Legislative update from Florida by Independent Program Attorney James Phillips.

 

 

Legislative update: In 2017 there was a extremely important change made to the law regarding self defense that everyone should be aware of.

This is in regards to our immunities statute, which is found in Florida Statute 776.032. Prior to July, a defendant in a criminal proceeding wanting to claim immunity from prosecution had to show by a preponderance of the evidence in a pretrial hearing that he or she was entitled to immunity. This was one of the only times a defendant in a criminal case ever had a burden to prove anything.

Now a defendant only has to make an initial showing that he or she was justified in using defensive force, and then the government must show by clear and convincing evidence that the party claiming immunity was not justified.

Not only did this law change take the burden off the criminal defendant and place it on the government, but it also made the government’s burden to rebut the defendant’s claim of self-defense higher.

In July of this year, the new version of the immunity law made national news after a circuit court judge in Miami ruled that the new version of the law contained unconstitutional changes. The judge did not find that the language of the statute was unconstitutional, but rather declared it unconstitutional because the legislature did not have the two thirds, or super majority, votes needed to make the procedural change.

On August 11, 2017, a second Miami circuit court judge found the new version of the immunity law unconstitutional for the same reason.

It is important to know that both of the circuit court judge’s rulings were not made in appellate case, but in cases that originated in their courtrooms.

So what does that mean to you and I?

These two decisions have no binding effect anywhere in the state of Florida except in those two judges’ courtrooms. Ultimately this issue will probably be fleshed out by the Florida Supreme Court.