Florida Legislature Adds Protections for Defendants in ‘Stand Your Ground’ Cases

Florida Gov. Rick Scott (Photo: AP)

“Innocent until proven guilty” has always been a foundational tenet of the United States justice system, but until this week Floridians involved in self-defense shootings were presumed guilty in pre-trial hearings.

Now, with the passage of SB 128, the state will be required to bring “clear and convincing evidence” that self-defense shootings are unjustified before prosecuting the person involved in the incident.

The Florida legislature pioneered the modern “stand your ground” movement by passing a law in 2005 that granted immunity from arrest, detainment, charging and prosecuting unless an investigation by the state revealed a shooting was not lawful self-defense.

In 2015, however, the Florida Supreme Court ruled that defendants carry the burden of proof in the pre-trial hearings designed to determine the lawfulness of the shooting. According to this ruling, courts do not presume the innocence of the defendants. Defendants must prove their innocence with evidence that suggests the shooting was legal self-defense. If a judge determines that the defendant likely broke the law, they will face prosecution at the full trial.

SB 128 moves the burden of proof from the defendant to the state in these hearings. Now state prosecutors will have to prove there is “clear and convincing evidence” that suggests the shooting was illegal.

“Clear and convincing evidence” is not the highest burden of proof. The Florida Senate wanted the standard to be the much higher “beyond a reasonable doubt,” according to the Miami Herald. The House objected to such a high standard, and the Senate eventually agreed in exchange for the House’s support on an unrelated piece of legislation.

Not everyone, of course, believes the legislature made the right decision. Gun control proponents argue that SB 128 will place too great a burden on state prosecutors and force them to prove the defendant’s guilt twice in one case.

“This expansion would place an enormous burden on our state’s hardworking prosecutors, and further create a ‘shoot first, ask questions later’ culture that would threaten the lives of people in our state, especially those in marginalized communities,” said Michelle Gajda with Moms Demand Action in a statement. “I am absolutely heartbroken that Governor Scott is expected to sign this dangerous measure instead of listening to the legitimate concerns raised by gun violence survivors and state prosecutors.”

Gajda is right about one thing: Gov. Scott, a long-time gun rights proponent, is expected to sign SB 128 within the next few days. It will take effect immediately.

About the author: Jordan Michaels has been reviewing firearm-related products for over six years and enjoying them for much longer. With family in Canada, he’s seen first hand how quickly the right to self-defense can be stripped from law-abiding citizens. He escaped that statist paradise at a young age, married a sixth-generation Texan, and currently lives in Tyler. Got a hot tip? Send him an email at jordan@gunsamerica.com.

{ 6 comments… add one }
  • Russ H May 12, 2017, 9:45 pm

    Here’s a summary of the bill from the FL State Senate’s website: “The bill establishes a statutory procedure for a criminal defendant to claim immunity from prosecution based on a justified use of force. This new procedure will replace procedures established by the courts which require a defendant to prove entitlement to immunity by a preponderance of the evidence at a pretrial hearing. Under the bill, the defendant must raise a prima facie claim of immunity at the pretrial hearing. Once the defendant raises the claim, to overcome the immunity, the state must prove by clear and convincing evidence that the defendant is not immune.” All a pretrial hearing is is a “mini” hearing to decide if a defendant will be prosecuted and a judge, a prosecutor(s) and the defense is present. The judge decides ultimately.

    First off, I believe the author has made some big leaps in interpreting the law. “Innocent until proven guilty” is a tenant all courts and attorneys must abide by. Period. Second, probable cause determines if an arrest and prosecution is warranted. Third, “Stand your ground” laws simply mean the citizen shooting in self defense has no duty to retreat or try to escape the situation before using or threatening deadly force. All this is much more complex than the article states. The bottom line: All this really doesn’t change much. Now in pretrial, the prosecutor must give evidence to convince a judge that probable cause exists and that a crime has been committed. It used to be that the defense gave evidence that a crime was not committed. In either case, a judge will decide whether probable cause exists to prosecute so I’m not so sure this changes much – the only thing changed is who is proving their case, the prosecution vs. defense. It’s STILL THE JUDGE who makes the decision to allow prosecution, so nothing in that respect has changed. My point is this: I don’t see this changing much of anything and it appears to be more of a “feel good” law.

    FL has a grand jury system so expect to see some prosecutors going that route (if they can). In a grand jury, only the prosecutor is allowed to give evidence – the defendant likely won’t even know it’s happening. This seems almost unfair because grand juries are nearly always a rubber stamp for the prosecution. I know AZ law but I don’t know FL law so I can’t say.

  • JS May 12, 2017, 11:17 am

    Too many northern liberals are moving here folks. We have to be vigilant as to there progressive tactics against our guns. The older voters are so easily swayed to vote against us out of an illogical fear the media drives relentlessly. I am not denigrating you older voters either as I am past 70 myself.

    • Mister Ronald May 12, 2017, 1:10 pm

      You sure are right on the people coming from the North east states and moving to Florida. They move here and want Florida to be 100% like the state they just came from.
      They buy a house near Disney and then complain about traffic and fireworks.
      They buy a house in Daytona near the speedway and complain about “RACE CAR NOISE” and traffic.
      They complain about Bike Week, Biketoberfest and Spring Break.
      They also can’t stand the right to own and carry a gun for protection when needed.
      I’m 74 and a disabled veteran that can’t run, Can’t fight and need the gun for protection.
      I also love going to the range and wasting my money on bullets and range fees.

  • Lou Fisher May 12, 2017, 10:04 am

    Any one with a gun is guilty! — Thank you Governor Scott for putting innocence back in play –

  • Will Drider May 9, 2017, 10:07 pm

    “Gun control proponents argue that SB 128 will place too great a burden on state prosecutors and force them to prove the defendant’s guilt twice in one case.” What bullshit, its the same evidence and the same as done with Grand Jury and the level of proof is still not as high. This whole thing is a correction to a bastardized and inverted Law. Prosecutors and gun grabbers are just crying over the loss of their cheap trick being eliminated.

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