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FLORIDA STAND YOUR GROUND LAW, 2018 UPDATES Florida Statutes § 776.032(4)(2017)- State Must Overcome


An article by Joe Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered

Chapter 776 Florida Statutes is Florida's "Stand Your Ground" law that establishes immunity from prosecution when a defendant uses force, including deadly force, in accordance with specified prerequisites. The 2017 Amendment to Florida Statutes § 776.032 (4) remains a petri dish of confusion in the Florida Courts as there is little consensus between districts why the Amendment is constitutional, who can use it as a shield, or whether it applies equally to law enforcement officers.

The Florida Supreme Court should be addressing district court decision conflicts either later in 2018 or by early 2019, otherwise Florida Courts will become more backlogged with Stand Your Ground cases waiting for official guidance, prior to conducting extended stand your ground hearings.

Florida Statutes § 776.032 states in pertinent part:

A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution . . . for the use of such force . . . . As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant. Florida Statutes § 776.032(1)(2015).

Florida Statutes § 776.012 permits the use of both deadly and non-deadly force in certain circumstances.

Florida Statutes § 776.012 (2)(2015) provides:

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be. Id., See Little v. State, 111 So. 3d 214, 217-18 (Fla. 2d DCA 2013).

In 2017 the Florida Legislature amended Florida's Stand Your Ground law by adding subsection (4) to § 776.032 that now reads:

(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).

The June 9, 2017 Amendment replaced the previous burden that required a Defendant to prove by a preponderance of the evidence that he or she was entitled to stand your ground immunity. Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015). Based upon the 2017 Amendment to subsection (4) the burden of proof now rests with the State to prove by clear and convincing evidence that a defendant is not entitled to immunity after a prima facie case of self defense has been raised by a putative defendant.

In order to determine whether there should be retroactive application for "a change in statutory law, a key determination is whether the statute constitutes a procedural/remedial change or a substantive change in the law." Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007).

The Florida Supreme Court in Smiley defined procedural statutes as those "which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing." Id. (quoting City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)).

Conversely, substantive statutes, achieve a "remedial purpose by creating substantive new rights or imposing new legal burdens." Smiley, 966 So. 2d at 334 (quoting Arrow Air, Inc. v. Walsh, 645 So. 2d 422, 424 (Fla. 1994)).

There is a presumption against retroactivity for substantive statutes, while procedural statutes "should be applied to pending cases in order to effectuate the legislation's intended purpose." Arrow Air, Inc., 645 So. 2d at 424.

"The general rule is that in the absence of clear legislative intent to the contrary, a law affecting substantive rights, liabilities and duties is presumed to apply prospectively." Metro. Dade Cnty. v. Chase Federal Housing Corp., 737 So. 2d 494, 499 (Fla. 1999). The "presumption against retroactivity will generally coincide with legislative and public expectations." Arrow Air, Inc., 645 So. 2d at 425. Additionally, "[t]he policy rationale behind this rule of construction is that the retroactive operation of statutes can be harsh and implicate due process concerns." Id. at 499.

However, in numerous other contexts Legislative requirements regarding burden of proof have been deemed procedural in nature. Shaps v. Provident Life & Acc. Ins. Co., 826 So. 2d 250, 254 (Fla. 2002) (burden of proof is procedural for conflict of laws purposes); Ziccardi v. Strother, 570 So. 2d 1319, 1321 (Fla. 2d DCA 1990) ( the burden of proof in a statute was a procedural change in action for civil damages based upon criminal activity); Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239, 243 (Fla. 1977) ( negligence action "burden of proof requirements are procedural in nature," and "procedural rights could be abrogated retroactively because ‘no one has a vested right in any given mode of procedure'").

Florida Courts do not have a consensus whether the June 9, 2017 Amendment to Florida Statutes § 776.032(4) is constitutional with retroactive application, however all Florida Courts do have a consensus that the Amendment is constitutional when applied to self defense immunity from prosecution claims arising from conduct occurring on or after June 9, 2017.

An additional constitutional concern stemming from the substantive versus procedural label is whether the Amendment constitutes an unconstitutional violation of the separation of powers set forth in article II, section 3 of the Florida Constitution. Article V, section 2 vests the Florida Supreme Court with the authority to promulgate "rules for the practice and procedure in all courts." FLA. CONST. art. V, § 2(a). When an Amendment is deemed a procedural law, but is promulgated by the Florida Legislature, it raises separation of powers concerns and further scrutiny regarding the constitutionality of it's enactment.

However, the Florida Supreme Court specifically articulated in Bretherick that the prior version of Florida's Stand Your Ground law was "silent as to how best effectuate the defendant's substantive right to this immunity from prosecution," thus acknowledging that the Florida Legislature should have enacted a procedural provision regarding the burden of proof in the original statute. Bretherick, 170 So. 3d at 772.

