Image 01 Image 03

Florida Changes Burden of Proof of Self-Defense Immunity

Florida Changes Burden of Proof of Self-Defense Immunity

The statutory change explicitly specifies criminal immunity

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 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.


Donations tax deductible
to the full extent allowed by law.


Many defense lawyers felt the Florida Supreme Court imposed too heavy a burden on defendants in self defense immunity hearings. The relevant section of code FLA. STAT. §776.032 (2016) provides for immunity but only speaks to a standard necessary for an arrest. It was felt that the court imposed standard was too high.

(1)”A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened …
(2) …but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.

Bucky Barkingham | June 11, 2017 at 7:39 am

The clueless press, of course, will report that this change will result in carnage on the streets. Just as they do whenever concealed carry is enacted in a state.

    Wrathchilde in reply to Bucky Barkingham. | June 11, 2017 at 9:05 am

    Michigan appears poised to enact Constitutional Carry, following the trend in States lately.

    Waiting for Mitch Albom’s newest “Blood in the Streets!!!” article anytime now. ‘Cause it worked so well the last time.

    It is nice to see Florida tightening up the language in the statutes, but truly sad to see that spelling out what common sense is has become necessary.

I have studied and dealt with the standards for the granting of a motion of dismissal for statutory immunity from prosecution for self defense since its inception. and, both sides of the argument mischaracterize both the original legislation and how the courts dealt with the issue.

Background: In 2005, pro-self defense groups made claims of rampant filing for criminal charges against “anyone” who used deadly force in self defense. They further charged that prosecutors filed such charges almost automatically filed such charges even when it was reasonable to assume that the person utilizing such force did so lawfully. And, that, once filed, the defendant was forced to attend a trial to present a valid defense of self defense. That same year, the Florida Legislature passed a bill which established guidelines for when an arrest could be made, once a claim of lawful self defense was raised, and authorized the courts to conduct a pretrial hearing on a motion to dismiss due to statutory immunity from prosecution for lawful use of deadly force. The courts decided to utilize the same standards for a hearing for dismissal on these grounds that was applied to those used in any other pretrial motion hearing. This meant that the party filing the motion bore the burden of proving that he was entitled to the action sought in the motion and the level of proof necessary for granting the motion was simply a preponderance of the evidence, the second lowest level of proof necessary.

So, in a use of force case, the investigative agency was required to develop probable cause that the forced used was not lawful. A magistrate ruled on whether sufficient probable cause existed that the force used was not lawful. And, the accused could now present evidence, in a pretrial hearing, for dismissal of the charges by showing, through a preponderance of the evidence, that the use of force WAS lawful. If the motion was not granted, then the defendant was free to present his case for lawful self defense at a regular trial. Practically, this means that, if everyone in the criminal justice system does their job properly, a person would only be arrested, charged and forced to go to trial for unlawful use of deadly force IF probable cause existed that the force was not used lawfully, that the probable cause was valid AND that the defendant was not able to prove, by the second lowest standard of evidence, that the use of such force was lawful. So, yes, granting motions of dismissal for statutory immunity were very rare. In order for one to be granted, either the defendant had to uncover new evidence that showed that the use of force was lawful, or proof that the members of the criminal justice system, involved in the case, were careless, incompetent or corrupt.

The current bill is a compromise. The bill, as originally presented, required that the state prove, beyond a reasonable doubt, that the force used was unlawful. This would have required the state to put on an actual trial in a pretrial hearing. Further, it would require the state to repeat this if the motion was not granted. In essences, it placed the citizens of the State of Florida in a position of double jeopardy, by requiring two trials, before two triers of fact, to convict a person of a specific criminal offense. And, it would have not only at least doubled the costs of the prosecution, but would have placed an unfair burden upon witnesses.

The current bill still puts an unfair burden upon the criminal justice system and the citizens of Florida. But, it is livable. It requires that the defense present a PRIMA FACIA case [the lowest level of proof necessary in a judicial proceeding] that the force was used lawfully. The state then has to show, by CLEAR AND CONVINCING EVIDENCE [the next highest level of proof], that such force was not lawful. The only thing that this bill really does it to lower the burden of proof for the defendant and raise it for the state. Practically, it will have almost no effect on the number of people granted dismissal for immunity, as the number of people who are charged with using unlawful force, while using the force lawfully, is miniscule and most of those prevail in an immunity hearing under the old system.

Bottom line: the Pro-self defense people and the defense attorneys successfully gamed the system to give themselves an edge in criminal proceedings. It won’t really change the status quo significantly, but it will have little positive benefit for people who lawfully use force in self defense.

If only the FL legislature would shrink the prohibited places list while they’re at it.

“It requires that the defense present a PRIMA FACIA case [the lowest level of proof necessary in a judicial proceeding] that the force was used lawfully. The state then has to show, by CLEAR AND CONVINCING EVIDENCE [the next highest level of proof], that such force was not lawful.”

Clear and convincing evidence is NOT the “next highest level of proof” after prima facie.


    “Clear and convincing evidence is NOT the “next highest level of proof” after prima facie.


    Correct. Thanks for noting that so that I may correct it.

    My coffee had apparently not kicked in when I wrote this post. What I meant to say is that “clear and convincing evidence” was the next highest level of evidence after the “preponderance of the evidence” standard used prior to the enactment of this bill.

    I was trying to point out that the Legislature lowered the evidenciary level for the defendant by one level [to prima facia], while raising it by one level [to clear and compelling] for the state over what it was prior to this bill being enacted.

Gremlin1974 | June 11, 2017 at 5:24 pm

So is this a good thing or a bad thing, or is it just a neutral thing? Not being a lawyer I can’t tell honestly. What does this mean for those who seek self defense immunity in Florida?

