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Major Change Proposed for Florida Self-defense Immunity Law

Major Change Proposed for Florida Self-defense Immunity Law

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:

–-Andrew, @LawSelfDefense

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IF it is passed, I predict it won’t have a very long life. It puts too much on the prosecution, and it will result in people who killed wrongfully being exonerated.

    I tend to agree. While it may be an understandable reaction to some pretty high-profile examples of prosecutorial over-reach, and a lot of us are sympathetic to that in concept; in practice they may be swinging the pendulum a little bit too far to the other side now.

Florida has a vigorously enforced speedy trial law. Often prosecutors will not bring major felony charges until they are convinced they can get a conviction. Naturally law enforcement officers grumble.

So in a State where probable cause is sometimes not enough to even bring charges (outside the political cauldron of a Zimmerman case) will this be a drastic change?

    I suppose the intensity of prosecution objections to HB 169 might be an indication of how substantive a change the bill would accomplish. 🙂

    That said, local rules of criminal procedure are outside my area of expertise, I’ll refer defense counsel who practice under those rules.

    –Andrew, @LawSelfDefense

    MouseTheLuckyDog in reply to sequester. | September 15, 2015 at 5:43 pm

    IIRC the original stand your ground law allowed a person to demand an immunity hearing at any time ( well presumably after the event ). So a person could move for a hearing before the prosecutors could even file. So they might not be ready to prosecute when they appear.

    Sort of like the NFL in deflatgegate.

    Of course I could be remembering wrong.

      The self-defense immunity hearing is a judicial creation. It arises from a defendants motion to dismiss on the grounds of immunity under 776.032 of the Florida Statutes

      The proposed law is in reaction to the recent case of Bretherick v State.. In that case the Florida Supreme Court held that the defendant in an immunity hearing must prove self-defense by a preponderance of the evidence in order to be immunized.

      The proposed law would shift the burden of proof to the prosecution. The controversy is the evidentiary standard — of beyond a reasonable doubt. That standard would create a “two trial” system. First a defendant claim self-defense would be entitled to what would in effect become a bench trial with a beyond a reasonable doubt standard. If the defendant does not prevail, the defendant then gets a de-novo jury trial.

Personally, I thought Florida had pretty much already hit the sweet spot.

It’s also worth noting that the vast majority of self-defense claims are bullsh!t, which is simply a reflection of the reality that the vast majority of uses of force are actually the conduct of criminals.

Criminals LOVE claiming self-defense to justify their use of force. Love it.

–Andrew, @LawSelfDefense

I live in Florida and have a CW permit like many here. Shifting the burden to the prosecution certainly would be a major twist. But, what does concern me is that there are some who currently have CW permits who should no longer own a handgun and they may actually get away with murder under Baxley’s Bill. My bigger concern is over zealous prosecutors (Duval County State Attorney) abusing their authority in a case like Zimmerman so they can notch another victory.

Andrew, session begins January 2016 and also the committees of the Florida legislature are meeting I believe next month and in Novmeber for the upcoming session. This is the time to see a companion bill in the Senate and if there are any other similar bills to be introduced. As of now, with the Florida legislature so unpopular, I no doubt expect it to pass with wide margins.

Obviously Alexander could not qualify since she left the house, at least to the garage, armed herself, and then returned. That sorta beats the self-defense claim to death right there, and in fact provides evidence of premeditation and intent.

But it would have been difficult to prosecute George Zimmerman under the new statute. My guess is that is the purpose of the new law, although it is flawed as Andrew noted.

– –

Florida’s current laws may be about right, but the problem is always the system. Human prosecutors and politicians and judges are inclined to impart their own views upon the written law until they are curtailed.

So Bondi sought to have Zimmerman prosecuted for political reasons, to avoid a Sharpton-led riot. Add in some biased prosecutors and a stupid judge, and it is hard to draft a statute that can protect a citizen from their combined power.

    Add in some biased prosecutors and a stupid judge, and it is hard to draft a statute that can protect a citizen from their combined power.

    Which is why some believe their power should be curtailed, so it can no longer be abused/misused.

    I believe that is, at least in part, the inspiration for this bill.

Wow. Self-defense is one of the fundamental human rights, which derives its legitimacy the unalienable right to life. It’s good that the law is changing to, once again, recognize this relationship.

Next on the docket: indiscriminate killing (harvesting, trafficking, etc.) by the abortion industrial complex. No, ladies, you do not have an exclusive right to terminate your child’s life.

It seems to me this is a natural result of having so many high-profile cases brought to trial and ultimately exonerating the defendants of (most of) the worst charges.