The Fifteenth Circuit Of Florida has held the Amendment to be procedural, as intertwined with substantive provisions of Florida's Stand Your Ground Law, and retroactive to all pending cases. State v. Harris, Order Denying Defendant's Motion to Dismiss Stand Your Ground, Case No. 2015CF004115B (Fla. 15th Cir. Ct. Mar. 16, 2018); State v. Coley, Order Denying Defendant's Motion for Declaration of Immunity and Dismissal, Case No. 2016CF011345 (Fla. 15th Cir. Ct. Dec. 20, 2017). (finding that the Amendment filled the gap in the initial statute as discussed in Bretherick, and that the application of the Amendment does not violate article X, section 9 of the Florida Constitution, as the shift in the burden of proof is procedural and does not change the substantive offense or punishment.)

In Martin v. State, No. 2D16-4468, 2018 WL 2074171 (Fla. 2d DCA, May 4, 2018), Florida's Second DCA held that the Amendment is procedural in nature and can be applied retroactively to all criminal cases pending, including cases for which appeals are still pending.

In Love v. State, No. 3D17-2112, 2018 WL 2169980 (Fla. 3d DCA May 11, 2018), Florida's Third DCA held that the Amendment is not retroactive, because retroactive application would violate article X, section 9 of the Florida Constitution. (emphasizing that Article X, section 9 has been construed "to bar criminal defendants from benefitting from changes in the statute that controlled the original prosecution and sentence." citing State v. Watts, 558 So. 2d 994, 998 (Fla. 1990)).

Legislative acts have a presumption of constitutionality and are construed "to effect a constitutional outcome whenever possible." Florida Dept. of Revenue v. Howard, 916 So. 2d 640, 642 (Fla. 2005). When there are two possible interpretations of a statute, one that is valid and one that is invalid, courts must adopt the valid construction. State v. Lick, 390 So. 2d 52, 53 (Fla. 1980). "Only clear and demonstrated usurpation of power will authorize judicial interference with legislative action." Eastern Air Lines, Inc. v. Dep't. of Revenue, 455 So. 2d 311, 314 (Fla. 1984).

But also see State v. Raymond, 906 So. 2d 1045, 1048-1049 (Fla. 2005) where the Florida Supreme Court succinctly defines what constitutes a procedural rule of court and thus remains outside the province of The Florida Legislature.

This is an excerpt of what The Florida Supreme Court said regarding procedural v. substantive laws in State v. Raymond, 906 So. 2d 1045, 1048-1049 (Fla. 2005).

It is a well-established principle that a statute which purports to create or modify a procedural rule of court is constitutionally infirm. Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Military Park Fire Control Tax Dist. No. 4 v. DeMarois, 407 So.2d 1020 (Fla. 4th DCA 1981). This principle is grounded in article V, section 2(a) of the Florida Constitution, which states that the Florida Supreme Court shall adopt rules for the practice and procedure in all courts. Furthermore, the constitution provides that powers constitutionally bestowed upon the courts may not be exercised by the Legislature. See art. II, § 3, Fla. Const. The terms practice and procedure "encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. `Practice and procedure' may be described as the machinery of the judicial process as opposed to the product thereof." In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 66 (Fla.1972) (Adkins, J., concurring). In other words, practice and procedure is the method of conducting litigation involving rights and corresponding defenses. Skinner v. City of Eustis, 147 Fla. 22, 2 So.2d 116 (1941). On the other hand, matters of substantive law are within the Legislature's domain. Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. State v. Garcia, 229 So.2d 236 (Fla.1969). It includes those rules and principles which fix and declare the primary rights of individuals with respect to their persons and property. Adams v. Wright, 403 So.2d 391 (Fla.1981). State v. Raymond, 906 So. 2d 1045, 1048-1049 (Fla. 2005).

The Martin/Love DCA conflict has been Certified to the Florida Supreme Court for ultimate determination of whether the 2017 Amendment to Florida Statutes § 776.032(4) is a substantive law, procedural law, or a mixed substantive/procedural law, whether the Amendment is constitutional, and whether it can be applied retroactively to pending stand your ground motions to dismiss involving conduct occurring prior to June 9, 2017.

Additionally, in Peraza v. State, 226 So. 3d 937 (2017), Florida's Fourth DCA recently held that law enforcement officers are entitled to immunity under the general provisions of sections 776.012(1) and 776.032(1), applicable to "a person." Peraza certified conflict with the Second District's opinion in Caamano v. State, 105 So. 3d 18 (Fla. 2d DCA 2012), which held that a law enforcement officer when using deadly force while making an arrest must proceed under section 776.05, specific to law enforcement. The Florida Supreme Court granted review of Peraza, regarding applicability of Stand Your Ground immunity to law enforcement that is still pending ruling at this time. State v. Peraza, No. SC17-1978, 2018 WL 2073456 (Fla. Feb. 1, 2018).

Florida Prosecutor's New Burden Of Proof Is Clear And Convincing Evidence:

In Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), Florida Fourth District Court Of Appeal defined clear and convincing evidence somewhat by stating what it should contain, e.g. "..a workable definition of clear and convincing evidence must contain both qualitative and quantitative standards. We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit; and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Id.

Florida Defendant Must Show A Prima Facie Case First Before Burden Shifts To State:

The Amendment states that "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 is on the State to prove that a defendant is not entitled to immunity. Florida Statutes § 776.032(4) (2017).

