June 30, 2017: FL SYG Amendment

News: Florida Governor Scott signed into law an amendment to the Statute 776.032 (Stand Your Ground). Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.  The effect shifts the burden of proof to the prosecution when Stand Your Ground immunity is asserted by a criminal defendant.  The State (prosecution) must overcome the asserted immunity with clear and convincing evidence. 

Related News: Florida Governor Scott signed into law an amendment to Statute 766.013 (Justifiable use of Force).  The effect is to remove inconsistencies with other Statutes. 

Now for the rest of the story: the structure of a constitutional republic is also the governmental structure of the State of Florida. Laws are passed by the Legislature, signed into law by the Executive and interpreted by the Judicial when there are conflicts.  In the case of HB245/SB128, the legislature had to provide an amendment to a law passed in 2005.  It took 12 years for the “system” to work to accomplish and explicitly state what the Legislature intended in 2005. 

The legislative action in 2017 was a direct result of a Florida Supreme Court decision in 2015. The Florida Supreme Court resolved the issue of what the procedure was to raise a claim of immunity, by whom, and to what level proof was required.  The Florida Supreme Court ruled five to two that the criminal defendant is to assert the immunity through a motion to dismiss at a pretrial evidentiary hearing and the defendant has the burden of proof to establish his or her entitlement to the immunity by a preponderance of the evidence.    The Florida Supreme Court decision was based in part on their interpretation of the intent of the Florida Legislature. 

It is clear this was not the intent of the Legislature since they amended FS 776.032 to add subsection (4):

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).

There was some sausage making between the House of Representatives and the Senate to get to this result. SB128 was introduced by Senator Bradley and HB245 was introduced by Representative Payne.  These were filed at the end of 2016.  In January the Judiciary Committee in the Senate voted 5 to 4 to approve.  In February it was voted Favorable by the Rules Committee by an 8 to 2 vote in the Senate.  In March a Committee Substitute (CS) bill was passed 23 to 15 in the Senate.

In April the House passed the CS 74 to 39. In May the Senate passed the CS 22 to 14. Governor Scott signed the amendment into law on June 9. 

I will also mention the names of supporters of the legislation, Simpson, Bean, Baxley, Steube, Mayfield, Brandes, Broxson, Benacqvisto, Thurston, Simmons, and  Rodriquez.  Florida residents should recognize a few of these names for previous legislation seeking expansion or protection of gun rights for law abiding citizens in Florida.

 

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