If the defendant is reputationally and financially broken at the end, the prosecution still wins.

Zimmerman was innocent under the law. It never should have been brought to trial, but his reputation and finances are still ruined.

Michael Dunn was mostly innocent — right up until his last four shots (IIRC, fired at the back of a vehicle as it was pulling away). His first six (?) were found to be self-defense. Had he stopped there, he’d be legally fine, but his reputation and finances would still be in shambles from running a costly legal defense.

Marisa Alexander … behaved badly and is still hosed.

It seems to me, Florida might not have “too many” high-profile self-defense cases, so much as they have too many wannabe-high-profile prosecutors aided by too many national media agitators who hate “Stand Your Ground” and self-defense. (IOW, these cases are only high-profile because the prosecutors and media make them high-profile.)

    Dunn’s final burst of fire at the fleeing SUV was three shots.

    Otherwise dead on. 🙂

    –Andrew, @LawSelfDefense

    MouseTheLuckyDog in reply to Archer. | September 15, 2015 at 6:27 pm

    And a felon who probably lied about Dunn getting out of the car and firing on one knee.

      Gremlin1974 in reply to MouseTheLuckyDog. | September 16, 2015 at 2:12 am

      Well if a felon did lie about Dunn taking a knee to fire then Dunn agreed with him. From what I remember Dunn admitted to taking a knee and firing at the vehicle.

    Meanwhile Trevor Dooley is in prison for using deadly force in
    self defense against David James.

    So a white man Michael Dunn aka Miguelito Loveless can start a conflict with Black kids not bothering him. Commit the only act of violence. Killing a black kid who didn’t threaten or harm him. Shoot at other black kids who didn’t harm or threaten him and this white murderer is somehow mostly innocent. Some here have even said he was correct. Andrew even insists on repeating Dunn’s lie that he saw a shotgun. If he saw a shotgun his self defense claim would be valid. We know there was never a shotgun,but that lie would have made Dunn correct.
    But Trevor Dooley can be attacked by a much younger,larger,white man and he’s wrong. Even David James own daughter stated that Trevor Dooley had his hands in the air and said I don’t want to fight you,when her dad attacked Trevor Dooley as he was walking away.

      Gremlin1974 in reply to m1. | September 17, 2015 at 8:16 pm

      Ahhh, yes, today’s dose of racist liberal delusion brought to you by M1!

      “white man”, “aka Miguelito Loveless”, “Black kids”

      And you accuse others of being hung up on race, however you are the one who keeps bringing up race.

      “Killing a black kid who didn’t threaten or harm him. Shoot at other black kids who didn’t harm or threaten him”

      Which is why he was convicted of Murder and Attempted Murder, a verdict supported by this community, regardless of your lies to the contrary.

      “and this white murderer”

      See, there you go again with race.

      “is somehow mostly innocent.”

      Yea, the only place this was ever said was in your delusional fantasy.

      “Some here have even said he was correct.”

      Really, please provide proof that any of the serious regular comment writers ever said this, once all of the evidence was known. I’ll save you some time, it didn’t happen.

      “Andrew even insists on repeating Dunn’s lie that he saw a shotgun.”

      Uhh, its called repeating Dunn’s testimony which has never changed, so when Andrew repeats it he is just repeating fact (i.e. Dunn claims he saw a shotgun.) its not a value statement or agreement.

      “We know there was never a shotgun, but that lie would have made Dunn correct.”

      No, a lie about a shotgun would never have made Dunn correct. Only if there actually was a shotgun would Dunn have been “correct”. However, as the community here and Andrew pointed out on numerous occasions even if the young man had a shotgun it would still be very difficult to justify the second and third volleys of gunfire. Even if Dunn had not been convicted of Murder, he still would have most likely gone down for attempted murder for firing at a fleeing vehicle.

      “But Trevor Dooley can be attacked by a much younger,larger,white man and he’s wrong.”

      Except Trevor Dooley started the confrontation and threatened violence by showing his gun to James. Remember to claim self defense you must be the innocent party, that is really hard to claim when you started the fight and were flashing a gun in front of witnesses.

      “Even David James own daughter stated that Trevor Dooley had his hands in the air and said I don’t want to fight you,when her dad attacked Trevor Dooley as he was walking away.”

      Well this is nothing more than a bold faced lie. His daughter has never testified to anything other than remembering seeing Dooley walk away.

      “Danielle could hardly remember anything. She clutched a toy bunny named Monica as she testified. She has been in counseling for two years. She said she only remembered Dooley trying to go home.”

