Yesterday, Florida Governor Rick Scott signed into a law a modification to the state’s self-defense immunity statute, according to Reuters and other news sources.

The self-defense immunity, generally mis-identified by media as a “stand your ground” law, provides for criminal and civil immunity for a use of force that is determined to constitute lawful self-defense.

The relevant new language added to the state’s self-defense immunity law reads:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution  provided in subsection (1).

It is noteworthy that the statutory change explicitly specifies criminal immunity.  In fact, Florida law also provides for civil immunity, and the Florida courts have consistently applied the same process to both criminal and civil immunity.  Whether the courts will apply the new criminal standard to civil matters, or use the new standard in criminal cases and the prior standard for civil cases, remains unclear.

Self-defense immunity and stand-your-ground are profoundly distinct legal concepts, and the continued use of the media to use the label “stand-your-ground” to reference both is an indication of their lack of intellectual capacity.  For a more in-depth explanation of how self-defense immunity and stand-your ground differ, see “Florida’s Self-Defense Immunity Law:  How it really works.”

The Florida legislator enacted self-defense immunity statute §776.032 in 2005: “Immunity from criminal prosecution and civil action for justifiable use of force.”  As is often the case with self-defense immunity statutes nationwide, the legislature passed the bill without providing any guidance to the courts as to how one would qualify to receive immunity.  The mechanics of this process were instead left to the courts, a reasonable decision on its face as it would be the courts applying the process.

Ultimately, the Florida Supreme Court decided that self-defense immunity could be sought pre-trial, and that the burden of persuasion on immunity fell upon the party seeking immunity, and by a preponderance of the evidence.  As a practical matter, however, Florida courts began granting immunity almost never.  The view of many defense attorneys in Florida began to be that there was no point in seeking immunity because it was hardly ever granted, and thus the effort was not worth the damage of having to argue the defense’ case in front of the prosecution before a trial proper had begun.

The effect was that the state’s self-defense immunity law was left gutted and toothless.  Proponents for self-defense immunity sought an important change in the law, initially demanding that the burden fall on the prosecution to disprove self-defense beyond a reasonable doubt in order to deny immunity.  This is, in fact, the burden that the prosecution must meet in defeating a claim of self-defense at trial.

The standard of beyond a reasonable doubt was deemed too high, ultimately, and the legislature finally agreed that the burden of persuasion on self-defense immunity ought to fall on the State, to disprove self-defense, but only to the legal standard of clear and convincing evidence.  Clear and convincing evidence can be thought of as more than a preponderance of the evidence, but less than beyond a reasonable doubt.

It is this change that Governor Scott signed into law yesterday, in the form of “CS/SB 128: Self-defense Immunity,” taking effect immediately.  The final text of that bill is embedded below:

Florida Bill to Change SYG 170508 by Law of Self Defense on Scribd

–-Andrew

Andrew F. Branca is an attorney and the author of The Law of Self Defense, 3rd Edition, and a host on The Outdoor Channel’s TV show, The Best Defense.