The Volokh Conspiracy

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Florida judge strikes down one procedural aspect of Florida 'stand your ground' law—but the basic principle remains


There's been much news recently about a Miami trial court decision striking down one procedural aspect of Florida's "Stand Your Ground" law. But it's important to realize that the decision, even if affirmed, relates to some unusual Florida twists, not to the broader "Stand Your Ground" principle.

1. First, a bit of background on self-defense law: In all states,

  1. If you reasonably fear death, serious bodily injury, rape or kidnapping, you can generally use deadly force to defend yourself. (In about half the states, you can do the same to defend yourself against robbery, even in the absence of the other threats; in some states, the same is true as to burglary and some other crimes.)
  2. You may not use deadly force absent a reasonable fear of some such threat, for instance if you're only being threatened with a simple assault. (In such a situation, you may use non-deadly force, but not deadly force.)
  3. You may use deadly force without retreating, if retreating would increase your danger (for instance, if you're being threatened with a gun and fleeing would let the person shoot you in the back).
  4. You may use deadly force without retreating, even if retreating would be safe, if you are at home.
  5. Once you raise the self-defense defense, the prosecution must disprove at trial, beyond a reasonable doubt. (Only one state, Ohio, doesn't follow this rule; there, the defense must prove self-defense at trial by a preponderance of the evidence.

2. Now, the substantive duty-to-retreat / stand-your-ground debate: A bit fewer than 20 states follow a legal rule called the "duty to retreat"—if (a) you reasonably fear death, serious bodily injury, etc., and (b) you are outside your home, and (c) you can avoid the risk of death, serious bodily injury, etc. with perfect safety by retreating, then you must retreat, or you will lose your right to use deadly self-defense (i.e., your use of deadly self-defense will be criminal homicide, perhaps even murder). A bit more than 30 states adopt a rule called "stand your ground": There, someone who is in a place where he is legally entitled to be does not need to retreat before using deadly force (assuming he reasonably fears death, serious bodily injury, etc.), even if there is an opportunity to retreat with perfect safety.

Thus, say that you are sitting in a restaurant, talking to your friends. You get into an argument, and someone takes out a knife and says, "If you don't leave right now, I'm going to kill you!" (Maybe he doesn't like your race or religion, or maybe he doesn't like your dating his ex-girlfriend, or maybe you have indeed wronged him in the past, but are lawfully where you are right now.) Say that you reasonably believe that he's about to stab you, and say that you believe that, by leaving, you will indeed avoid the threat. You decide to stay, he lunges at you, and you shoot him. In a stand-your-ground state, you have committed no crime. In a duty-to-retreat state, you are guilty of homicide, maybe of murder.

The chief argument in favor of the duty to retreat is that it can prevent needless bloodshed, whether of the threateners, of people whose intentions are misunderstood, of bystanders who get caught in the crossfire, or by people who get involve in the feuds or gang wars that can be triggered by such killings. The chief argument in favor of stand your ground is that people shouldn't be forced to give up their liberty, by being pushed out of places where they have every right to be, because a thug is threatening them.

The debate about the duty to retreat in the United States has been going on for over 200 years. Florida adopted "stand your ground" in 2005. Nothing in the Miami decision overturns that principle, though the Miami judge makes clear that he disapproves of "stand your ground" as a policy matter.

3. Florida and several other states also have a procedural rule related to "stand your ground", which provides that a person who lawfully uses self-defense "is immune from criminal prosecution" in such cases. In State v. Dennis (2010) and State v. Bretherick (2015), the Florida Supreme Court held that this gives defendants the right to move to dismiss the charges against them; and if the trial judge concludes, by a preponderance of the evidence, that the defendant was acting lawfully, the charges would be dropped. If the judge refuses to drop the charges, the trial jury would still have to find that the defendant is guilty beyond a reasonable doubt. But if the defendant's case is strong enough, he can avoid the risk, worry and cost of a trial (and perhaps much of the pressure to plea bargain).

