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A Nevada murder trial is renewing the debate over Americas Stand Your Ground self-defense laws.

The story begins in February, when Cody Devine, 34, and Janai Wilson, 29, apparently went, without permission, to a vacant rental property near Reno, Nevada, owned by Wayne Burgarello. According to prosecutors, Burgarello, 73, found Devine and Wilson resting on a floor. He shot them. Burgarello maintains he was acting in self-defense under Nevadas Stand Your Ground law.

The case is an important reminder about the debate over the controversial laws. Thirty-three states have adopted some form of Stand Your Ground law, according to the American Bar Association. Ten states have introduced bills to repeal or scale back their Stand Your Ground laws this year, and 13 states have pending legislation to strengthen or enact such laws.

Florida was the first state to enact such legislation, in 2005, under then Gov. Jeb Bush, who is currently a Republican presidential candidate. Florida essentially immunizes a person from criminal prosecution or civil action, provided he proves the use of force was necessary to prevent death or serious harm.

(Map: Courtesy Al Jazeera.com)

For years, much of the United States has followed the castle doctrine, which basically holds that a persons home is her castle, which gives that person the right to defend her home through the use of deadly forceand without legal consequences. The National Rifle Association and the American Legislative Exchange Councila group of conservative lawmakersbegan a push for legislation that ultimately would upend the castle doctrine.

Stand Your Ground laws provide more latitude to invoke self-defense as grounds for killing someone posing an imminent threat. Typically, such laws permit the use of deadly force outside the home against a perpetrator, regardless of whether the perpetrator is armed.

Its worth remembering that much of the country was introduced to Stand Your Ground laws after the 2012 fatal shooting of Trayvon Martin, an unarmed black youth.

Stand Your Ground advocatesparticularly the gun industryargue that the laws are necessary protection from violent criminals. But criticsgun control groups, civil rights activists, and even some law enforcement officialsmaintain that they fuel a trigger-happy culture. The renewed debate over Stand Your Ground comes at a remarkable point in our thinking about guns: For the first time in nearly two decades, a majority of Americans say its important to protect citizens right to own guns.

At a time when the killing of unarmed African Americans by police has given birth to the Black Lives Matter movement, Stand Your Ground critics point to racial fear and bias in the laws implementation, with a particular appeal to white jurors.

In states with Stand Your Ground laws, justifiable homicides have increased 85 percent, and the shooting of a black person by a white person is deemed justifiable 17 percent of the time. Meanwhile, the shooting of whites by blacks is found justifiable in only 1 percent of cases.

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Last week, music legend Stevie Wonder responded to the acquittal of George Zimmerman by vowing to boycott the state of Florida until its Stand Your Ground law is repealed.

Im just one person, Im a human being, Wonder told an audience in Qubec City. But for the gift that God has given me, and for whatever I mean, I decided today that until the Stand Your Ground law is abolished in Florida, I will never perform there again.

Ted Nugent aself-professed expert on the black problem has his own theory behind why Wonder would take such a stand.

When you live in a fog of denial, usually inspired by substance abuse you know with all the lies about dope being a victimless crime, I think youre listening to the victims of this dopey crime, because their brains are fried, Nugent said. Theyre either fried on substance abuse, and all of them know who Im talking about.

Nugent added that Wonder who, as nearly all adult humans know, has impaired vision is addled by being surrounded by people who help him.

But theres also a fog of denial with yes men surrounding you and you have people picking up after you and you have people serving you.

Nugent, like many conservatives, is obsessed with the gun violence in Chicago and blasted liberals for ignoring the slaughter there. These arguments point out that the Windy City has some of the strictest gun laws in America and ignore that most of the guns come from all over the nation to the city, often from Mississippi,where gun laws are much more lax.

Nugent actually argues that the lack of a Stand Your Ground law in Chicago is why so many people are killed.

Democrats have fought for expanded background checks to reduce gun violence with the support of some Republicans and independents, including Nugents brother.