      I checked this with several sources, Danielle has never regained any more memory of the events even today from what I can find.

      I have some breaking news for you, not everyone cares about skin color as much as you appear to, we care more about detail, facts, and evidence. I suggest you get out of the basement and go back and see whatever mental health professional you have obviously been missing appts with. Oh, and stop sniffing the fabric softener it can do strange things to your brain chemistry.

Just for grits, let’s assume Florida law and the prosecution community have been stupid to this point on the subject. See Zimmerman. Now, a larger and legitimate proportion of self-defense cases and not only not acquitted, they are not even brought to trial.
Does this change the civil suit results? Standing. Frequency. Results. Amount of settlements.

This is a very bad idea.

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.

However it is not a facet of American jurisprudence, fundamental or otherwise, that it’s better to allow nine guilty men to escape trial than it is to try one innocent man. It is a fundamental facet of American jurisprudence (and the British jurisprudence from which it derives) that what it takes to try someone is a prima facie case, no more.

    rabidfox in reply to Milhouse. | September 16, 2015 at 12:56 am

    I think it’s a GREAT idea that the state has to prove a crime was even committed before it goes any further in the process. The idea that an accused had to prove his/her innocence (self-defense) goes against the Constitution.

      Ragspierre in reply to rabidfox. | September 16, 2015 at 10:49 am

      The questions are proves what, to whom, on what standards, and after affording THE PEOPLE what due process to make the case?

      This proposed law skews that too much in favor of an accused.

      Milhouse in reply to rabidfox. | September 17, 2015 at 12:35 am

      Nobody has to prove their innocence. At trial the burden of proof is entirely on the state. But to get to trial the state does not have to prove that a crime was committed. That’s what the trial is for. In our legal tradition all the state has to establish to get to trial is that it has a prima facie case against the defendant.

      In the system contemplated by the framers of the US constitution, the defendant doesn’t even get a say at this stage. Even if he has solid proof of his innocence, he must wait for trial to present it. Many states have modified that to one extent or another, and give defendants a chance to show why they shouldn’t have to go to trial. But that burden is properly on the defendant.

I think this may be a bit overboard. I think it would be much more reasonable to shift the burden to the state by a preponderance of evidence.

    I agree. We still need to be able to convict murderers.

    No. The state bears the burden of proving guilt beyond reasonable doubt, but it does so at trial, not before. To get someone to trial, our legal tradition says all the state has to show is that it has a coherent and plausible case to make, that if taken at face value could justify a conviction. If a defendant doesn’t want to face trial, the burden is on him to refute that showing.

You’re seeing the glaring difference between liberals and conservatives right here in this blog entry.

We don’t gung ho all day at our position with our comrades and do anything to further “the cause”. We reflect on the prudence of an action that is too extreme in either direction. Most of you nailed it that this is too would not see this kind of critical thought in reverse on a hot button liberal issue.

    Gremlin1974 in reply to healthguyfsu. | September 16, 2015 at 1:54 pm

    Which is why this my favorite sight for discussion on many topics, because here, with some notable exceptions there is actual discussion.

Ironically, the greatest beneficiaries of this legislation will be members of minority communities which will be the most vehement opponents of the legislation.

The typical case may be an urban young man unlawfully possessing a weapon, but who engages in lawful self defense. A person, who may end up pleading to a reduced homicide charge because of his inability to gain first rate representation in a crowded urban judicial setting.

    Gremlin1974 in reply to sequester. | September 16, 2015 at 1:49 pm

    Actually, in most places; ” unlawfully possessing a weapon” would sink the self defense claim, from my limited understanding.

      Char Char Binks in reply to Gremlin1974. | September 16, 2015 at 5:05 pm

      Unlawful possession wouldn’t SINK a self-defense claim, but it could in most cases weaken it, if only in appearance, or “optics”, in the parlance of our times. It’s not in the same category as a forcible felony, and it doesn’t negate a person’s right to self defense.

In today’s environment where the prosecutors bring punishing indictments for overtly political reasons (pick your case– they are legion), this change seems correct. Ideally, in a world where prosecutors care about justice, not reelection, or the next office, maybe the comments above against this change have meaning. But the world I see, where there is a large amount of racial and political correctness in bringing indictments instead of justice, the ability to limit the out of control prosecution is very needed.

Self-defense, probably the most intrinsic right of an individual, should have the most robust defense. When the average middle-class person has reason to not defend himself or his property because of the excruciating and often unreasonable fallout in an era of (depending on one’s socio-economic status) no-go neighborhoods, knock-out games, and robbery/carjacking at malls, maybe the system needs fixing.

