Florida’s Proposed “Stand Your Ground” Law Goes Too Far

Florida’s Stand Your Ground law has come under increasing scrutiny in recent years. After George Zimmerman was found not guilty in the killing of Trayvon Martin, many people called for its repeal. Others, however, think that the Stand Your Ground law didn’t go far enough, and want to make its provisions even tougher.

To that end Rep. Dennis Baxley and Sen. Rob Bradley have introduced new legislation that would change the Stand Your Ground law in a way that would make it nigh impossible for the prosecution.

The new law would shift the burden from the defendant to the prosecution to prove that the defendant did not reasonably believe using deadly force was necessary to defend himself or herself or another against another person’s imminent use of unlawful force. The prosecution must prove this beyond a reasonable doubt. If it can’t then the case gets dismissed. This change comes after a decision from the Florida Supreme Court reaffirmed the idea that the defendant bears the burden of proof on the Stand Your Ground defense – that if you raise the defense, you have to prove you’re entitled to it.

If that wasn’t enough, the new law has an automatic attorney’s fee provision built into it. Basically, if the prosecution can’t prove beyond a reasonable doubt that the defendant isn’t entitled to dismissal of the case under the Stand Your Ground defense, then the defendant is automatically entitled to their attorney’s fees and expenses in defending the case, up to $200,000.00. Why $200,00.00? That’s the limit of the sovereign immunity cap in Florida – basically what the government can be liable for to a private individual without legislative approval of a special claims bill.

This proposed law basically turns the concept of an affirmative defense on its head. In any criminal case the prosecution has to prove every element of the crime beyond and to the exclusion of any reasonable doubt. Here’s an example: if a person under 21 is charged with unlawful possession of an alcoholic beverage, the prosecution has to bring that beverage into court and prove that it contains alcohol. A photo of the container doesn’t cut it. An empty beer bottle doesn’t cut it. This can cut powerfully in favor of the defendant. But, if the defendant pleads an affirmative defense to the crime, it’s up to the defendant to prove that the affirmative defense applies. Affirmative defenses to crimes are generally things like necessity (“I had to do it”) or entrapment (“the cops made me do it”). The prosecution shouldn’t have to prove that the cops didn’t make them do it in every case, because that’s not an element of the crime. Likewise the prosecution shouldn’t have to prove that the defendant in a murder case didn’t reasonably believe using deadly force was necessary to defend himself.

As a criminal defense attorney I’m generally in favor of laws that make sure the prosecution’s job in proving guilt as difficult as possible. People are innocent until proven guilty. This part of our law is a powerful protection against the generally unchecked power of the state, which has been eroded by prosecutorial overreach thanks to things like harsh mandatory minimums. The cynic in me thinks that this will be a great boon to criminal defense attorneys everywhere – it would make it nigh impossible to prove a manslaughter case under many circumstances. But this is a bridge too far.