The Motor City Madman is proud of the fact that hes never taken drugs to cloud his mind. So one has to wonder what he blames his sexual indiscretions, including one involving an underage Courtney Love, on?

(h/t Raw Story)

Photo:Ron Gallegos via Flickr.com

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After the tragic events that lead to the death of Trayvon Martin last month in Sanford, Fla., the Internet is abuzz with questions on Stand Your Ground laws and Castle Laws.

Indeed, it was the Stand Your Ground Law in Florida that appears to have allowed the alleged killer, George Zimmerman, to walk free after shooting the seventeen-year old. You see, it seems Zimmerman thought that a black man with a hoodie was reasonable cause for suspicion. So, he called 911 and reported the guy.

As far as reports now indicate, he thenfollowed and confronted Martin, eventually shooting him.

Zimmerman claimed that he acted in self-defense. After all, he was in fear of his life. But Trayvon Martin was armed with nothing more than a bag of Skittles and a bottle of ice tea.

Stanford police have not yet arrested Zimmerman, saying that under Florida's Stand Your Ground law, he was within his rights to confront a stranger on the streets and use deadly force, if he believed himself or others to be in imminent danger.

In Florida's version of the law, you can shoot anyone, anywhere, if you fear for your life. Well, anywhere you have the legal right to be.

Now, what if this scenario played out in Los Angeles? Would a Los Angeles criminal lawyer be able to assert a California Stand Your Ground law to protect a Zimmerman-wannabe?

California has a slightly different take on this law. Under California Penal Code sec. 198.5 , if someone enters your home, you can presume that your life is in imminent danger and you can use deadly force against the intruder. In your own home, you would have no duty to retreat in California. Also in this state, you have no duty to retreat if you're stopping someone from committing a felony.

But as for attacking a Skittles-wielding 17-year-old on the street, a Los Angeles defendant would not have much success in invoking the Stand Your Ground laws in California, as California adopts the more tailored version of that law, known as the Castle doctrine. As described above, those claiming self defense have more leeway in their homes (your home is your castle) than in a public area.

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How Do Stand Your Ground Laws Change Existing Law?

ALECs model Stand Your Ground law and the Florida law on which it was based contain seven key components that distinguish them from traditional self-defense doctrine. Some states have adopted all seven elements, while others have adopted varying combinations of them. For the purposes of this report, a state is only considered a Stand Your Ground state if its statute allows a person to use deadly force e.g., shoot someone anywhere the shooter has a right to be, even when there is a clear and safe opportunity to avoid a dangerous situation.

Allowing People to Stand Their Ground in Public

Stand Your Ground states give shooters the right to use deadly force even when there is a safe opportunity to retreat, as long as they are in any place they have a right to be. An additional three states which are not classified as Stand Your Ground states for the purposes of this report expand the Castle Doctrine only to the shooters vehicle,Missouri: 2007 Mo. SB 62; Ohio: 2007 Ohio SB 184; Wisconsin: 2011 Wis. ALS 94. allowing a driver to shoot someone when threatened in his or her car instead of simply driving away.

Permitting Deadly Force in Defense of Property

At least nine Stand Your Ground statesAlabama: Code of Ala. 13A-3-23(a)(3); Arizona: A.R.S. 13-411(A); Florida: Fla. Stat 776.031, 776.08; Georgia: O.C.G.A. 16-3-23(3); Kansas: K.S.A. 21-3212, 21-3213; Kentucky: KRS 503.080(2)(b); Nevada: Nev. Rev. Stat. Ann. 200.120(1); Oklahoma: 21 Okl. St. 643(3); Texas: Tex. Penal Code 9.42. have statutes that allow a shooter to kill a person to defend property, even if no one is in physical danger and, in at least one state, even if the perpetrator is fleeing.Texas: Tex. Penal Code 9.42(2)(B)

