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 Prosecutors, Fla. 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).