Prima Facie Defined For Purposes Of Florida Stand Your Ground Motion:

Prima facie is defined as "sufficient to establish a fact or raise a presumption unless disproved or rebutted," or "on first appearance but subject to further evidence or information." Prima Facie, Black's Law Dictionary (8th ed. 2014).

The Author has found no reported appellate cases in Florida that describe what facts or evidence constitute a prima facie case for purposes of Florida's Stand Your Ground law, however, Florida's Fifteenth Circuit has ruled that it requires that "the defense must present some evidence to establish a presumption of self-defense before the burden shifts to the State." State v. Nouman Khan Raja, Order Denying Defendant's Motion to Dismiss Stand Your Ground, Case No. 2016CF005507 (Fla. 15th Cir. Ct. June 1, 2018)

Immunity From Prosecution Elements:

To be immune from prosecution under section 776.012(2), a trial court must find from the evidence that at the time a defendant used deadly force that he or she, "..(1) reasonably believed that using such force was necessary to prevent imminent death or great bodily harm to himself or to prevent the imminent commission of a forcible felony, (2) was not engaged in criminal activity, and (3) was in a place he had a right to be." State v. Chavers, 230 So. 3d 35, 39 (Fla. 4th DCA 2017).

Objective Standard To Be Used By The Court Weighing Evidence For Reasonableness:

A Court must apply an objective standard in determining whether a putative defendant's belief of imminent death or great bodily harm was reasonable. Mobley v. State, 132 So. 3d 1160, 1164-65 (Fla. 3d DCA 2014); Chaffin v. State, 121 So. 3d 608, 612 (Fla. 4th DCA 2013). This analysis entails asking whether, based on the circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. Mobley, 132 So. 3d at 1164-65. This objective reasonableness standard also applies to law enforcement officers. Peraza, 226 So. 3d at 942; see also Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004). (In Peraza, the court ruled that the officer's use of deadly force was objectively reasonable and supported by competent substantial evidence, in part because "the officer's account was consistent with the other credible witnesses' testimony and the physical evidence." Peraza, 226 So. 3d at 946.)

Weighing Evidence Human Factors At Stand Your Ground Hearing Used By The Court:

Florida' Fifteenth Circuit considered the following human factors objectively to determine that Nouman Khan Raja's use of deadly force was not reasonable:

"During the course of the hearing, the Court had the opportunity to observe witnesses as they were testifying on the stand. The Court has taken into consideration certain intangible observations regarding the witnesses voices, emotions and body language displayed or exhibited during the hearing. Specifically, the Court observed the following: the witness's demeanor while testifying; the frankness or lack of frankness of the witness; whether the witness was honest and straightforward in answering the attorney's questions; any interest the witness might have in the outcome of the case; the means and opportunity the witness had to know the facts about which they testified; the ability of the witness to remember the matters about which they testified; any prior inconsistent statements; whether the testimony agreed with other testimony and evidence presented; and the reasonableness of the testimony in light of all the evidence presented." Nouman Khan Raja, Order Denying Defendant's Motion to Dismiss Stand Your Ground, Case No. 2016CF005507 (Fla. 15th Cir. Ct. June 1, 2018)(In Raja the Court specifically found that defendant initially established a prima facie case of self defense, yet later found Raja's testimony not credible, and ultimately ruled that Raja's use of deadly force was not reasonable, citing Chavers, 230 So. 3d at 39.)

Florida's Stand Your Ground Law 2017 Amendment shifting the burden to the State to overcome a putative defendant's initial prima facie showing of self defense through production of clear and convincing evidence to the contrary continues to be hotly debated and litigated in Florida that will likely continue for some time until the Florida Supreme Court decides these three issues:

1. That Florida Statutes § 776.032 (4) is constitutional;

2. Whether Florida Statutes § 776.032 (4) can be applied retroactively to self defense cases pending now that are based upon conduct occurring prior to June 9, 2017; and

3. Whether Florida's Stand Your Ground law should apply equally to law enforcement officers.

In the meantime, most Florida Circuit Courts that do not reside within the Counties served by the 2d or 3d Districts of Florida will be free to apply Florida Statutes § 776.032 (4) to their cases as they deem appropriate, as the Fifteenth Circuit for the State Of Florida has recently done.

Do not be surprised when The Florida Supreme Court finds that the 2017 Amendment is constitutional, and applies equally to law enforcement officers, as a substantive law change enacted by the Florida Legislature, and is therefore, not to be applied retroactively for any self defense immunity from prosecution motion to dismiss, based upon conduct occurring prior to the effective date of the Amendment June 9, 2017.

This article is for informational and educational purposes only and should not be construed as constituting legal advice. In fact it is not legal advice and was written by a non-attorney. You should consult with your attorney to determine the best course of action to take on your case.

Copyright 2018 All Right Reserved, by Joseph J. Pappacoda, JD, Senior Litigation Paralegal, GhostWriter Paralegal, Chartered, Fort Lauderdale, Florida

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