Prosecutorial Immunity: 2005-2016
Upon passage in 2005, ‘Stand Your Ground’ offered a remedy of complete immunity for defendants whose use of force met the statutory criteria. As stated in §
776.032, a person who used force as permitted by the statute was “immune from criminal prosecution and civil action” for the use of such force (with certain limited exceptions).
The term “immune” meant that, if the accused could factually establish pre-trial that his or her use of deadly force occurred under the circumstances outlined in §
776.012 or §
776.013, the State of Florida would be legally and procedurally barred from further prosecution in the matter.
The procedures for asserting prosecutorial immunity under the initial “Stand Your Ground” provisions were outlined in
Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. Peterson definitively established that Section 776.032 was created by the Florida Legislature to create a “true immunity,” and not merely an affirmative defense.
Peterson held that a defendant may raise the question of statutory immunity at a pre-trial hearing and, when such a claim was raised, the burden of proof would fall on the defendant to show by a preponderance of the evidence that immunity could attach (i.e. that the statutory prerequisites have been met). In
Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the decision in Petersen, and the pretrial hearing burden remained with the defendant.
Procedurally, the issue of immunity was raised pre-trial through the filing of a
Motion for Declaration of Immunity and/or Dismissal. These motions could be filed individually or consolidated into a single filing. Once filed, the trial court would set an evidentiary hearing, whereupon the defendant would attempt to prove his or her eligibility for immunity by a preponderance of the evidence. If the court granted the motion, a dismissal would ensue. If denied, the prosecution resumed and the case resolved by way of plea or trial.
From a procedural standpoint, the Petersen/Dennis decisions were problematic because they essentially reversed the burden of proof traditionally at play in a criminal case. Unlike a trial, where the burden of proving a case rests with the State, ‘Stand Your Ground’ was interpreted to place the burden on the defendant.
Prosecutorial Immunity: Current Law
In 2017, the Florida legislature amended the ‘Stand Your Ground’ statute to significantly alter the burdens and standards of proof applicable in immunity proceedings.
Instead of placing the entire burden on the defendant, the law now requires a defendant to establish only a prima facie case of self-defense immunity. At that point, the burden shifts to the prosecution to demonstrate by clear and convincing evidence that the defendant does not qualify for immunity.
§
776.032(4) provides as follows:
In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
Not only does this provision shift the burden of proof to the prosecution, it also raises the standard of proof from “preponderance of the evidence” to “clear and convincing evidence.”
