Florida’s Stand Your Ground Statute - the Pretrial Immunity Hearing

This article is not intended to be legal advice. If you need legal advice about a criminal accusation involving something that happened in the past, seek out the services of a criminal defense attorney. If you need advice about what might happen in the future, you probably need advice from someone other than a criminal defense attorney.

These areas of the law are not well settled under Florida law and speculation about what the pending litigation might mean for people facing prosecutions if the legislation is passed.

2017 SB 128

Senate Bill 128, proposed in 2017, might change who has the burden of proof during pretrial hearings to evaluate a defendant’s claim of immunity based on a justifiable use of force under Florida’s Stand Your Ground Statute. Florida law currently provides the defendant a right of immunity from criminal prosecution and civil action if the person is justified in using force.

In criminal prosecutions, the courts often determine on a pre-trial basis whether immunity should apply. The current statute is unclear about whether the prosecutor for the state or the defense should have the burden of proof during that pre-trial immunity hearing.

Because of that lack of clarity in the current legislation, the majority of the Florida Supreme Court in Bretherick v. State, 145 So.3d 821 (Fla. 2014) clarified the procedures the court should use. Under that decision, a defendant claiming immunity must prove by a preponderance of the evidence the entitlement to immunity at a pretrial hearing.

In the dissenting opinion, the court concluded that the Florida legislature intended for the state to have the burden of proof at pretrial immunity hearings.

The proposed legislation, 2017 Senate Bill 128, shifts the burden of proof to the prosecution in pretrial hearings to determine whether a defendant is immune from criminal prosecution based on a claim involving the justifiable use of force.

To receive protection, the defendant must file a motion that clearly states the reasons the defendant is immune and alleges the facts on which the immunity claim is based. The bill does not expressly require the defendant be sworn or admit the facts in the motion.

The bill also requires the state to prove its burden beyond a reasonable doubt. The burden of proof of beyond a reasonable doubt is the same burden of proof imposed on the state in the prosecution of criminal cases. Even if the defense loses on a pre-trial basis, the issue of self-defense can also be raised at trial as an affirmative defense.

Senate Bill 128 also provides that the state must prove its burden by the beyond a reasonable doubt standard instead of the lower standards used during other types of pre-trial hearings.


The History of Florida’s Stand Your Ground Statute


In 2005, the Florida Legislature enacted chapter 2005-27, commonly known as the “Stand Your Ground” law. The Stand Your Ground law expanded the common law Castle Doctrine. The new legislation also changed the defender’s common law duty to retreat.

The changes to Florida’s self-defense laws were incorporated into chapter 776, F.S., which applies to the justifiable use of force.

The History of the Castle Doctrine in Florida


The Castle Doctrine dates back to common law. Florida’s Castle Doctrine establishes that when faced with an intruder, a person had no duty to retreat from his or her home. Instead, under Florida’s version of the Castle Doctrine, the defender had the right to stay in the home and protect himself or herself with force. That force can include even deadly force.

Florida’s Stand Your Ground statute in 2015, expanded the Castle Doctrine. The Stand Your Ground provisions extended the “castle” to include more than just a residence. Under Florida’s Stand Your Ground statute, the protections also apply to a dwelling, residence, or occupied vehicle.

In fact, Florida Statute Section 776.013(5), defines a dwelling as a temporary or permanent building or conveyance of any kind, including an attached porch with or without a roof, mobile or immobile, including a tent, provided that it is designed for nighttime lodging.

The term “residence” is defended to include a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

The term “vehicle” means a conveyance of any kind, whether or not motorized provided that it is designed to transport people or property.

When Do Stand Your Ground Protections Apply

The Stand Your Ground statute in Florida also created a presumption that a person within these protected areas has a reasonable fear of imminent peril of death or great bodily harm under the following two conditions:
  • the offender must have entered or be in the process of unlawfully and forcibly entering the dwelling, residence, or occupied vehicle or be attempting to forcibly remove a person; and
  • the defender must know or had reason to believe that an unlawful and forcible entry had occurred or was occurring.
The Stand Your Ground law in Florida does not impose a duty to retreat on a person who acts in self-defense in his or her castle and other protected areas. Under Florida Statute Section 776.032(1), the defender will generally receive a grant of immunity from arrest, criminal prosecution, and civil action when those conditions are met.

