“Stand Your Ground” Modification Will Offer Greater Protection for Criminal Defendants

Florida is well known for its “stand your ground” self defense mechanism. Florida has one of the more defendant-leaning, robust laws surrounding the right to use arms in a situation of self-defense. In most other states, the “castle doctrine” holds, but not with the same amount of strength as it does in Florida.

If you or a loved one believe you are protected by the “stand your ground” defense, it is important to speak with an experienced criminal defense attorney who can guide you through the criminal proceedings. Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.

The Castle Doctrine and the Opportunity to Retreat

The “castle doctrine” refers to the right of a person to not only be safe in his or her home, but also to protect it. The protections in many states have been weakened over the years, so that while a person should have the right to be safe in one’s home, he or she cannot protect it by any means necessary. At some point, other states dictate, the owner of the home should not be able to be the aggressor, and when given the opportunity to retreat, he or she must do so when necessary. The opportunity to retreat, in the eyes of the law, means that you are not in imminent danger. By not retreating, you are actually complicit in any violence that occurs, even if you were not the intruder that initiated the violence in the first place. In Florida, however, stand your ground does not put a duty to retreat on the victim and allows him or her to protect the castle by any means and any force.

Self-Defense as an Affirmative Defense

Self-defense is one of the oldest, legal affirmative defenses on the books. The foundation of the law stems from the fact that though we live in a sophisticated society that is governed by laws and rules, if someone breaks these laws and rules and it may cause imminent harm to you and/or others, you have the right to defend yourself. Those who seek protection from the shield of self-defense are permitted to do any means necessary if their life and the lives of others are at risk. The affirmative defense rests largely on the fact that it is the burden of the defendant to prove to the trier of fact that he or she held a reasonable belief that his or her life was in imminent danger of serious harm or death due to the actions of another. Though the prosecution has to convince the triers of fact (generally a jury), that the defendant did not have a reasonable fear and/or that the defendant did not actually need self-defense.

Stand Your Ground: From an Affirmative to Automatic Defense

Recently, in Florida, members in the Florida House Subcommittee on Criminal Justice passed House Bill 245, which was co-sponsored by more than 40 legislators, which looks to turn “stand your ground” from an affirmative defense to an automatic defense. In other words, instead of requiring the defendant to have the burden to proof to demonstrate that he or she met the requirements of the affirmative defense to invoke it, it would be on the state to prove that the defense does not apply. As a procedural matter, it shifts the burden of proof from the defendant to the prosecution.

The Advocates and the Opponents of the Bill

Currently in “stand your ground” cases, there is a pre-trial evidentiary hearing to determine whether there is enough evidence to show that the defendant is protected by the immunity. Opponents worry that by changing the law, the prosecution would have to prove at the pre-trial evidentiary hearing, without discovery or a review of all the witnesses, that the criminal defendant did not fall under the immunity. In other words, it would permit a mini-trial without all of the pieces of the trial and many could walk away scot-free. Advocates believe this would give more protections to defendants.

Please contact West Palm Beach criminal defense attorney William Wallshein for a confidential consultation.