Shift in burden of persuasion not just a tweak, but YUUUUUGE!
Florida State Representative Dennis Braxley, often referred to as the father of the state’s Stand-Your-Ground law, filed a bill HB 169 that would profoundly alter the effects of Florida’s self-defense immunity law, reports the Orlando Sentinel. (The bill is embedded at the bottom of this post.)
As this is only proposed legislation at this point I would normally let it go given my workload, but I’m already seeing so much misinformation about this bill being spread thick over the internet that I feel obliged to set a reality stake in place.
First, “Stand-Your-Ground” ≠ Self-Defense Immunity
Before we even begin, please note that “Stand-Your-Ground” and self-defense immunity are two entirely different legal concepts, and conflating the two merely demonstrates an ignorance of the law. “Stand-Your-Ground” has to do with whether a defender has a legal duty to retreat before using force in self-defense, period. Self-defense immunity has to do with whether a defendant can qualify as immune from prosecution, regardless of whether retreat is an issue in the case. Two. Different. Legal. Concepts.
That out of the way, let’s proceed.
Second, HB 169 is NOT a “Mere Tweak” to FL Self-Defense Immunity
HB 169, were it to become law, would not be a “modest tweak” to Florida’s existing self-defense immunity statute.
It would be a game changer.
Currently, under Florida law the burden of persuasion on self-defense immunity at a pre-trial hearing is on the defense, by a preponderance of the evidence. That means that the defense must convince a judge at a pre-trial hearing that it was more likely than not–50%-plus of the evidence–that the defendant’s use of force was in self-defense. If the defendant fails to meet this burden of persuasion, the claim for self-defense immunity is denied and the defendant proceeds to trial.
In other words, if 50%+ of the evidence favors the defense, the defense motion for immunity is granted.
Under HB 169 the burden of persuasion on self-defense immunity at a pre-trial hearing would be on the State, beyond a reasonable doubt. That means that the State must convince the judge by an overwhelming amount of evidence (imagine ~90%, although there is no actual figure of this type) that the defendant’s use of force was not in self-defense. If the State fails to meet this tremendously high burden of persuasion, the claim for self-defense immunity is granted, and the defendant may not be brought to trial.
In other words, if even only a modest amount of the evidence (we’re imagining ~10%) favors the defendant, the defense motion for immunity is granted.
This change makes it enormously more difficult for the prosecution to defeat a motion for self-defense immunity.
To quote Trump (satirically speaking), this change is not a “tweak” to existing law: it’s a change that’s YUUUUUUGE.
Further complicating things for Prosecutors, is the much compressed time frame in which they will have to meet this burden of persuasion.
It’s true that even if they manage to deny a defendant’s pre-trial motion for self-defense immunity by a preponderance of the evidence, ultimately they will still have to disprove at trial the defendant’s claim of self-defense beyond a reasonable doubt.
So what, one may wonder, is the difference if they instead have to disprove self-defense immunity beyond a reasonable doubt at a pre-trial hearing?
The difference is that by the time a trial jury has to deliberate on whether the prosecution has disproved self-defense beyond a reasonable doubt that prosecution has had months to thoroughly investigate the case and weeks to make its arguments in open court with voluminous evidence directly to a jury.
At a pre-trial hearing with a similar burden beyond a reasonable doubt the prosecution must meet that enormous burden after perhaps just days or weeks of investigation and with only hours in court before a single judge.
In effect, should HB 169 become law it will be far less likely that the State will be able to bring a legitimate case of self-defense to trial. It will also, however, mean that there will be an enormous increase in the number of marginal self-defense cases that will now qualify for self-defense immunity and therefore will not be able to be brought to trial under the new law, although they would have been brought to trial under the old law.
Unquestionably, passage of HB 169 would mean that some unknown number of bad actors whose self-defense cases should be defeated will manage to avoid criminal prosecution. Whether this is a worthy balance in exchange for greater protection for lawful self-defenders is a policy decision for the Florida legislature.
Certainly it is a fundamental facet of American jurisprudence that is better to allow nine guilty men to escape conviction than it is to allow even one man to be convicted wrongly, a sentiment which would support passage of the bill.
Third, HB 169 Would NOT Have Helped Marissa Alexander
Even allowing that HB 169 would allow a great many marginal claims of self-defense to qualify for self-defense immunity, that does not mean that all claims of self-defense would qualify for immunity. It is beyond imagining that even this YUUUUUGE change would have helped Marissa Alexander. Alexander’s claim of self-defense was ridiculously weak on so many fronts that I haven’t the time to recount all of them. For anyone who cares for the details, simply check out our many Alexander case posts right here at Legal Insurrection. I’ll simply note that Alexander conduct simply did not qualify for self-defense, period.
As promised, here’s the actual text of HB169:
Attorney Andrew Branca and his firm Law of Self Defense have been providing internationally-recognized expertise in American self-defense law for almost 20 years in the form of blogging, books, live seminars & online training (both accredited for CLE), public speaking engagements, and individualized legal consultation.
“Law of Self Defense, 2nd Ed.” /Seminars / Instructors Course / Seminar Slides / Twitter / Facebook / Youtube
Donations tax deductible
to the full extent allowed by law.