The statutes that allow deadly force to be used to defend property fall into two broad categories. Four states allow deadly force to be used to protect personal property, such as money, cell phones, and cameras.Kansas: K.S.A. 21-3212, 21-3213; Nevada: Nev. Rev. Stat. Ann. 200.120(1); Oklahoma: 21 Okl. St. 643(3); Texas: Tex. Penal Code 9.42 This can result in the legally justified killing of people even when the compromised property is of very little value.For example, in June 2012, Benito Pantoja stole $20.29 from the tip jar of a taco truck in Houston, Texas. The owner of the business chased Pantoja and shot him in the back, killing him. Pantojas death was ruled a justifiable homicide. See Yang Wang and Dane Schiller, Texas Justifiable Homicides Rise with Castle Doctrine, Houston Chronicle, July 2, 2012, http://www.chron.com/news/houston-texas/article/Killings-deemed-justified-are-on-therise-in-Texas-3676412.php#page-1. Six states permit the use of deadly force to prevent the burglary of an unoccupied building, even if the shooter does not own or control the building, and even if the shooter knows that no one is inside or otherwise in danger.Alabama: Code of Ala. 13A-3-23(a)(3); Arizona: A.R.S. 13-411(A); Florida: Fla. Stat 776.031, 776.08; Georgia: O.C.G.A. 16-3-23(3); Kentucky: KRS 503.080(2)(b)

Though proponents of these laws claim that they deter criminals, the evidence indicates otherwise. A recent study by Texas A&M University economists found that rates of burglary and robbery are unaffected by the passage of Stand Your Ground laws.C. Cheng and M. Hoekstra, Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine, Texas A&M Department of Economics, 29 May 2012, available at http://econweb.tamu.edu/mhoekstra/castle_doctrine.pdf. Meanwhile, as this report explains, states that have passed these laws have experienced increased homicide rates.

Creating Presumptions that Shootings are Lawful

Beyond expanding the Castle Doctrine to apply outside the home, the Stand Your Ground laws in 14 states also alter traditional doctrine by creating a legal presumption that shooters in certain locations, such as their home or vehicle, are justified in their use of deadly force.Alabama: Code of Ala. 13A-3-23(a)(4); Arizona: A.R.S. 13-411(C); Florida: Fla. Stat. 776.013; Kansas: K.S.A. 21-3212a; Kentucky: KRS 503.055; Louisiana: La. Rev. Stat. Ann. 14:19(B); Michigan: MCLS 780.951; Mississippi: Miss. Code. Ann. 97-3-15(3); North Carolina: N.C. Gen. Stat. 14-51.2(b); Oklahoma: 21 Okla. Stat. 1289.25(B); Pennsylvania: 18 Pa.C.S.A. 505(b)(2.1); South Carolina: S.C. Code Ann. 16-11-440; Tennessee: Tenn. Code Ann. 39-11-611(c); Texas: Tex. Penal Code 9.31. In two states Arizona and Texas these presumptions apply everywhere.

Under traditional American legal principles, a defendant is presumed innocent and the governments prosecutors are required to convince a jury beyond a reasonable doubt that the defendant committed the crime in question.

Layered on top of this exacting beyond a reasonable doubt standard, Stand Your Ground presumptions are often effectively irrefutable. If the victim is dead, and there are no other witnesses to contradict the shooters claims, the presumption forces authorities to take the shooter at his or her word, regardless of how unlikely and unsubstantiated the shooters version of events may be. Additional evidence may be impossible to obtain if the victim was killed and there were no eyewitnesses to or video recordings of the shooting.