How can an one look at the Zimmerman case and the many others and not see that the prosecutors are out of control and need better limits. Prosecutors and the legal profession have brought this on themselves by allowing out of control cases. Bonfires of the Vanities started as a series by a little known author in 1984. It is now a real-life long-running series with examples playing on and on. Injustice happens all the time, the choice is whether we must tolerate it from our government or from private individuals.

    Immolate in reply to justaguy. | September 16, 2015 at 11:44 am

    I didn’t downrate you for this opinion, though I disagree. You’re basing your opinion on the Hollywood cases that we all hear about and are all passionately engaged in. But the vast, vast majority of cases are not political, and this law, if enacted, would make it a lot more difficult to bring real crimes to trial. All of us are a lot more likely to be victimized by a crime, whether against our own body or against that of someone we care about, than we are to have to defend ourselves for legitimate self-defense. I can assure you that you do not want to see someone walking around free who assaulted or killed a loved one because the prosecution couldn’t make a 90% case against self-defense in a short time.

While this seems like a good change in the law, let’s take a look at some of the potential negatives here.

First, the petitioner [defendant] is still required to present a prima facie case that lawful self defense existed and that his actions were, in fact, lawful self defense. This has to be done before the prosecution has to present any rebuttal evidence. So, essentially, the petitioner has to prove that a claim of self defense was valid, by providing sufficient evidence to show that the act was done in lawful self defense.

Second, the requirement that the prosecution prove, beyond a reasonable doubt, that the claim of self defense is not valid, places a heavy burden upon the prosecution with no appreciable benefit, to society, if they prevail. In cases where a motion for immunity is filed, the defendant is admitting that he committed the act in question, but that his act was not unlawful because he was conforming to the laws governing the use of force in self defense. If the defendant prevails, he goes free and there is no trial. If he does not prevail, he is entitled to another bite of the apple at trial. On the other hand, if the prosecution prevails, by showing that lawful self defense did not exist beyond a reasonable doubt, they gain nothing, and neither does society, other than a hefty bill for a hearing which could amount to a full trial.

Third, this hearing is being conducted, not before a jury, but before a single trier of fact, the trial judge. As state law requires that any claim of self defense has to be shown to be false or unprovable, before an arrest can be made, it is most likely that the lack of lawful self defense can be proven beyond a reasonable doubt, if the system has worked as intended. But, if the judge decided in favor of the prosecution, it is entirely likely that his ruling will be appealed, automatically. This simply adds more time and expense to the proceedings. And, the chance of a $200,000 payday is more than ample incentive for a lawyer to use any avenue to secure a favorable judgement in such a hearing.

Finally, the whole premise of this change, in the law, is that the criminal justice system does not work. It presumes that the LE investigators will ignore evidence of lawful self defense, that the prosecutor will suppress exculpatory evidence, but, that the judge will be a sterling example of impartiality. Well, that certainly didn’t happen in the Zimmerman case. On the other hand, the criminal justice system actually works just fine with the vast majority of self defense cases. If it didn’t we would have the jails crowded with little old ladies, shop keepers and others who use deadly force to protect themselves. The vast majority of those who use force, or threaten to use force, against another have no viable claim to lawful self defense. But, with $200,000 on the table , what defense attorney wouldn’t take a shot at the prize?

It is a huge change. But it would do very little to help people charged with criminal offenses involving the use of force or threatened use of force and cost the rest of society a significant amount of money for little or no gain.

This change is neither necessary nor significantly beneficial.

basically upholds the innocent until proven guilty tenant.
defendant is no longer required (if it passes) to prove their innocence (really thats what it is) rather it now matches trial.
defendant must be proven guilty.

yeah there will be some that get away with stuff but overall I think its the right way to go.

My biggest problem with the change is not the shift of burden to the state, which I completely support. My problem is with the change in the (forgive me if this is not the right way to say this) change in the level of production needed.

To use Andrew’s “~%’s”, I think having the state have to hit the higher bar of “beyond a reasonable doubt” (~90%) is just to high. You are basically asking them to prove murder before the trial for murder has ever started. Which is just unreasonable to me.

Now for the state to have to prove that there is the good possibility of a crime, which is “preponderance of evidence” (~90%), I think that is completely reasonable and frankly should have been the standard all along. This even fits more closely with Innocent until proven guilty, because the state is having to prove that there is reasonable evidence of crime enough that a jury should be convinced to determine guilt or innocence. However, if it is to the standard of “beyond a reasonable doubt” that makes the state basically prove that is was murder twice.