and the officer reached inside to forcefully remove them, the occupants would not be legally justified in using force against the officer.
Another notable exception is if the accused individual was engaged in illegal activity at the time they used force, or was using a residence or vehicle to further criminal activity. In such a case that person would not be allowed to use force and then claim immunity under the Stand Your Ground law. An example of this would be if the accused individual was engaged in selling illegal drugs and met force with force when another individual tried to rob him. Under the letter of the law the suspected drug dealer could not use a Stand Your Ground defense. He could still use a traditional self-defense theory, but that defense would not be controlled by the Stand Your Ground law.
The new law is the first in the country to place the burden of proof on prosecutors. It takes effect on July 1, 2017. If you are under investigation or charged with a criminal violation where self-defense or “Stand Your Ground” are possible defenses, please call the attorneys at Lindsey and Ferry, P.A., now so that we may assist you.