Sunday, April 9, 2017

Important Changes to Florida's Stand Your Ground Law on the Horizon

Florida's "Stand Your Ground" laws justify the use of deadly or non-deadly force, as the circumstances may warrant, to defend against the imminent and unlawful attack of another.  Under its provisions, which are codified in Florida Statutes sections 776.012, 776.013, and 776.032, a person who is justified in the use of force has no duty to retreat, may stand his or her ground, meet force with force, and is immune from both civil and criminal liability for having done so.  As a St. Petersburg criminal defense attorney, I am often asked by prospective clients, charged with crimes involving the use of force or violence, whether a pretrial "stand your ground immunity motion" should be filed and litigated.   The answer, is "it depends".  

The issue of immunity is raised by filing a pretrial motion to dismiss under Florida Rule of Criminal Procedure 3.191(b)(for more detailed reading on the applicable law, see The Kilfin Law Firm, P.C.'s blog post entitled "What is a Stand Your Ground Immunity Motion?").  Unlike the more common (c)(4) motion to dismiss, the court cannot deny it simply because there are issues of fact.  The court must function as the fact finder in stand your ground immunity hearings, and must then apply the law to those facts.  

As you are probably aware, the state (or government) bears the burden of proof in any criminal case, whether it involves driving without a valid license or first degree murder. The state's burden of proof is "beyond a reasonable doubt", which is the highest burden of proof in the American legal system. There is, however, both a caveat and an exception to this fundamental legal principle. 

The caveat is what is called an "affirmative defense".  In many criminal trials, the defense to be employed is simply that the state has failed to meet its burden of proof.  In a DUI refusal case, for example, the defense would (in all likelihood) argue that the accused person's driving pattern, which served to justify the initial stop, was not indicative of impairment, the person's less than perfect field sobriety test performance is attributable to factors other than alcohol consumption (such as back pain, knee pain, or nervousness), and that his or her refusal to blow was not based on a "consciousness of guilt". Given the totality of the circumstances, the argument would go, the state has not proven impairment beyond a reasonable doubt, and you (the jury) should therefore find the defendant not guilty.  In other instances, however, the accused person will raise, through his or her criminal defense lawyer, an affirmative defense.  Florida recognizes a number of affirmative defenses, including insanity, alibi, entrapment, and the justifiable use of force.  Under these circumstances, the state must first prove the elements of the crime itself.  Once that occurs (e.g. after the state has presented its case-in-chief), the burden shifts to the defense to put on "prima facie" evidence in support of the applicable affirmative defense sought to be raised.  In a murder case, for example, the state would first attempt to prove that a murder occurred, and that the accused is the person who committed it. During the defense's case-in-chief, the accused would then put on evidence, typically through expert testimony, that while she committed the crime, she was insane at the time, and therefore not guilty. The defense must put on at least some evidence in support of the affirmative defense before the judge can instruct the jury on it, thereby allowing the jury to consider it in their deliberations. Once the accused puts on prima facie evidence in support of the affirmative defense, the burden of proof shifts back to the state to prove, beyond a reasonable doubt, that the affirmative defense does not apply. In our example, the state would, after first proving the elements of murder beyond a reasonable doubt, then also be required to prove that the defendant was sane at the time the crime was committed, and therefore guilty. The burden still ends up with the state and it is for that reason that the affirmative defense situation is more of a caveat than an exception. 

The exception to the tenant that the burden of proof in a criminal case is on the state exclusively (and that the accused does not have to prove or disprove anything), is found in the stand your ground immunity hearing.  Here, Florida law places the burden of proof on the accused; that is to say the accused is required to prove, by a "preponderance of the evidence", that he or she was justified in the use of force and is therefore immune from prosecution. When Florida's Stand Your Ground provisions first took effect in 2005, there was much confusion among the various District Courts of Appeal as to whether the it was the state who bore the burden of proof in an immunity hearing, or the defense. The Florida Supreme Court resolved the much of the uncertainty, holding that the trial court should decide the factual question of the applicability of statutory immunity and that the defendant has the burden of proving that immunity attaches by a preponderance of the evidence.  See State v. Dennis, 51 So.3d 456 (Fla. 2010); see also Bretherick v. State, 170 So.3d 766 (Fla. 2015). In situations where the defendant does not prove, by a preponderance of the evidence, that he or she was justified, the issue can be raised again at trial, in the form of an affirmative defense.  At trial, the state must prove the elements of the charge, and must then prove that the accused was not justified in the use of force. 

So what are the proposed changes to Florida's Stand Your Ground law?  In an April 5th, 2017 article, the Tampa Bay Times reported that the Republican-led Florida House passed SB 128 that would shift the burden of proof, in a stand your ground immunity hearing, from the defense to the state.  In other words, where the defense files a motion to dismiss based on the justified use of force, the state must prove that the accused was not justified, rather than the accused having to prove that he or she was justified.  If the State does not meet its burden, then the charge would be dismissed. If the state does meet its burden then, like the current procedural framework, the defense may raise the issue a second time before a jury. Many prosecutors, obviously, do not support SB 128 because it would, in many instances, require the state of Florida to prove its case twice: once before a judge in a pretrial hearing, and then again before a jury in a trial setting. 

According to the Times article, the House and Senate will have to pass identical bills before the law can be sent to Governor Rick Scott for signing.  The hold up, at this point, is only on the standard of proof.  The House proposes holding prosecutors to a "clear and convincing evidence" standard, whereas the Senate supports a "beyond a reasonable doubt" standard.  The Times reports that Florida Senators "will likely decide their course of action next week; they could make further changes or accept the House's language, which would send the bill to Governor Scott's desk".  While "clear and convincing" is a lesser standard of proof than "beyond a reasonable doubt", it is still appreciably higher than the defendant's "preponderance of the evidence" standard under the current state of the law. 

As stated above, I am often asked by clients, in appropriate cases, whether a stand your ground immunity motion should be filed and litigated, and the answer is not always a resounding "yes". There are some downsides.  First, assuming a burden of proof always presents challenges right out of the blocks - its called a "burden" for a reason.  Litigating these types of motions may also draw the state's attention to certain issues that may not have otherwise been apparent, which will make the state better prepared should the case be tried.  Also, the accused must usually testify if the defense's burden is to be met, which means the state now has a sworn statement that can be used to impeach the accused should the motion not be successful and he or she testifies at the ensuing trial. Under the proposed new law, the decision to not run the motion would become much harder, especially if the state must prove lack of justification beyond a reasonable doubt. 

No matter the applicable standard, a shift in the burden of proof to the other side of the courtroom would be welcomed warmly by criminal defense attorneys throughout St. Petersburg, Clearwater, Tampa, and surrounding areas.   It will present some very meaningful opportunities for those accused of crimes involving the use of force to have their charges dismissed or, at the very least, to negotiate for a more favorable disposition than may have otherwise been possible.  I will keep you updated as this progresses.

The Kilfin Law Firm, P.C. is Tampa Bay area DUI and criminal defense firm representing clients in St. Petersburg, Clearwater, Tampa, New Port Richey, Dade City, and Bradenton