    Having the defendant prove self-defense by a preponderance of the evidence should, in an ideal world, be fine. But it didn’t work, because of the political decision-making of the judges tasked with making that evaluation. So the legislature is tightening down on their discretion.

    We had effectively reached the point where self-defense immunity didn’t exist for practical purposes in Florida. That clearly was not the legislatures intended goal. So they’ve had to step in.

    This is also how we end up with mandatory sentencing laws, which also would not be required if the judiciary was functioning properly. But it doesn’t, so we get them.


      I have to disagree with this statement. The system worked very well.

      The original goal of the Legislature was to eliminate the ARREST of people who clearly used deadly force lawfully in self defense. That was the language of the substantive changes made to 776.032 in 2005. And, it has worked out very well. It was never the intent of the Legislature to grant statutory immunity for the use of force, including deadly force to anyone claiming it was used legally.

      As it stood, there were three, yes three, safeguards built into the statute regarding immunity for lawful use of force in self defense, prior to trial. The first was the prohibition against arrest until probable cause existed that the force used was not used lawfully. The second was the scrutiny by a magistrate of the validity of the claimed probable cause for the arrest. The third was the pretrial immunity hearing, in which defendant could present a case for lawful use of force in self defense and, if proven by a preponderance of the evidence, immunity would be granted. Now the defendant is required to prove a prima facia claim of lawful use of force in self defense. After which the state has to show, through the presentation of clear and compelling evidence, that the force used was not lawful. This is not that difficult, in most of these cases. The claims of the defense attorneys and pro-gun activists not withstanding, most of arrests in these cases occur after a prima facia case has been presented, not merely a probable cause case. And, most prosecutors are going to have at least a case based upon clear and compelling evidence before charges are filed. The prosecutor wants to win the case at trial and he is going to need evidence that meets the standard of beyond a reasonable doubt to do that. As the courts have already ruled that the decision in the pretrial hearing has to be made on the basis of real evidence not on an interpretation of evidence or upo0n speculative evidence, most of the arguments used in a jury trial will not be able to be used in a pretrial immunity hearing.

      It is almost impossible to find a single instance where a defendant was not granted immunity in a pretrial hearing was later found not guilty at trial, even with the absolutely horrible jury trial system that we have.

        Marcus in reply to Mac45. | June 11, 2017 at 6:43 pm

        So let me ask you, Mac45, how comfortable are you with having to undergo the “scrutiny” next in the event it is you who has to shoot some asshole down in the presence of “beyond a reasonable doubt” that said asshole was in the process of taking your life, save for your response. You may trust the legal process. I sure as shite don’t.

        Oh, and ask the person to whom you made reference in your assertion that it is “almost impossible to find a single instance, blah blah blah” how he/she is enjoying their incarceration.

        Bruce Hayden in reply to Mac45. | June 12, 2017 at 6:07 am

        The place where I question your assumptions is where you claim, or at least suggest, that the primary goal of prosecutors is to gain convictions. I think that the counter example that most here can think of for Florida was the George Zimmerman prosecution. By the time the trial was over, it was pretty clear that the prosecution never really had a case. The joke was that the defense proved self defense beyond a reasonable doubt, when the prosecution had that burden to disprove it. Yet, they indicted and went to trial anyway. Why? My belief, and likely that of most of those here who followed the case closely, was that the prosecution was 100% political. They knew well before charges were filed that there was substantial evidence showing self-defense, and little disproving it. (And, yes, I realize that his attorneys never availed themselves of the immunity hearing available under this statute).

        The worry always is that the real reason that prosecutors push cases where they are unlikely to disprove self defense beyond a reasonable doubt, is that the pre-trial and trial process themselves are the penalty for using legally justified deadly force in self defense. Hundreds of thousands of dollars, and months out of your life, just for legally protecting yourself. And, if you can’t afford good counsel, then they might win anyway, or force you to cop a plea to a lesser offense, which, coincidentally maintains their conviction rate.

        Think of it as a pendulum. The law gets pushed in one direction until it goes too far, then swings back in the other. Elimination of the Retreat Doctrine has been enacted throughout much of the country because prosecutors were convicting people who had used deadly force in self-defense by showing avenues of potential retreat that were visible after months of research, when the defendants typically had seconds to find them. In this case, it is pretty obvious that prosecutors were still pushing cases (like the Zimmerman case) where there were strong cases for self-defense, letting the process be the penalty. The Preponderance standard wasn’t working, so the legislature upped the ante. Now, if there are some high profile cases where obvious guilty parties walk as a result of this change of the law, it will likely swing back the other way.

        Let me add that tying the hands of prosecutors in this manner is at least partially a result of them having pretty good immunity themselves. What is the penalty they face when prosecuting people when they don’t have a good case? They are unlikely to go to jail themselves, don’t typically face civil liability, and are unlikely to lose their jobs if the prosecutions are politically popular, or the defendants are powerless. Sure, the state bar could discipline them, but Florida, at least, is fairly notorious for attorneys being able to buy themselves out of bar discipline.

        ConradCA in reply to Mac45. | June 12, 2017 at 2:42 pm

        George Zimmerman used deadly force that was clearly in self defense yet he face a long trial charged with murder. The law didn’t work.

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.

There’s the mistake right there. Making anything and implementing/repairing/maintaining it are entirely different things. Any manager quickly learns that it’s up to him to define the jobs of his employees; if he leaves it up to them, they’ll arrange the work day to suit their convenience, not that of his customers or his investors. Here, the legislature neglected its responsibilities and left too much up to judges’ prejudices and whims.

I imagine that here the legislators ran into a sticking point they couldn’t agree on, so they just pretended it wasn’t there, legislated around it, and hoped for the best. That’s no way to build a rocket for a trip to the moon, and it’s no way to write laws which could drive someone to bankruptcy or jail.