Stand your ground


Florida is known for beaches, sun and recently as the home of the first “Stand Your Ground” gun law.

Passed in 2005 and made infamous in its role in the George Zimmerman trial, this law was made even more potent this month when changes from Governor Rick Scott that were signed into law in June came into effect.

The law as originally passed removed the legal responsibility to retreat from a dangerous situation and allowed deadly force to be used when a person merely felt greatly threatened. It requires a criminal defendant to prove, at a pretrial hearing, that he or she reasonably felt that fear. Governor Scott approved revisions to the bill that would require prosecutors, not the defense, to shoulder the burden of disproving a self-defense claim.

Most defenses have to be proven by the defendant; this change means that the state must show by clear and convincing evidence that a person was not acting in self-defense in a Stand Your Ground hearing. And even if the state wins that motion, it still has to prove its case beyond a reasonable doubt at trial and yet again overcome Stand Your Ground.

This is again a “first in the nation” law, and it has already been found unconstitutional by a Miami judge. Judge Milton Hirsch, normally known as a pro-defense judge, sided with the state attorney who claimed that this revision forces the state to unfairly prove its case twice, making it easier for criminals to get away with murder.

Judge Hirsch ruled that the changes, made by the Florida Supreme Court and not the Florida Legislature, were a violation of the Florida constitution and the separation of powers, which would require the Florida legislature to make such a modification to a law.
Prosecutors have applauded Judge Hirsch’s ruling, which will likely head to appellate courts and probably the Florida Supreme Court. This ruling only affects cases in Miami/Dade County, but prosecutors will likely launch similar challenges throughout the state. Attorney General Pam Bondi has already indicated she will appeal, meaning she and the state attorney, normally on the same side of the law, will be adversaries in court. And Judge Hirsch, normally the foil of prosecutors, will be their champion.

As a defense attorney, I have filed Stand Your Ground motions and have won hearings. It is a powerful tool for defendants because it not only makes them immune from criminal prosecution, it also gives them immunity from civil liability. That means they can't be sued for monetary damages in a civil court. It is a get out of jail, and court, free card. And, this month, it just got a lot more potent.

Janet Johnson is a criminal defense attorney in Jacksonville who practices in state and federal courts. She is rated AV Preeminent on attorney rating website Martindale-Hubbell and has been named to the American Institute of Criminal Law Attorneys’ Top 10 Best Attorneys list. Johnson is also a legal analyst for CNN and HLN.