Criminal Immunity, Part 1: Preventing the Arrest of Shooters

Typically, police can arrest a person if they have probable cause essentially, a reasonable belief that he or she has committed a crime, such as shooting another person.See, e.g., F. Andrew Hessick III & Reshma Saujani, Plea Bargaining and Convicting the Innocent: the Role of the Prosecutor, the Defense Counsel, and the Judge, 16 BYU J. Pub. L. 189, 200 (2002); Elise Bjorkan Clare et. al., Twenty-Fifth Annual Review of Criminal Procedure: I. Investigation and Police Practices. 84 Geo. L.J. 717, 759-760 (1996). However, Stand Your Ground laws in six states forbid police from arresting a shooter who claims self-defense unless they find evidence to disprove the shooters claim.Alabama: Code of Ala. 13A-3-23(d); Florida: Fla. Stat. 776.032(2); Kansas: K.S.A. 21-5231(a); Kentucky: KRS 503.085(1); Oklahoma: 21 Okl. St. 1289.25(G); South Carolina: S.C. Code Ann. 16-11-450(B). This heightened standard for making an arrest and, in three states, for even detaining a suspectFlorida: Fla. Stat. 776.032(2); Kansas: K.S.A. 21-5231(a); Kentucky: KRS 503.085(1). puts a significant roadblock in front of law enforcement because police often start accumulating evidence by interviewing the shooter, and a shooter who is presumed to have acted lawfully has little incentive to cooperate with an investigation. If the victim is dead and there are no other witnesses, it may be impossible for the police to proceed with the investigation.

Stand Your Ground laws provide law enforcement with little guidance for how to evaluate the validity of a suspects self-defense claim,Reagan v. Mallory, 429 Fed. Appx. 918 (11th Cir. 2011) (Under Florida law, law enforcement officers have a duty to assess the validity of this defense, but they are provided minimal, if any, guidance on how to make this assessment.). and instead expose officers to the prospect of a wrongful arrest lawsuit for improperly detaining a suspect who has claimed self-defense.See, e.g., Reagan v. Mallory, 429 Fed. Appx. 918 (11th Cir. 2011). Additionally, as a recent Tampa Bay Times study demonstrated, courts have difficulty determining when arrests and prosecutions are proper, leading to confusion and inconsistent decisions.Floridas Stand Your Ground Law, Tampa Bay Times at http://www.tampabay.com/stand-your-ground-law/. This uncertainty creates a chilling effect, making police less likely to arrest, and prosecutors less likely to prosecute, shooters who claim self-defense.

Criminal Immunity, Part 2: Immunity Hearings

Stand Your Ground laws in eight states shield a shooter from criminal prosecution even after an arrest is made.Alabama: Code of Ala. 13A-3-23(e); Florida: Fla. Stat. 776.032(1); Georgia: O.C.G.A. 16-3-24.2, Kansas: K.S.A. 21-5231(a); Kentucky: KRS 503.085(1); North Carolina: N.C. Gen. Stat. 14-51.3(b); Oklahoma: 21 Okl. St. 1289.25(F); South Carolina: S.C. Code Ann. 16-11-450(A). State courts have interpreted these criminal immunity provisions to entitle a shooter to a pretrial immunity hearing a procedure during which each party presents evidence to a judge who determines if the shooter acted in self-defense. If the judge finds it more likely than not that the defendant acted in self-defense, the case is dismissed. Otherwise, the case proceeds to trial.See, e.g. Dennis v. State, 51 So. 3d 456 (Fla. 2010); Bunn v. State, 667 S.E.2d 605 (Ga. 2008); Rodgers v. Commonwealth, 285 S.W.3d 740 (Ky. 2009); State v. Duncan, 392 S.C. 404 (S.C. 2011). Such immunity hearings alter traditional criminal procedure by requiring a judge to make factual determinations usually left to a panel of jurors.

