On June 23, I filed a friend-of-the-court brief for the National Rifle Association in a case involving Florida’s “Stand Your Ground” law, pending before the Florida Supreme Court after that court agreed to review an important issue in the lower appellate court’s decision.
The case isn’t on the most well-known aspect of the law–its abolition of the duty to retreat before using force in self-defense. Instead, it’s on a procedural issue about implementing one provision of the law, which says that people using force in lawful self-defense are immune from prosecution. Under Florida case law, immunity is determined at a pretrial hearing on a motion to dismiss. The courts currently require people claiming self-defense to carry the burden of proving that they’re entitled to immunity, although that issue has never been fully argued before the state supreme court.
The NRA brief argues that putting the burden of proof on defenders is contrary to the state legislature’s strong policy of supporting self-defense by law-abiding people, who should be presumed innocent at all stages of the criminal process.
The brief also addresses an interesting situation involving states using other states’ laws as models for their own legislation. Several states have copied the Florida provision on defenders’ immunity, and some of those states’ courts have already issued mixed decisions on who bears the burden of proof. The brief argues that the better-reasoned decisions put the burden on the government, and that decisions putting the burden on defenders are flawed. Now, the Florida Supreme Court may end up interpreting its own law based on how other states have interpreted their own laws copied from Florida.