copyright 2017 by jon gutmacher **
One of the major issues in Florida self defense law has been the burden of proof in an immunity hearing. In other words – if you are charged with a crime for using self defense – you have the opportunity to challenge the prosecution under the immunity laws in Chapter 776 of the Florida statutes, and if successful, have the charges dismissed. Since all other types of immunity hearings require the government to prove you are “not entitled to immunity” by a preponderance of the evidence (ie: more than 50%) – why is self defense immunity the exception – as in such hearings the defendant is the one who has the “burden of proof” to establish entitlement to immunity by a preponderance of the evidence? Something very difficult to do without your attorney first spending months gathering evidence, taking depositions, and doing all sorts of other things while you continue to sweat bullets being on bond, having bail restrictions on travel, having to attend multiple court hearings, missing work, and otherwise having the stigma of facing serious criminal charges. Thus, for the past few years various bills have been introduced in the Legislature to change that – but so far – no good.
Anyway – we now have a new bill filed to correct the situation, Senate bill 128 – but is it any good, and what are its chances of passing???
Well, I’ve attached the bill underneath this explanation for you to take a look at, and my guess is that it will not pass – at least not in its present format. Plus, it has the usual drafting problems.
The first problem (section 4 is what is new, and what this is about) is that it requires the State to prove you’re not entitled to immunity “beyond a reasonable doubt”. That is the law for a jury trial – but in a pretrial motion – that would be a complete, historic novelty – plus, totally unfair for the prosecution. In any type of constitutional or immunity type hearing the burden, no matter who has it, has always been “by a preponderance of the evidence”. Obviously, that is not going to be changed because of this bill. So, to get it passed, there would have to be a major amendment of the language that sets the standard as putting the burden on the government by a “preponderance of the evidence”, at a "pretrial" immunity hearing, and leaving “beyond a reasonable doubt” as the standard for trial. This is a drafting issue that should have been resolved BEFORE the bill was filed – not after.
Likewise, recent Florida case law has pointed out that the immunity question is just as important to civil cases. For instance, if you’re sued by someone injured by your use of self defense. Shouldn’t the same standard apply to a civil case? Shouldn’t civil cases also be included? In fact, since there is conflict between the appellate courts of this State on a very important issue – whether a finding of immunity in a criminal case or subsequent civil case is thereafter binding on any and all other civil cases that might arise (think about several persons injured in a self defense incident, and maybe even their family members – each one of them sues you civilly, one at a time. That would take years, and probably a few million to defend them all, besides all the stress and personal time it would take. But, if you have been found immune in one – shouldn’t that immunity apply to all – otherwise what really is any civil immunity worth?
So, the answer (to me) is that this bill is unrealistic in the standard of proof it seeks to impose on the prosecution, pretrial, and that needs to be amended for it to have any chance of passing. Likewise, and maybe for a future bill – somebody needs to address the civil issue problem, as I understand that combining them might kill the chances for both.
Anyway – here’s the main part of the statute in section (1) and the new bill wording in section (4):
Florida Senate - 2017 SB 128
By Senator Bradley
Page 1 of 2
CODING: Words stricken are deletions; words underlined are additions.
1 A bill to be entitled
2 An act relating to self-defense immunity; amending s.
3 776.032, F.S.; requiring that the burden of proof in a
4 criminal prosecution be on the party seeking to
5 overcome the immunity claim under certain
6 circumstances; providing an effective date.
8 Be It Enacted by the Legislature of the State of Florida:
10 Section 1. Subsection (1) of section 776.032, Florida
11 Statutes, is republished, and subsection (4) is added to that
12 section, to read:
13 776.032 Immunity from criminal prosecution and civil action
14 for justifiable use or threatened use of force.—
15 (1) A person who uses or threatens to use force as
16 permitted in s. 776.012, s. 776.013, or s. 776.031 is justified
17 in such conduct and is immune from criminal prosecution and
18 civil action for the use or threatened use of such force by the
19 person, personal representative, or heirs of the person against
20 whom the force was used or threatened, unless the person against
21 whom force was used or threatened is a law enforcement officer,
22 as defined in s. 943.10(14), who was acting in the performance
23 of his or her official duties and the officer identified himself
24 or herself in accordance with any applicable law or the person
25 using or threatening to use force knew or reasonably should have
26 known that the person was a law enforcement officer. As used in
27 this subsection, the term “criminal prosecution” includes
28 arresting, detaining in custody, and charging or prosecuting the
30 (4) In a criminal prosecution, once a prima facie claim of
31 self-defense immunity from criminal prosecution has been raised
32 by the defendant at a pretrial immunity hearing, the burden of
Florida Senate - 2017 SB 128
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