Image 01 Image 03

Florida Effort to Change Burden on Self-Defense Immunity Fails

Florida Effort to Change Burden on Self-Defense Immunity Fails

Burden to remain on accused to prove self-defense by a preponderance of the evidence

A couple of months ago we posted here about the effort of Florida legislator Dennis Braxley to change Florida’s self-defense immunity law: Major Change Proposed for Florida Self-defense Immunity Law.  

Under the proposed change a person claiming self-defense immunity for their use of force against another could be denied that immunity only if the prosecution could disprove self-defense beyond a reasonable doubt. That effort has now failed, reports the Bradenton Herald.

Current Florida law will remain in effect, requiring that a person claiming self-defense immunity bear the burden of proving self-defense by a preponderance of the evidence. That legal standard had been applied by the courts for several years, and then was explicitly affirmed by the Florida Supreme Court in a 5-2 decision this past July. That decision, Bretherick v. State, 170 So. 3d 766 (FL Supreme Court 2015), is embedded below.

All of the procedures around the actual implementation of Florida’s self-defense immunity statute have necessarily been created by the courts, because the statute itself failed to set forth any such procedures.

It was in response to Bretherick that state representative Braxley, who also played a key role in the initial passage of self-defense immunity, put forward the bill to require that the burden of persuasion, beyond a reasonable doubt, be placed on the prosecution, rather than on the accused.

The Bradenton Herald report linked above describes in some detail the political maneuvering employed by mostly Democratic pols to kill Braxley’s changes.

Here’s the Bretherick decision:

–-Andrew, @LawSelfDefense

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.


I read the news earlier on MSN.

Funny, in their article it was “Stand Your Ground” immunity. I read the thing, chuckling and eye-rolling all the time.

    Exactly: look at the way this is worded… and this is in a heavily-Republican county of Florida, where people know better. “Stand Your Ground Bill Struck Down”. It says nothing about the fact that all that was struck down was a bill that would have shifted the burden of proof for self-defense immunity claims. So now there are people on social media claiming that this is a huge win for the anti-gunners, that Florida’s “crazy” #StandYourGround law has been struck down or something.

      Milhouse in reply to Amy in FL. | November 18, 2015 at 11:25 am

      “Struck down”?! Who’s using that language?! The piece you linked to doesn’t use it. Nothing has been struck down. A bill died in committee, as thousands of bills do.

        When headlines announce, “Florida ‘Stand Your Ground’ Bill Killed,” there are low-info voters out there who only see the headlines and who infer that ‘Stand Your Ground’ has been struck down. Seriously, there are. They don’t understand that Florida’s laws regarding self-defense are the same today as they were yesterday, and the day before. They are acting as though they’ve had a “win” in the “war against #SYG”.

        A headline like “Bill to Change Burden on Self-Defense Immunity Fails” wouldn’t have confused them as much, and would have had the added bonus of being more accurate to boot.

      Another Ed in reply to Amy in FL. | November 18, 2015 at 4:24 pm

      While St. John’s County, which contains County Seat St. Augustine, does have a majority of registered voters who are Democrats, that is not the case for other counties. Nearby Duval County, which contains County Seat Jacksonville, has a majority of registered Democrats:

      Going back to 1972, in the entire state of Florida there are more registered Democrat voters than registered Republican voters:

      What is notable is the large amount of registered voters who desire not to be affiliated with any political party.

        Another Ed in reply to Another Ed. | November 18, 2015 at 4:27 pm

        Editing error. That should read:

        “While St. John’s County, which contains County Seat St. Augustine, does have a majority of registered voters who are Republicans, that is not the case for other counties.”

        St Augustine is St Johns County, as you accept. And what I said is true – it is a heavily-Republican county. As for Duval County (not that I know what the local St Augustine paper has to do with them, since Jax has its own daily rag, but anyway…), they may technically have more registered Democrats than they do registered Republicans, but they lean Red in elections anyway.

        Duval County’s recently-elected Sheriff and Mayor are both Republicans, and in the last 7 presidential elections, they’ve gone Republican. So, technicalities aside, I think we can probably consider it a “Red” county.

Now that we have spell checker, anyone can be a “journalist”.

Char Char Binks | November 17, 2015 at 7:55 pm

It was a ridiculous bill; a hearing is not a trial.

I’m glad. The current balance is the correct one; if you want to avoid having to go to trial then it’s up to you to show that you’re at least probably innocent. If you can’t do that, then the public deserves a trial, at which it will be the state’s job to show that you’re definitely guilty. If it can’t do that then you deserve to be acquitted.

    DaveGinOly in reply to Milhouse. | November 17, 2015 at 8:19 pm

    Isn’t the presumption of innocence operable in all phases of a trial? And isn’t the burden of proof always supposed to be on the state?

      “Isn’t the presumption of innocence operable in all phases of a trial?”

      Sure. But a pre-trial hearing is PRE-trial. 🙂

      Once in the trial proper, the FL prosecutor must still disprove self-defense beyond a reasonable doubt. And the defense is free to make a claim of self-defense immunity in the trial proper, even if they were unsuccessful pre-trial.

      But if you’re asking the state to grant immunity pre-trial, the burden is on you to prove self-defense by a preponderance of the evidence.

      –Andrew, @LawSelfDefense

      Innocence of a deed is different from innocence of a crime.

      You’re standing there over a dead body; you’ve already admitted that you’re the reason that it’s lying there. You’re not innocent of the deed, a deed which typically is a crime. It’s on you to show why you should not be charged with a crime.

      Doing it the other way around is asking the prosecutor to demonstrate your innocence. Good luck with that one.

This was a really ambitious bill, and I was never all that comfortable with it to begin with. As I remarked when they introduced it, “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.”

Everyone wants to see the rights of those who engage in lawful self-defense protected, and they pretty much already are in the quiet majority of cases that don’t go political and don’t make the press. But nobody wants to see actual murderers go free because we’ve tipped the scales too far in favor of anyone who fires a gun and then claims “self-defense.”

I think this is probably the best outcome.

I’m of two minds.

On one side if you’re going to make the claim of self defense IMO it should be on the defendant to prove his case. Think of the phrase ” If you’re going to make a claim it’s on you to support it”.

On the flip side the Prosecution has enormous resources it can bring to bear on any defendant, and if the prosecutor is unscrupulous, unethical, criminal, or just want to make an example out of you there’s very little you can do about it if you don’t have a ton of cash lying around ready to buy you the best defense you can get.

Maybe I wouldn’t be wondering if shifting the burden of proving self defense from the defendant to the prosecutor makes sense if we didn’t see case after case of law enforcement officers (Cops, prosecutors, and judges) abusing their authority and screwing people over.