The Presumption of Immunity: Florida's New Stand Your Ground Law and the Challenges for Prosecutors

           Roger Powell

             We have a society governed by laws and organized into a system aimed at justice based on these laws.[i]  We have certain procedural safeguards in place and one such procedural safeguard in the United States is the presumption of innocence, where every defendant is presumed innocent unless evidence is shown to the contrary.[ii]  In 2005, Florida passed a highly controversial law known as Florida’s “Stand Your Ground” Law.[iii]  Florida previously relied on a combination of statutory and case law interpretation regarding which burden to apply and whom should it apply too.[iv]  The Florida Senate put forth a new law in regards to the immunity granted from the Stand Your Ground law that embodies further this procedural notion.[v]  Senate Bill 128, proposed by Florida Senator Rob Bradley, stated:

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).[vi]

Not only has the Florida Legislature passed a law that eliminated the duty to retreat, but the Florida Legislature has also amended that law so now someone who uses deadly force to protect against an unlawful, deadly threat is presumed to be innocent—no ifs, ands, or buts about it.[vii]  No longer will a person left standing after a shoot-out or physical dispute be subject to doubt about their use of force.[viii]  Now, Florida prosecutors have an obstacle to overcome; if a defendant claims he acted in self-defense and raises this defense, the State has the burden to prove how the defendant is not entitled to criminal immunity.[ix]

If a prima facie case of self-defense is proven or police lack the probable cause of an unlawful act, the police are prevented from arresting, or even detaining, an individual who has resorted to deadly force and asserts their self-defense justification.[x]  Some believe the Stand Your Ground law has hindered prosecutors.[xi] In trial preparation, prosecutors evaluate the defendant’s possible guilt with two simple questions:  did they perform the criminal act, and with what culpability?[xii]  


[i].            Greg v. Georgia, 428 U.S. 153, 183 (1976).
[ii].           Coffin v. United States, 156 U.S. 432, 452 (1894).
[iii].          Fla. Stat. § 776.012 (2005).
[iv].          See Weiand v. State, 732, So. 2d 1044, 1049 (Fla. 1999).
[v].           S. 128, 2017 Leg., 119th Sess. (as proposed by Fla. S., Dec. 8, 2016).
[vi].          Fla. H.R. Comm. on S. 128.
[vii].         Id.
[viii].       See id.
[ix].          Id.
[x].           See Fla. Stat. § 776.032(2).
[xi].        Taylor J. Rushing, Deadly-Force Law Has an Effect, but Florida Hasn’t Become the Wild West; State Attorney’s Say It Makes Filing Charges More Difficult for ProsecutorsFla. Times Union, July 10, 2006, at A-1 (emphasis added).
[xii].         See Francis Bowe Sayre, Mens Rea, 45 Harv. L. Rev. 974, 974 n.3 (1932).

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