This thus gives criminal defendants who raise self-defense arguments an extra layer of protection, in those stand-your-ground states that have such a procedural rule. (In many other stand-your-ground states, there is no such procedural rule, and the self-defense arguments generally end up being made just at trial.) Nothing in the Miami judge's decision overturns this Florida procedural protection, either.

4. But a month ago, the Florida Legislature strengthened this procedural rule still further, by requiring the prosecution to prove absence of self-defense at this pretrial immunity hearing, and requiring such proof to be by clear and convincing evidence. Think of it this way (and I realize that this is an oversimplification):

a. In most stand-your-ground states, there's no special pretrial hearing. The prosecution must prove the defendant's guilt (i.e., absence of self-defense) by a 95 percent likelihood (to oversimplify the beyond-a-reasonable-doubt standard).

b. In Florida until last month, there had to be at least a 50 percent likelihood of the defendant's guilt at the pretrial hearing for the case to go forward; then, the prosecution still had to prove the defendant's guilt at trial by a 95 percent likelihood.

c. Under the Florida statutory amendment enacted last month, there had to be at least a 75 percent likelihood (to oversimplify the clear-and-convincing-evidence standard); then, the prosecution still had to prove the defendant's guilt at trial by a 95 percent likelihood.

The Miami judge's decision held that this new clear-and-convincing evidence provision (i.e., item c) was unconstitutional, because of a peculiarity of Florida constitutional law. Article 5, section 2(a) of the Florida Constitution provides that,

The supreme court shall adopt rules for the practice and procedure in all courts …. Rules of court may be repealed by general law enacted by two-thirds vote of the membership of each house of the legislature.

As the Florida Supreme Court has held, this means that "the power to initiate" any procedural rules "rests in this Court," and the legislature has only the power to "repeal[]" them by a two-thirds vote; indeed, the court has taken the view that the legislature may not itself enact rules of evidence, though the court often does use its own rulemaking power to implement any legislatively proposed rules.

Things aren't done this way in the federal system: Congress is quite free to enact procedural rules as well as substantive rules. The same is true, to my knowledge, in most states. But some states, including Florida, take a different view of the separation of powers, and reserve certain kinds of rulemaking solely to their judiciaries.

And Florida court decisions apparently have labeled burden of proof rules (who has to show something?) and quantum of proof rules (does it have to be shown by preponderance of the evidence, clear and convincing evidence, or beyond a reasonable doubt?) as "procedural." Again, such rules may not be viewed as procedural by federal courts in some contexts: For instance, in deciding whether to apply state or federal rules in civil "diversity" cases—i.e., cases under state law that come to federal court because the parties are citizens of different states—federal courts ask whether a particular rule is "substantive"; and they have treated burden-of-proof rules as substantive in this sense. But the question here is how the Florida court system views such rules; and it does seem like it treats them as procedural.

So this is why the Miami trial court decision struck down the clear-and-convincing evidence statutory amendment: The amendment, the trial court held, conflicts with the rule adopted by the Florida Supreme Court for stand-your-ground pretrial immunity hearings in State v. Bretherick (2015); and it's a procedural rule, on which the state Supreme Court has authority; and the legislature's two-thirds repeal power isn't applicable (presumably because the amendment wasn't enacted by a two-thirds vote of the legislature, and is in any event not just a repeal but a new provision).

And when the decision will doubtless be appealed, the appellate courts will be focused on this twist of Florida state constitutional law, as well as on this specific clear-and-convincing-evidence provision. They won't be deciding whether the substantive stand-your-ground principle should be displaced (that principle is clearly constitutionally permitted), and they won't even be deciding whether there should be pretrial immunity hearings (since the Florida Supreme Court itself authorized such hearings). And their decision is unlikely to have much impact outside Florida; other states don't have the clear-and-convincing-evidence procedural provision, and they generally don't have the specialized Florida Constitution rules about the allocation of power between the judiciary and the legislature.