The distinction between judge and jury can be significant. The jury with its breadth and diversity of opinions, experiences, and backgrounds generally determines what evidence to believe and disbelieve. Self-defense cases, in particular, often turn on only a few crucial facts.Jean K. Gilles Phillips & Elizabeth Cateforis, Self-Defense: Whats a Jury Got to Do with It?, 57 Kan. L. Rev. 1143 , 1168-1174 (2009). In most states, a jury must decide those facts. The immunity provisions found in Stand Your Ground laws effectively overturn this rule in self-defense cases by requiring factual disputes to be decided by a judge instead of by the people a jury of ones peers.In doing so, Stand Your Ground laws grant a unique status to claims of self-defense. There are many defenses e.g., necessity, entrapment, insanity that a defendant can raise at trial that would relieve him or her of criminal responsibility for actions that would otherwise constitute a crime. Until the advent of Stand Your Ground laws, self defense ranked among them, but these provisions single out self-defense and create a new type of procedural mechanism to determine whether self-defense applies.

The purpose of granting criminal immunity, according to Representative Dennis Baxley, who sponsored Floridas Stand Your Ground law in the Florida House of Representatives, was to protect law-abiding citizens from uncertainty while they wait for the government to decide whether to prosecute them for shootings they claimed were in self-defense.See, e.g., Ann ONeill, NRAs Marion Hammer stands her ground, CNN, April 15, 2012, http://www.cnn.com/2012/04/15/us/marion-hammer-profile/index.html. In practice, however, immunity provisions do not accomplish this goal. Shooters continue to wait sometimes years for a decision.For example, in one Florida case, Dennis Sosa Palma, who had fatally stabbed his brother during a 2010 brawl, waited more than two years for a favorable determination on immunity. David Ovalle, Miami-Dade judge tosses murder charge based on self-defense, The Miami Herald, August 17, 2012 at http://www.miamiherald.com/2012/08/17/2956670/miami-dade-judge-tosses-murder.html. In fact, if the shooter is prosecuted, the case may take even longer to resolve than under the traditional regime: If the judge decides the shooter is not entitled to criminal immunity, the case then proceeds to a jury trial, effectively lengthening the process and giving the shooter two trials instead of one. The difference is often not in the time spent awaiting a decision, but in whether the case is decided by a judge or a jury.

Civil Immunity: Prohibiting Civil Lawsuits

Our civil justice system provides avenues for injured parties to seek redress for harms they have suffered. Shooting victims and their families traditionally have the ability to file a civil lawsuit for monetary damages to compensate for injuries like lost wages, medical costs, and pain and suffering. To prevail, the injured party must generally show by a preponderance of the evidence (i.e., that it is more likely than not) that the defendants actions violated the law and caused harm. This standard of proof is much easier to meet than the exacting beyond a reasonable doubt standard in criminal cases and provides some measure of justice where the proof of guilt was substantial, but not strong enough to satisfy the criminal standard. Of the 22 Stand Your Ground states examined in this report, 19 effectively bar civil lawsuits against shooters protected by Stand Your Ground laws.

These so-called civil immunity laws take different forms. Eleven states have statutes that create immunity from all civil suits arising from the lawful use of force.Alabama: Code of Ala. 13A-3-23(d); Arizona: A.R.S. 13-413; Florida: Fla. Stat. 776.032; Kansas: K.S.A. 21-3219; Kentucky: KRS 503.085; Louisiana: La. Rev. Stat. Ann. 9:2800.19; Mississippi: Miss. Code. Ann. 97-3-15(5); North Carolina: N.C. Gen. Stat. 14-51.2(b), 14-51.3(b); Oklahoma: 21 Okla. Stat. 1289.25(F); South Carolina: S.C. Code Ann. 16-11-450(A); Texas: V.T.C.A. 83.001. Often referred to as blanket immunity, these provisions prevent all suits against the shooter, including suits brought by innocent bystanders who may have been injured. Eight states have more limited civil immunity provisions that shield the shooter only from suits brought by the intended victim and his or her survivors, implicitly allowing innocent bystanders to sue.Alaska: Alaska Stat. 09.65.330; Georgia: O.C.G.A. 51-11-9; Michigan: Mich. Comp. Laws 600.2922b; Montana: Mont. Code. Ann. 27-1-722; New Hampshire: N.H. Rev. Stat. Ann. 627:1-a; Pennsylvania: 42 Pa.C.S.A. 8340.2(a); Tennessee: Tenn. Code Ann. 39-11-622; West Virginia: W. Va. Code 55-7-22(d).

