Florida’s Expanded ‘Stand Your Ground’ Law Has Prosecutors Sounding the Alarm the headline over at thetrace.org proclaims. “‘It’s essentially stacking the deck repeatedly in favor of people shooting other people,’ said one expert” the sub-head warns. Fake news?

[Stand Your Ground law] allows a defendant to call for a hearing before trial, during which he or she asks a judge for exemption from prosecution. In these pre-trial hearings, the burden is on the defendant, who must prove to a judge through a preponderance of evidence — a relatively low standard that means more likely than not — that he or she acted lawfully under “stand your ground.”

Since when is “preponderance of evidence” a low legal standard? Trace writer Mike Spies inserted that editorial comment because without it, a Stand Your Ground (SYG) pre-trial hearing sounds eminently reasonable.

Which it is. So much so, Mr. Spies was obliged to find an “expert” to back up his contention that there will be blood in streets. (Note: there’s always an expert who’ll vouchsafe the anti-gun rights perspective.)

“Outside of ‘stand your ground,’ I don’t know of any other defense that gives defendants immunity from prosecution,” Glenn Hess, a Florida state attorney and the president of the Florida Prosecuting Attorneys Association, told The Trace. “It’s a free bite of the apple for them.”

What does that even mean? SYG does not provide immunity from prosecution unless the judge rules in favor of the defendant. (Civil immunity too, thank God.) It’s just like a grand jury hearing, with a judge instead of a jury. But here’s what really flicks Mr. Spies’ Bic:

Earlier this month, the Florida legislature passed a bill that shifted the burden of proof in “stand your ground” pre-trial hearings to the prosecution. If Governor Rick Scott signs the legislation, state attorneys will have to prove to a judge, in a “clear and convincing” manner — a legal bar just below the trial standard of “beyond a reasonable doubt” — that a defendant was not acting in self-defense. It’s a massive hurdle the prosecution must overcome just to go to trial.

I don’t think the words “massive hurdle” mean what Mr. Spies wants them to mean. Here’s another example of his word-bending.

The new bill requires the prosecution to do significantly more in order to simply bring a case to trial. Under the legislation, defendants would be tasked with providing “prima facie” evidence— a term that ultimately means “some”— showing that a “stand your ground” claim could be valid. The requirement can be satisfied through testimony given by the defendant, who might explain his or her state of mind at the time of the incident. Witness testimony or video footage would also suffice as evidence.

Prima facie means “some” eh? dictionary.law.com:

prima facie: (pry-mah fay-shah) adj. Latin for “at first look,” or “on its face,” referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.

In other words, the defendant must still prove that he or she used lethal force legally. As Spies acknowledges in the very next sentence (emphasis added): “Once a judge agrees that a defendant has produced the required evidence, the burden shifts to, and remains with, the prosecution.”

Sounds good to me. Anyway, Florida’s anti-gun rights prosecutors (all of them?) are declaring war.

State attorneys say that, even if prosecutors meet the new burden, they may be forced to tip their hand to what kind of case they will make at trial, potentially giving defense lawyers an advantage.

“The hearings will give lots of opportunities to scope out the lay of the land,” Hess said. “I can assure you the state will challenge the law at some point. Probably the first ‘stand your ground’ case that comes up. It’s going to end up in the Supreme Court.”

Watch this space.

35 Responses to The Trace Sounds the Alarm on Florida’s Stand Your Ground Law

  1. The whole purpose of the law in the first place was to reign in the rouge (which is pretty much all of them?) prosecutors. But don’t worry, they and the anti-Liberty judges will find some other way to make an end-run around the controls put in place by the legislature. Just like the idiot judges that allow the civil lawsuits to go forward that the law expressly says shouldn’t go forward, for criminals and their families when they get shot by their victims while in the commission of a crime.
    Just because a bunch of clueless voters put you into an office with the power to pretty much do whatever you feel like doing doesn’t mean you have the moral fortitude to do what’s right.

    • “The whole purpose of the law in the first place was to reign in the rouge (which is pretty much all of them?) prosecutors.”

      In Florida, not all of them. G. Zimmerman had the bad luck to have Obama sic Democrat Angela Corey on him.

      And she tried her damnedest. And failed. And got her ass thrown out of office last year by a nearly 40 percent margin.

      Corey was also responsible for the Marissa Alexander ‘warning shot’ 20 year conviction.

      This lists a few other of her ‘victories’, no doubt that helped lead to her humiliating and deserving loss:

      https://en.wikipedia.org/wiki/Angela_Corey

      • EDIT – I was in error, apparently scum prosecutor Angela Corey (nothing ‘Angelic’ about her, unless you’re referring to the ‘Angel of Death’) ran as a Republican, not a Democrat…

        • Alan Dershowitz, no big fan of the 2A, said Angela Corey’s pursuit of Zimmerman was so abusive that she should be disbarred.

