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.