In addition, 12 states award attorneys fees and litigation costs to a shooter who prevails in a civil suit, creating a strong disincentive for a shooting victim to pursue justice in the civil system.Alaska: Alaska Stat. 09.65.330(b); Florida: Fla. Stat. 776.032 (3); Kentucky: KRS 503.085; Louisiana: La. R.S. 9:2800.19; Michigan: Mich. Comp. Laws 600.2922c; Mississippi: Miss. Code. Ann. 97-3-15(5); Montana: Mont. Code. Ann. 27-1-722(4); New Hampshire: N.H. Rev. Stat. Ann. 627:1-a; Oklahoma: 21 Okla. Stat. 1289.25(H); Pennsylvania: 42 Pa.C.S.A. 8340.2(b); South Carolina: S.C. Code Ann. 16-11-450(C); Tennessee: Tenn. Code Ann. 39-11-622(b). These cost-shifting provisions only work in one direction: They award attorneys fees if the shooter prevails, but not if the injured party prevails.

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DEADLY FORCE, SELF-DEFENSE, AND PROSECUTORIAL IMMUNITY

The following article discusses the history and present scope of Floridas Stand Your Ground law in cases involving the use of deadly force. It further addresses the procedural steps for obtaining prosecutorial immunity.For additional information, view theFlorida Stand Your Ground Statuteor an exampleMotion for Declaration of Immunity and Dismissal.

In a highly publicized move, the Florida Legislature enacted in 2005 what has been popularly known as the Stand Your Ground law. This law, as codified in Sections 776.012, and 776.013, Florida Statutes, provides that a person is justified in the use of deadly force and has no duty to retreat if either:

(1) the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself, or another or to prevent the imminent commission of a forcible felony; or (2) the person acts under and according to the circumstances set forth in Section 776.013 (pertaining to the use of force in the context of a home or vehicle invasion).

Floridas Stand Your Ground law does not create a new type of affirmative defense. The principle that a person may use deadly force in self-defense if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm has been the law in Florida for well over a century. See Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892). Rather than creating a new defense, Stand Your Ground broadens the scope of a self-defense claim by establishing a general no duty to retreat rule.

Prior to the enactment of the statute, a person could not use deadly force in self-defense without first using every reasonable means within his or her power to avoid the danger, including retreat. See Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). As stated in earlier appellate court decisions, a combatant had to retreat to the wall before using deadly force. See Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997). This former duty to retreat derived from the common law, rather than from statute.

If abolishing the common law duty of retreat for cases involving the use of deadly force was not enough, Stand Your Ground goes one step further in cases involving home or vehicle invasions. Section 776.013, Florida Statutes, provides that, when an intruder unlawfully enters, attempts to enter, or refuses to leave a dwelling, residence, or vehicle owned or lawfully occupied by another person, the owner or occupant is presumed to have held a reasonable fear of death or great bodily harm so as to justify the use of deadly force. The intruder is furthermore presumed to be doing so with the intent to commit an unlawful act involving force or violence.

The presumptions employed in the context of a home or vehicle invasion mark yet another statutory departure from the common law. Although, prior to 2005, Florida case decisions had long recognized the Castle Doctrine (which provides that where one is not the aggressor and is violently assaulted in ones home, there is no obligation to retreat), the doctrine nonetheless required the owner or occupant of the home to reasonably believe that force was necessary to prevent death or serious bodily harm. See Danford v. State, 53 Fla. 4, 13 (Fla. 1907). Under the current statute, the reasonableness of the occupants belief is presumed so long as he or she acts within a dwelling, residence, or vehicle, as defined in Section 776.013, Florida Statutes.

Contrary to recent assertions made in the New York Times by UCLA Law Professor Adam Winkler, there are multiple statutory provisions limiting the scope of Floridas Stand Your Ground law.