      • Note though that Zimmerman never invoked his right to a self-defense immunity hearing, but, instead, went to trial. The suggestion at the time was that the defense didn’t want to give away its trial strategy. Plus, should he have been sued anyway, in civil court, they still could go back and have the immunity hearing anyway.

    • I don’t think “rouge” means what you think it means, unless all of those prosecutors are female. Perhaps “rogue” would be a better word choice. Though it is funny as it stands.

  2. I just don’t get the opposition to this at all. What’s wrong with innocent until proven guilty? Of coarse prosecutors don’t like this they want easy open shut cases. They would rather guilty until proven innocent. That would make their job even easier. It seems the Trace would rather a guilty before proven innocent legal system. They are fascists.

    • Classically in American law, self defense is an affirmative defense, which means that while the prosecutor has the burden of establishing that the defendant killed someone else, it is the burden of the defendant to prove that he acted in lawful self defense. It has not, in most cases, been necessary for the prosecutor to show beyond a reasonable doubt that the defendant did NOT act in self defense. So the defendant is still innocent until proven guilty, only that the defendant has to prove that he has a valid defense to a killing that he committed. This law would change all of that.

      Let me give an example. the prosecutor must show that A shot B (and any aggravating circumstances such as lying in wait, committing another felony such as robbery, etc). The defendnat doesn’t have to do anything until the prosecutor at least shows A shot b. In self defense, however, A admits that he shot B, but has an excuse that the killing was justified. He has the burden of proving the justification. It is not typically the burden of the prosecutor to show that the killing was not justified.

      • The good sense of the proposed Florida statute, and that of similar provisions in Pennsylvania law is this: Under the old process you, as defender against an aggressive criminal….would be out somewhere between 50K and 500K in legal fees, just to earn the right to say “my use of lethal force was justified.” The criminal imposes that bankruptcy upon you, and the Angela Coreys of the world back the criminal.

        Ambiguous cases will still move on toward trial, but many claims of justification are indeed very clear. I believe judges will usually know which class of facts they are dealing with.

      • Maybe traditionally, but my understanding is that this is the case now only in one state, Ohio. In the other 49 states, the the defense has the burden of showing some evidence of self-defense, but then the burden shifts to the prosecution to disprove beyond a reasonable doubt. But note that the prosecution only has to disprove one required element of self-defense to overcome the defense.

  3. State attorneys say that, even if prosecutors meet the new burden, they may be forced to tip their hand to what kind of case they will make at trial, potentially giving defense lawyers an advantage.

    If a state attorney is more motivated by adding more conviction notches to his gun (!) than by seeing to it that justice is done within the confines of the law and legal system, then he is not fit for the job of prosecutor and should be fired, tarred and feathered, and ridden out of town on a rail.

  4. A law that places a BURDEN on the prosecution to bring evidence of something??!! Oh, heavens to Betsy! We can’t have that, now can we! Next thing you know, there’s a bunch of crazy talk about how even those GUN people should be considered “innocent” until they’re “proven” guilty!!

    /sarc

  5. Since when is “preponderance of the evidence” a low legal standard? Well, kind of forever. In terms of proof at trial, preponderance of the evidence (evidence that is more likely than not, or 50%+) is the lowest level of proof. “Clear and convincing” evidence is not specifically defined, but it is roughly synonymous with “compelling,” or “leaving little room for doubt.””Beyond a reasonable doubt” is the highest legal standard, and is applicable to the prosecutor in all criminal trials. These three legal standards must be distinguished for the legal burden needed to investigate (“reasonable suspicion”) or to search/seize/arrest (“probable cause”), both of which are significantly less than fifty percent probable, and are not relevant to determination of issues at trial.

    Throwing around all of these legal terms in the Trace article is intentionally misleading. A defendant does not have to prove that he acted in self defense “beyond a reasonable doubt,” only that it is more likely than not. Under Florida as it now stands, a defendant has the right to seek a pre-trial determination as to whether he was lawfully standing his ground. However, this pretrial proceeding does not apply to pure self defense claims, as was the case in the Trayvon Martin case. If it is probable that the defendant acted in lawful self defense, then it is impossible for him to have committed an unlawful killing beyond a reasonable doubt.
    And in any event, a prima facie case, as you report, requires the defendant to demonstrate that there is sufficient evidence on every element of his self defense claim before the burden shifts to the prosecutor. this is not “proof by a preponderance of the evidence,” but rather a deminimis burden of showing that there is probable cause to believe that his defense is valid. And if the prosecutor has to introduce all of his evidence disestablishing self-defense, what of it? He is required to disclose all of his evidence to the defendant prior to trial, and this proceeding is in fact a trial, just not a trial before a jury. So the complaint is just nonsense, since the prosecutor is legally prohibited from “hiding his hand.”.

