Florida’s “Stand Your Ground” Law Ruled Unconstitutional

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Florida’s latest version of its “Stand Your Ground” law has been ruled unconstitutional by a Miami judge. The ruling will not affect the laws of other states, but its reasoning may prove persuasive if states follow the controversial path charted by Florida.

Many states in recent years have enacted “Stand Your Ground” laws. Sometimes called “No Duty to Retreat” or “Shoot First” laws, Stand Your Ground laws modify the traditional rule of self-defense by abandoning the requirement that crime victims may not defend themselves with deadly force if they can safely retreat instead.

Duty to Retreat

The “duty to retreat” requires an individual who is being threatened to walk away from the threat, rather than using deadly force, if the retreat can be accomplished safely. The duty reflects a longstanding principle that no person should harm or kill another person unnecessarily, and that the potential shame of walking away from a conflict is a small price to pay for avoiding a needless death.

Until recently, the duty to retreat was regarded as fundamental and was rarely questioned. As it was formulated in most states, the duty did not require individuals to retreat when they were confronted in their homes, an exception known as the “Castle Doctrine” (because a home is a man’s castle). Outside the home, however, the duty to retreat was routinely enforced.

For example, suppose two people get into an argument after leaving a tavern. One of the individuals makes an intoxicated threat to kill the other, accompanied by a threatening gesture. If the threatened individual can safely walk away but chooses instead to pull out a gun and shoot the person making the threat, the traditional rule would bar the shooter from using self-defense as a legal justification for killing the person who made the threat.

Stand Your Ground Laws

The duty to retreat is eliminated by Stand Your Ground laws. A typical version of the law allows individuals to use deadly force when they (1) are not engaged in criminal behavior, (2) are in a place where they have a right to be, and (3) reasonably believe that the use of deadly force is necessary to prevent imminent death, great bodily harm, or a violent felony.

Florida’s version of the Stand Your Ground law allows an individual to use force (with no duty to retreat) whenever the individual is threatened with unlawful force. Florida law allows an individual to use deadly force (with no duty to retreat) when “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” and the individual is in a place where he or she has the right to be.

Stand Your Ground Controversy

At the urging of groups like the National Rifle Association, more than half of all states have enacted some version of a Stand Your Ground law. Coupled with the proliferation of “concealed carry” laws, Stand Your Ground laws have been linked to an increase in homicide rates.

One study “found that homicide rates in states with a version of the Stand Your Ground law increased by an average of 8 percent over states without it.” Those homicides were classified as crimes, not as justifiable homicides (the kind of killing that self-defense laws excuse).

The same study compared the homicide rate in Florida during the 5 year periods before and after the state’s Stand Your Ground law was passed. The study found that Florida homicide rates increased by 8% after Stand Your Ground took effect, as compared to a 6% decline in the national homicide rate during the same time period.

Another recent study, published in the Journal of the American Medical Association, found that Florida’s overall monthly homicide rate increased 24.4% and the homicide by firearm rate increased 31.6% after Florida implemented its Stand Your Ground law. The explanation for the increase is not entirely clear, but the study’s author suggests that people who feel empowered by Stand Your Ground laws may feel justified in using deadly force in situations where there is clearly no realistic threat to their lives. Others suggest that Stand Your Ground laws encourage vigilantism.

An analysis by the Tampa Bay Times of killings in which the Stand Your Ground defense was raised found that 19% of the individuals who were killed were minors. The data also suggests that individuals who were killed by a defendant claiming a Stand Your Ground defense have disproportionately been black or Hispanic.

Critics of the studies argue that a correlation does not prove causation and that other factors might be responsible for increased rates of homicides in states that enact Stand Your Ground laws. The authors of the studies say that they attempted to control for other factors and that critics have not suggested a rational explanation for the higher homicide rates if they are not caused by Stand Your Ground laws.

Florida’s Stand Your Ground Law

Florida enacted its Stand Your Ground law in 2005. Florida went a step farther than abolishing the duty to retreat, however, when it granted immunity from criminal and civil prosecution to a person who uses force in self-defense that is authorized by the Stand Your Ground law.

Self-defense is typically raised by a defendant in a criminal trial. If a jury decides that the use of force was a justified exercise of the right of self-defense, the jury finds the defendant not guilty. Florida’s immunity statute, however, does not allow the criminal charge to proceed to trial if the defendant was justified in standing his or her ground.

As it was initially enacted, the law was unclear as to how immunity was to be decided. The Florida Supreme Court decided that the law placed the burden on the defendant to convince a judge that he or she was probably entitled to use force in self-defense. If the defendant was able to carry that burden by presenting evidence at a pretrial hearing, the defendant could not be prosecuted.

Apparently deciding that the Florida Supreme Court should not have placed that burden on the defendant, the Florida legislature amended the law, effective June 9, 2017, to provide that a defendant only needs to present prima facie evidence at the pretrial immunity hearing that self-defense was justified. Prima facie evidence is evidence that, if believed, would be sufficient to establish that the defendant was entitled to use force in self-defense.

Under the amended law, the judge does not decide whether the prima facie evidence is convincing. Rather, if the judge finds that the evidence, if believed, would support the exercise of self-defense, the burden shifts to the prosecution to prove by clear and convincing evidence that the use of force was not justified. The judge must grant immunity to the defendant if the prosecution fails to carry that burden.

Judge Rules Florida Law Unconstitutional

Liletha Rutherford was charged in Miami-Dade County with aggravated assault with a firearm. She asserted her right to immunity in a pretrial motion. Judge Milton Hirsch responded to the motion by ruling that the legislature’s revision of Florida’s Stand Your Ground law was unconstitutional.

Judge Hirsh ruled that under the Florida Constitution, the legislature makes substantive law while the judiciary makes procedural law. Based on his review of relevant precedent, Judge Hirsh decided that placing the burden of proof in an immunity hearing on the prosecution rather than the defense, and changing that burden from “preponderance of the evidence” to “clear and convincing evidence,” constituted procedural rather than substantive changes in the law. Since the legislature has no authority to enact procedural changes, Judge Hirsh decided that the new law violates the separation of powers principle embodied in the Florida Constitution.

Implications of the Ruling

For Liletha Rutherford, Judge Hirsch’s ruling means that she will have immunity from prosecution only if she can convince Judge Hirsh that she probably acted consistently with the demands of Florida’s Stand Your Ground law. For other Floridians, avoiding prosecution for inflicting harm in response to a real or imagined threat will not be quite as easy as the Florida legislature intended — assuming that other trial judges, and ultimately the state’s appellate courts, agree with Judge Hirsch’s ruling.

For the rest of the country, the ruling may have limited impact. The Florida Constitution’s distinction between substantive or procedural law is echoed in some state constitutions, but it is far from universal. More importantly, most states that have adopted versions of Stand Your Ground that abandon the duty to retreat, but have not immunized the accused from prosecution, and no other state has placed the burden on the prosecution to prove that the Stand Your Ground law did not apply as a condition of charging a defendant with a crime. Given the popularity of Stand Your Ground laws, however, Judge Hirsch’s ruling may foreshadow issues that courts in other states will have to confront in the future.

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