Under Section 776.013(3), the no duty of retreat rule will not apply to a person who is engaged in an unlawful activity or is in a place where he or she has no right to be. Other provisions preclude a defendant from raising a self-defense claim altogether. Under Section 776.041, the justifications for the use of force do not apply if the accused is attempting to commit, committing, or escaping after the commission of a forcible felony.

The justifications for use of force will also not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes.

Floridas Stand Your Ground law provides potential immunity from prosecution for an accused who can establish (by appropriate legal procedures) that his or her actions fell within the purview of the statute. To understand how Stand Your Ground immunity works, one has to understand the nature of a self-defense claim and how such a claim is typically raised in a criminal proceeding.

Self-defense is a type of affirmative defense that operates to avoid (or cancel) the legal effect of a violent act (such as a homicide), which would ordinarily subject the accused to criminal liability. In a self-defense claim, the defendant admits the truth of the essential act (i.e. that he or she committed a homicide or other violence against a person), but justifies the act by claiming that it was necessary to save him- or herself from death, great bodily harm, or other unlawful uses of force. In the context of a homicide, a defendant claiming self-defense essentially says: Yes, I killed. But I did not murder (commit an unlawful killing) because, under the facts and circumstances, my acts were legally justifiable. Under common law and in most criminal cases today, the question of justifiable self-defense is a factual question for the jury to resolve at trial. The jury is the fact-finder. They decide whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.

Here again, Stand Your Ground makes another significant change from the common law. Under Section 776.032, Florida Statutes, a person who uses force as permitted in Section 776.012 or Section 776.013 is immune from criminal prosecution and civil action for the use of such force (with certain limited exceptions). Note the word immune. This means that, if the accused can factually establish pre-trial that his or her use of deadly force occurred under the circumstances outlined in Section 776.012 or Section 776.013, the State of Florida is legally and procedurally barred from further prosecution in the matter. In the event that a civil action is brought against the person who used qualifying deadly force, a court must award reasonable attorneys fees, court costs, compensation for loss of income, and all expenses incurred in the defense of the case.

The procedures for asserting prosecutorial immunity under the Stand Your Ground law are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. The Petersen decision definitively established that Section 776.032 was created by the Florida Legislature to establish a true immunity and not merely an affirmative defense. The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes. Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.

NOTE: In Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the First District decision in Petersen, resolving a previous conflict that existed between the First and Fourth District Courts of Appeal. Petersen is now binding law on all Florida courts.

Thus, under the procedures outlined in Petersen, prosecutorial immunity does not attach under Floridas Stand Your Ground law by way of mere factual assertion. The issue is raised pre-trial through the filing of a Motion for Declaration of Immunity and/or Dismissal. To obtain such a declaration by the trial court, a hearing is held where the defendant must demonstrate by a preponderance of the evidence his or her qualifications for immunity. This essentially reverses the burden of proof traditionally at play in a criminal case. The defense presents the evidence, shows that the statutory prerequisites have been met, and requests that the court grant the motion and appropriate relief. If the Motion is granted, the defense then files a Motion to Dismiss, as there is no longer a legal basis to proceed with the prosecution. The Motions for immunity and dismissal are frequently consolidated into a single filing.

With regard to the Trayvon Martin case, the notion that Stand Your Ground prohibited the prosecution of George Zimmerman is fundamentally false. Stand Your Ground in no way prevents a prosecution from being initiated against an accused. State Attorneys routinely file charges against defendants even where there is a clear Stand Your Ground defense. In those cases, the prosecutor will file charges, and, at an appropriate stage, defense counsel may file a Motion for Declaration of Immunity and Dismissal. The matter is then heard at an evidentiary hearing, where the defense must show its entitlement to immunity by a preponderance of the evidence. If successful, immunity is granted and the case is dismissed. If unsuccessful, the prosecution is resumed and the case resolves by way of plea or trial.

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