  6. “Outside of ‘stand your ground,’ I don’t know of any other defense that gives defendants immunity from prosecution,” Glenn Hess, a Florida state attorney and the president of the Florida Prosecuting Attorneys Association, told The Trace.

    She is either lying or incompetent.

    * Sovereign Immunity

    There’s one and I am not even a bar certified attorney (thank God). I can think of a couple more if pressed on it.

  7. All of this is smokescreen. If the defendant can prove his innocence by a preponderance of evidence, or the prosecution cannot show his guilt by clear and convincing evidence, then it is logically impossible for the prosecution to prove his guilt beyond a reasonable doubt. The only difference is how far the persecution is allowed to go with a case they can’t really hope to prove.

    Taken together, that suggests the Trace’s agenda is to use the criminal justice process itself as punishment for self- defenders, knowing full well that legally, they have done nothing wrong. The Trace doesn’t want the innocent to escape punishment, not if they have the gall to own a gun.

    • It is not just the position of “The Trace” this is what the Democrats will always shoot for. Things like having a license to carry being an affirmative defense, so when you are pulled over and arrested for having a concealed pistol, they can take you to trial and force you to show you have the license (and pay for an attorney, and court costs, and time away from your job, etc.) They are always trying to promote the process as a punishment, and the left always wants the option to punish the innocent, especially if that person is not one of the “right” people.

      This attitude is why it is ridiculously difficult and expensive to get a license to carry in NYC, where they have developed process as punishment to high art or at least high corruption.

  8. Essentially what I take away from this is that the law would make it harder to frighten people on the wrong end of a weak prosecution into taking a deal.

    Maybe I’m wrong. Lawyers gonna lawyer and I hate that shit, which is why I didn’t go to law school after college even though that’s what 90% of the people in my major did. Hell, even people I wouldn’t trust to make a cup of black coffee became bar-certified lawyers so my respect for that profession is pretty darn low.

  9. I’m in Mr. Hess’ circuit. Like a lot of prosecutors, he thinks his job is to get convictions, rather than to do justice. Like almost all State / District Attorneys, he’s mostly the managing partner of a law firm, and gets his name and face out there for the big cases. Proving things beyond all reasonable doubt isn’t the strongest suit of his staff, but most jurors are so wrongheaded that they don’t have to do a good job.

    • “Proving things beyond all reasonable doubt isn’t the strongest suit of his staff, but most jurors are so wrongheaded that they don’t have to do a good job.”

      As I understand it, during jury selection, neither the prosecution or the defense is particularly motivated to get someone with a brain selected. Perhaps the defense may be, if they see it in their interest. But in general, they want the easiest persuaded to get their conviction, no?

  10. “…Mr. Spies was obliged to find an “expert” to back up his contention that there will be blood in streets.”

    Who wants to join me in a little project? The idea is to start looking through media reports and find all of the “blood in teh streets!” quotes, log them in a simple table with the date, author, and source. Then every year on the anniversary of the claim messages get sent out (somehow, facebook or something?) reminding everyone about the claim the person made and pointing out how much blood -isn’t- running down any street.

    The year anniversary is arbitrary. Monthly would just get ignored, Quarterly would be equally ignored. The six month mark would be OK, but annually makes it just far enough away from the quote that if, in fact, any blood were going to run in any street it would have by the year mark. And then doubly so at the two year mark and every year more.

    It’s just an idea, I can probably handle the database bit but the rest of the code to make this idea work will need more than my coding abilities can handle.

  11. Sorry folks its still innocent till proven guilty.
    This isnt England any more.
    Its about time this law was used as it was originally written. Since the state prosecutors decided to change the law on their own a few years back. Now its back to where it belongs.
    Just because I kill some stranger and they cant prove intent.
    Im guilty??? And have to prove Im innocent…..
    I dont think so.
    Thanks state reps for finally doing your jobs this year.

  12. “It’s a free bite of the apple for them.”

    Is this a biblical reference or code for something. More likely nonsense to sound significant?

  13. “Outside of ‘stand your ground,’ I don’t know of any other defense that gives defendants immunity from prosecution,” Glenn Hess, a Florida state attorney and the president of the Florida Prosecuting Attorneys Association, told The Trace.

    Glenn doesn’t get out much, does he? He’s never heard of Colorado’s castle doctrine statute (sometimes referred to as the “Make My Day law”) enacted in 1985? It provides for immunity from both criminal prosecution and civil liability.

    Colorado Revised Statutes 18-1-704.5. Use of deadly physical force against an intruder:

    (1) The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.