When Do Stand Your Ground Protections Not Apply

Under Florida Statute Section 776.013, the presumption does not apply under the following circumstances:
  • if the person against whom defensive force is used or threatened has the right to be in or is a lawful resident of the location and against whom there is no injunction for protection;
  • the person sought to be removed is in the lawful custody or guardianship of the person against whom the defensive force is used or threatened;
  • the person who uses or threatens to use defensive force is committing a crime or using the location to further a criminal act;
  • the person against whom defensive force is used or threatened is a law enforcement officer entering the premises pursuant to an official duty and who identifies him or herself as a law enforcement officer.
In fact, under Florida Statute Section 776.013(4), a person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to intend to commit an unlawful act involving force or violence.
2005 Changes to Florida’s Self-Defense Laws
Under the 2005 changes to Florida’s self-defense law under Section 776.012(1), a person does not generally have a duty to retreat before using force outside of a person’s dwelling, residence, or occupied vehicle.

When acting in self-defense or in defense of others, a person does not have a duty to retreat and may use non-deadly force, if the person reasonably believes the force is necessary to defend himself or herself or another against an imminent use of unlawful force.

Instead, the person may use deadly force, if the person reasonably believes the force is necessary to prevent imminent death or great bodily harm to himself or herself. Under Section 776.012(2), the common law duty to retreat before using deadly force still applies to a person who is engaged in criminal activity or is not in a place where he or she has a right to be.

Standing Your Ground in Defense of Property

For claims involving acting in defense of property, a person does not have a duty to retreat and may use non-deadly force under the following circumstances:
  • if the person believes that the force is necessary to stop a trespasser’s entry on personal or real property other than a dwelling; and
  • the belief is reasonable under the circumstances.

Deadly force may be used if the person reasonably believes deadly force is needed to prevent a forcible felony. The term “forcible felony” is defined to include;
  • any felony which involves the use or threat of physical force or violence against any individual specifically including:
    • treason;
    • murder;
    • manslaughter;
    • sexual battery;
    • carjacking;
    • home-invasion robbery;
    • robbery;
    • burglary;
    • arson;
    • kidnapping; 
    • aggravated assault;
    • aggravated battery;
    • aggravated stalking;
    • aircraft piracy; or
    • unlawful throwing, placing, or discharging of a destructive device or bomb.

See Section 776.08, F.S.

Immunity from Civil Action under Stand Your Ground

Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from and any civil action. Under Section 776.032(3), a defendant to a civil action based on a use of force is entitled to reasonable attorney’s fees, court costs, lost income, and all expenses related to the defense of the action if the defendant prevails in a claim of immunity.

Immunity from Criminal Prosecution and the Peterson Hearing


Under Section 776.031, a person who uses force in self-defense as authorized under chapter 776, F.S., is justified for those actions and is immune from criminal prosecution. Under Section 776.032(1), the concept of immunity is supposed to apply to all phases of the criminal prosecution including the arrest, being detained, being charged, or facing a criminal prosecution.

The Stand Your Ground statute is silent on how to procedurally determine the right to immunity before trial. As a result, the procedures for determining when immunity applies have largely been determined by the courts.

The courts have recognized that the procedures for claiming immunity are different than the procedures for asserting an affirmative defense. In many cases, the defense will file a pretrial, adversarial motion and the court will set a hearing on the motion to determine immunity. Peterson v. State, 983 So. 2d 27 (Fla. 1st DCA 2008).

The standard used by some trial courts during the immunity hearing was a showing by a preponderance of the evidence. Even if the court denies the immunity claim, the defense can still introduce the claim as an affirmative defense at trial. Id.

In Bretherick v. State, 170 So. 3d 766, 722 (Fla. 2015), the Florida Supreme Court attempted to clarify the issues by finding that the defense bears the burden of proof in immunity hearings and that the required showing is beyond a reasonable doubt. The dissenting opinion argued:
By imposing the burden of proof on the defendant at the pretrial evidentiary hearing, the majority substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law. There is no reason to believe that the Legislature intended for a defendant to be denied immunity and subjected to trial when that defendant would be entitled to acquittal at trial on the basis of a Stand Your ground defense. But the majority’s decision here guarantees that certain defendants who would be entitled to acquittal at trial will nonetheless be deprived of immunity from trial.
Id. at 780.

Additional Resources

Governor’s Scott’s Task Force on Citizen Safety and Protection - The task force was convened by Florida Governor Rick Scott for the purpose of reviewing Florida’s Stand Your Ground law. A detailed report was issued by the task force on February 21, 2013, which was before the Florida’s Supreme Court Decision in Bretherick. The report found that all persons who are conducting themselves in a lawful manner have the right to defend themselves and to stand their ground when attacked.

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