Florida’s “stand your ground” law has received a lot of attention in the press since it was passed a dozen years ago. It has been a controversial issue, to say the least. Now, with the passage of Senate Bill 128, it is in the news again. (we will talk about the big changes a little bit further down). Surprisingly, with all the news coverage, many people don’t have a good grasp on what these laws actually do and how they operate. First of all, there is no law called “Stand Your Ground.” There are actually a number of different laws addressing the issues under the umbrella concept of what is generally referred to as “Stand Your Ground.” What these laws really do is provide for immunity from prosecution for using or threatening to use force if you act in self-defense, defense of your property, or in the defense of another. This means you shouldn’t even be arrested if you use self-defense, and you most certainly shouldn’t be prosecuted. Usually, though, a person is arrested for assault or battery and they have to raise their claim for immunity before a judge through a motion filed by your lawyer.
In the course of our careers, we have filed many motions raising immunity. While the cases that make the news usually arise in the context of a homicide by gunshot, there need not be deadly force used to trigger the protections of the Stand Your Ground law. The more frequent example is a common fist-fight. One person hits or threatens another and the victim fights back. This usually degrades into an argument about who hit who first and the police have to make a decision about who they believe “started it.” Anyone who has been in a schoolyard scuffle is likely familiar with the basics. Oftentimes, the police (and gym teachers) pick the wrong person to arrest (or send to the principal’s office). However, the law on immunity can be applied in a broad range of situations beyond the common fist-fight. We have raised immunity from prosecution in a wide variety of scenarios: someone committed a battery to stop another from breaking their cell-phone; someone committed a battery to break up a fight; someone committed a battery to stop someone from jumping out of a moving car; someone committed a battery to stop someone from committing suicide. The list goes on and on.
Before we discuss the “big changes” (bear with me, for a minute), first we need to explain how things work right now. So, you got into a fist-fight. You didn’t start it, but you finished it. Because the loser hold a grudge, he calls the police and because he is in worse shape than you are, the beat-cop decides to arrest you for battery (or something worse, depending on just how bad of a shape the other guy is in). Your lawyer files a motion for immunity, seeking to have the case dismissed. You tell the Judge what happened, the other guy tells the Judge a pack of lies, saying that you actually started the whole fight and he was just minding his business. There are no other witnesses. Does the case get dismissed? Probably not. You end up in a situation where you have to plead guilty to a crime even though you acted in self-defense to avoid the possibility of jail or prison time, or you can take your chances at trial in front of a jury.
Why does this happen? Well, a couple of reasons. First, you have the burden of establishing self-defense to get immunity. The prosecutor does not have to prove anything. Second, you have to prove you are entitled to immunity by a “preponderance of the evidence.” This is legal jargon that means it is more likely than not that you acted in self-defense. Third, judges don’t like dismissing cases when there is even the possibility that you might be guilty of a crime. Oftentimes in this he-said/she-said situation the judge can avoid dismissing the case by simply saying, “Well Mr. X says one thing and Mr. Y says another. I have no idea who actually started this thing.” Then the judge denies your motion and you find yourself looking at a trial or entering a plea. Now, you probably have a good chance of winning at trial, because the jury must find beyond a reasonable doubt that you did not act in self-defense in order to convict you, but they also might not like your haircut and convict you anyway.
So, what are these big changes?
There are two. First the new law would place the burden on the prosecutor. Now they have to prove you did not act in self-defense. Second, they have to prove it by a higher burden: clear and convincing evidence (more legal jargon, suffice to say it is much more likely than not that you didn’t act in self-defense). These changes take away the easy out for the judge. Now instead of merely saying they have no idea who started it, they have to agree that the prosecutor proved you did not act in self-defense in order to avoid dismissing the case. The big changes mean that you win where before you lost. This is huge.
Now, I know the law is controversial and it has been misapplied in the past. Injustices have been suffered and people have been hurt and gone to prison. The law will continue to remain controversial. Nevertheless, we are criminal defense attorneys. Whether we agree with the law or not is irrelevant. It is a tool in our toolbox, and we will use every tool at our disposal to get your case dismissed. If you or a loved one ever find yourself charged with assault or battery, the changes in the “Stand Your Ground” law could mean the difference between freedom and prison. At the moment of truth, the new law might be the best thing that ever happened to you.