Are You on Solid Ground to STAND YOUR GROUND?

Our United States Constitution became effective on March 4, 1789. A cornerstone of the United States Constitution is the right to bear arms. The 4th Amendment to our Constitution enforced the notion that “your home is your castle”—that’s pretty solid ground.

Florida has long acknowledged the Fundamental Right of Citizens to Defend One’s Self and Others. This right is found in ARTICLE I, Section 8(a) of our Florida State Constitution.

In 1937 the case of Grady v. State made clear that the burden of establishing the Defendant’s guilt lies with the State.

Although Florida law has always recognized the right to act in self-defense, 2005 was a pivotal year for Self Defense. In 2005, our legislature strengthened the right to Self Defense with Ch. 2005-27- known as the STAND YOUR GROUND STATUTE. Your right to defend yourself or others continued to solidify. This law changed the application of the law of self-defense in three major ways:

First, it eliminated the duty to retreat when attacked outside the home before using lawful deadly force.

Second, the bill created a presumption that a person had “reasonable fear of imminent death or great bodily harm” if the person was attacked in his or her home or conveyance.

Third, the bill provided immunity from “arrest, detaining in custody, charging or prosecuting” a person validly exercising his or her right to self-defense. Ch. 2005-27, § 4, Laws of Fla.

Immunity from prosecution was created by adding a new section to chapter 776, Florida Statutes, which reads: 776.032 Immunity from Criminal prosecution and civil action for justifiable use of force.

(1) 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 and civil action for the use of such force.

The Legislature found that it is proper for law abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.

In 2015 in the case of Bretherick v. State, the Florida Supreme Court held that at the self-defense immunity hearing, the defendant was required to prove he or she was entitled to the immunity by a preponderance of the evidence. This case put your right to self-defense on shaky ground because the accused had the burden of proof to convince a judge that you deserve immunity. This was a problem because this burden left many with a choice between a statutory right to immunity and a constitutional right to remain silent. That was unfair in a Country and State where we have a Right to Remain Silent.

Also, until 2017, section 776.032 did not specify how this immunity from arrest, detention, charging, or prosecution was to be effectuated. In 2017, the law was amended to its current state.

Now, we are on more solid ground than ever before. Since 2017, in a criminal prosecution, once a Prima Facie Claim of Self Defense immunity from criminal prosecution has been raised by the defendant in a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the State to overcome the immunity from criminal prosecution.

Now, a citizen need only raise a Prima Facia Claim of Self Defense. What does that mean?

To “raise” something is to bring up for discussion or consideration; to introduce or put forward.

“Prima facie” is defined as sufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may be later proved to be untrue.

A “claim” is defined as a statement that something yet to be proved is true; the assertion of an existing right, and a demand for ... a legal remedy to which one asserts a right.

Presentation of Self-Defense Claims

Now, in order to assert a self defense claim, the accused individual has 3 ways to make a claim.

Immunity Hearing: First, you may request an Immunity Hearing: In this hearing, once a criminal court judge agrees that you have put forward a Prima Facia Claim of Self Defense, the State has the burden to overcome your claim by clear and convincing evidence. They will likely call the witnesses against you to do this. You are on solid ground under the law to make this claim by filing a Motion. The shaky part of this scenario is that one judge decides whether or not the State has presented enough evidence not to grant you immunity from prosecution.

Writ of Prohibition: Should the Court deny your motion for immunity, you are on solid ground to file a Writ of Prohibition to the higher court. Now, the District Court of Appeal can freeze the case and allow for review and appellate ruling on self-defense immunity.

Trial: If you lose the argument at this level, the next step is Trial. As in any criminal trial, the State bears the burden to prove their case beyond and to exclusion of all reasonable doubt. You have the right to argue Self-Defense. Now you are truly exercising your Constitutional Right to trial by Jury. You are on solid ground to do so. You will present your case to the People and argue your Constitutional right to Stand Your Ground and Defend yourself or others. At this point, the question of whether you are on solid or shaky ground is in the hands of the jury!

Sources:; Wikipedia; Bretherick v. State, 170 So. 3d 766, 779 (Fla. 2015); Jefferson v. State, 264 So3d 1019 (2 DCA 2019);Florida Statutes:776.032; 776.012; 776.013; 776.031;Black’s Law Dictionary (10th ed. 2014); Grady v. State.