Tag Archives: legislature

Florida Legislature Agrees on Stand Your Ground Changes

As the legislative session neared a close last week, the Florida House and Senate reached a compromise to a bill that substantially changes the Stand Your Ground Law in Florida. The new law would shift the burden from from the Defendant to the prosecutor at the pretrial hearing to prove that the case is strong enough to proceed against the Defendant. If Governor Scott signs the bill, the burden will no longer be on the Defendant at the ‘Stand Your Ground Hearing’.

Though both the House and Senate agreed that they wanted to put the burden on the prosecutor for the pretrial hearings, it wasn’t until the last day of session on Friday that both houses came to a compromise on what that burden should be. The Senate was pushing for a beyond a reasonable doubt standard, while the House position to use a clear and convincing standard ultimately won out. The bill will now go to Governor Scott’s desk to sign before it becomes law. It is expected he will sign it, as the bill garnered widespread Republican support in both houses of the legislature.

What does this change mean? The original ‘Stand Your Ground’ law, among other things, created a right of immunity from prosecution for people who use justifiable force to defend themselves. Unfortunately, the legislature did not clearly establish a procedure for determining when immunity was appropriate, that is, how do you know when force is justified so that a person cannot be prosecuted. Over the next 12 years, the courts formulated a procedure whereby a hearing would be held prior to the case going to trial. The courts put the burden on the Defendant to demonstrate that he was immune from prosecution.

The legislature has now essentially said, hey wait: the burden is on the state to prove a case. We didn’t establish immunity to burden the Defendant, or to remove the burden from the State… we created it to protect those who used force to defend themselves. This new law, if it is signed by the Governor, will put the burden on the prosecutors to demonstrate by clear and convincing the likelihood that the defendant was not justified in using force before they can put the defendant to trial (where they will still have the burden beyond and to the exclusion of every reasonable doubt).

While there was strong support for the bill, there was opposition from anti-gun activists, as well as from many prosecutors. The opposition from prosecutors may seem surprising from a generally conservative profession, but this bill directly affects them by making it more difficult to prosecute cases where use of force will be raised as a defense. It has been speculated that prosecution costs will rise, but the other effect of the bill may be to discourage prosecutors from proceeding on cases they are less likely to win. The cost may end up being a wash when all the factors come to bear, but only time will tell. In the meantime, this bill will definitely help people who claim justifiable use of force.

Florida Legislature Planning Bill to Re-establish the Death Penalty

The Death Penalty has been on hold in Florida for some time. While the Florida Supreme Court struck down the current law for its non-unanimous procedure, that law was only passed a year ago to address earlier decisions that prohibited the enforcement of the death penalty, also for procedural reasons. The courts have made it clear they will require a unanimous finding by a jury before a judge can impose death. A new bill being prepared would address that. Once the law is reestablished, the prosecutors across the state will have to review the cases since 2002 to determine if they wish to proceed on new death penalty sentencing hearings: which will affect a few cases here in Southwest Florida.

There Could be Changes Coming to the Stand Your Ground Law

Florida Supreme Court

FL Supreme Court

When the Florida legislature passed the “Stand Your Ground” law, one of the provisions is for immunity from prosecution from those who used force in self-defense, under the law. The lawmakers failed to explain exactly how this immunity would be exercised. The courts then worked to apply the law, and crafted a system where the accused can file a motion to dismiss based on that promise of immunity, and would have a chance to show the court at hearing they were entitled to immunity.

At issue is that the courts have found the burden is on the accused to prove their entitlement to immunity, instead of the state. The state normally bears the burden of proof, and some proponents of the law do not like that the burden has shifted onto the protected people the law was designed to protect. Unfortunately for them, the Florida Supreme Court upheld that procedure, since there was no specificity in the law. Lawmakers are now looking at the possibility of amending the law to put the burden to demonstrate that individuals are not immune in self-defense cases back on the state.

See Also: Florida Supreme Court Opinion upholding the procedure, Bretherick v. State

and the latest story via NBC-2

Changes to Florida’s Stalking laws / statutes

Florida recently made some changes to its law regarding stalking, which went into effect just over a week ago, October 1, 2012.  Some changes were also made to the laws regarding injunctions related to stalking: specifically, a specific statute for stalking injunctions was created.  I’ll address this briefly… as the new cause of action is a waste of legislative effort and ink.  Stalking was already specifically listed as a crime that could trigger an injunction.  This new law probably makes some lawmaker feel good for having passed it, and earned some good publicity, but it doesn’t create a cause of action that wasn’t already available.   Mostly, it’s repetitive and adds to the already voluminous Florida Statutes, which already fill six books.

Regarding the criminal stalking statute, Section 784.048 of the Florida Statutes, one of the main changes was to alter some of the definitional language.  The most dramatic changes are to the language of the “credible threat” definition.  The definition was changed to specifically incorporate verbal and nonverbal threats, including those by electronic communication and by pattern of conduct.  This is rather silly, as the old definition more broadly covered any “threat”, I don’t know why the legislature felt it necessary to delineate or pare down the broader language.  Again, good publicity for the bill sponsor, I’m sure.

The changes go on to eliminate the intent requirement from the definition of “credible threat”, essentially making the crime a strict liability offense.  I doubt that this change is constitutional.  Traditionally, criminal statutes require some ‘mens rea’, criminal intent, before we subject people to incarceration for the activity.  The amended statute means that an inadvertent comment, which was not intended to place fear in anyone, could result in prosecution if that comment gets to the person, and they become afraid, even if the speaker never meant to scare them.  You can read the full text here.  This could punish some innocent speech.  The statue includes langauge excepting “constitutionally protected activity” from being included in the prohibition: and last I checked, most speech is constitutionally protected.  Interestingly, simply using the word threat in the amended definition may preclude the effort to remove intent from the offense, as threat is traditionally defined as a statement of an intent to cause harm.  Formerly, the language read: “…a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety.”

The statute still includes a requirement that the fear be reasonable.  Language was added to say that incarceration is not a bar to prosecution for violations, not that it ever was.  Also, there’s no need to prove the ability to carry out the threat, not that ability was required by the old language, either. 

To be guilty of the offense of aggravated stalking, the defendant must be guilty of stalking the individual and have an aggravating factor, such as making a “credible threat” (or having an injunction, etc).  The language does expand “credible threat” to include not only the person, but their family as well, which is a pretty sensible clarification of the definition (there was previously some inclusory language in the felony subsection.)

Additionally, the statute now authorizes the court to issue an injunction for up to 10 years which may be the most sensible addition.  It’s a civil remedy, not an unlawful punishment.  It spares the victim the necessity of going to court separately for an injunction that could exceed the incarceration or supervision on the criminal case, but does not affect the ability to seek other relief in civil court, such as a permanent injunction.  This provision adds a good option for the judge, without being unnecessarily repetitive or burdensome. #newlaws