    (2) Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

    (3) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.

    (4) Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.

  14. It’s all about prosecutorial power. These prosecutors want to retain the authority to pick and choose who they prosecute for whatever reason. Particularly when it suits some political agenda, as a stepping stone to higher office. It has nothing to do with safety, law and order or the rule of law. They don’t like being cut out of the loop.

  15. I hadn’t realized in Florida the default position of an accused was guilty. Police , prosecutors and grand juries already have to weigh situations before arresting, indicting or charging a person.
    What are they really trying to assert Here? And didn t their expert hear about insanity claims and competence rules? Plenty of people are not charged under those scenarios.

  16. If criminal prosecutors in Florida are so utterly horrible that these laws are needed for defensive gun use cases, then why on Earth do we trust them with any other criminal prosecution? What makes anyone think they are any more trustworthy when it comes to drug cases, or drunk-driving cases, or shoplifting cases, or rape cases?

  17. Law makers just staying busy polishing already good laws with new language…nothing much really changed here.

  18. The Truth About Stand Your Ground (see what I did there?) is that it isn’t always used under the circumstances everybody here assumes: an innocent person minding his own business is attacked by an armed thug and shoots to defend his life. Those cases are mostly disposed of in favor of the shooter either at the grand jury or during the intake process at the prosecutor’s office. (Because everybody is thinking Zimmerman, let me point out that his case WAS disposed of by the local prosecutor in Sanford who determined the shooting was justified. Only after a nation-wide mob formed and threatened riots and the outrage media jumped on-board did Governor “Pink Slip” Rick Scott re-assign the case to the much-hated and extra-large Angela Cory out of Jacksonville. If left to the local Sanford prosecutor, Zimmerman would never have been charged and the world would have been right as rain…except for the riots of course.)

    But SYG is often used by the thug who shoots the innocent victim (you: the guy or gal reading this, your dad, brother, best friend) and needs a ready-made defense. It’s ironic and tragic, actually – the law that’s intended to protect the innocent is often used to protect the aggressor. I have friends who are detectives, prosecutors, judges, and defense lawyers. It strikes me that in private they all agree the law doesn’t really work as people assume it should.

    People here on this forum probably assume under a SYG scenario, they will be the shooter – the hero who saved innocent life by striking down the villain with a well-placed Gold Dot. If so, then SYG is in your favor…and good for you. Really, I mean that. Good for you! But if you are the unfortunate “shootee” rather than the shooter, let me suggest something you may not have contemplated. You can one hundred percent count on having SYG used against you, especially if you are carrying a gun when you get shot. The thug who robbed and shot you will scurry behind his shiny new public defender and claim YOU threatened HIM. And game on. The prosecutor, who is now on your side, has to prove the near impossible – that the shooter DIDN”T have the necessary mental state for self-defense. The thug who shot you doesn’t even have to take the stand and say he was in fear. All he has to do is sit back and see if the prosecutor can prove a negative about what’s going on inside another man’s mind to the satisfaction of one person (a judge…don’t laugh). I can’t imagine a greater sense of injustice than seeing the man who shot or killed you or your loved one set free without so much as a trial because the law intended to protect the innocent was usurped by the guilty. But that’s often the unspoken reality of SYG.

    Having said all this, I’m not opposed to SYG. In theory, it’s a brilliant law. I just point out it’s ugly underbelly and hope somebody will fix it.

  19. One of the things that drives me crazy is that this has little to do with “Stand your ground”, which essentially repeals the common law Retreat Doctrine (which prosecutors often use to show that the defendant could have retreated, even if they didn’t see the avenue of retreat at the time, thus negating the self-defense defense). What we are talking about is a criminal and civil immunity hearing, which requires/d a preponderance of evidence (POE) to acquire immunity, thus preventing trial. And that is both the reason for the law, and the reason that prosecutors dislike it – it keeps cases with valid self-defense claims from going to trial. Those complaining prosecutors have a much harder time using the lengthy and costly process of arrest and trial to penalize those who engage in legal self-defense with this sort of immunity statute on the books.

    Keep this in mind here – in 49 states (including Florida), burden at trial for the prosecution is to disprove self-defense beyond a reasonable doubt (BRD). If the defense can prove self-defense by a preponderance of the evidence in a pre-trial immunity hearing, the prosecution is not going to be able to disprove it beyond a reasonable doubt at trial. Think of it this way – if POE = 50%, BRD = 95%, PI = Probability of Innocence, and PG = Probability of Guilty (PI = 1-PD), then if PI > POE, then PG < POE, which means that PG < BRD, since POE< BRD. Middle school algebra, which those prosecutors don't seem to understand.

Leave a Reply

Your email address will not be published. Required fields are marked *