The truth about Florida’s “Stand your Ground” law

By Admin Thursday March 22 2012 in International News
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By CHRISTOPHER E. BENJAMIN Since the death of teenager, Trayvon Martin, there has been a whirlwind of coverage about the Seminole County’s police department’s failure to arrest his killer, 28 year old George Zimmerman.


What appears to be a simple case of an overzealous crime watch volunteer’s unprovoked and unwarranted shooting, has been muddied by the possibility of an immunity called “Stand Your Ground”. As many legal analyst have pointed out, in a typical case in which you are confronted with a dangerous situation (outside of your home) the law would require that you flee in order to avoid the confrontation. Moreover, if a confrontation cannot be avoided you are typically precluded from using deadly force unless you cannot escape and there is a “reasonable” belief that you will suffer the loss of life or serious bodily injury.



In 2009, the Florida Legislature passed the now criticized “Stand Your Ground” law which provides that in certain circumstances, a person may use deadly force to stand his ground against an attacker and be free from the fear of prosecution. The law essentially gives persons charged with murder (or another serious crime) a substantive right to assert immunity from prosecution.


Unlike a justification which may reduce the charge a person ultimately faces (or mitigate his sentencing), immunity (i.e. an excuse) is an escape from any form of criminal prosecution and in the case of “Stand Your Ground” the person may also escape civil liability. In a typical case a person is presumed to be innocent until proven guilty beyond and to the exclusion of all reasonable doubt (which is the highest burden of proof in our justice system). Moreover, it is the State’s burden to produce the evidence to persuade a jury that the alleged crime was committed by a duly charged defendant.



However, in the case of affirmative defenses, like “Stand Your Ground”, it is the defendant’s burden to prove that defense is applicable under the facts leading to the alleged crime. In the case of the “Stand Your Ground” immunity, the Defendant must show that:


1) he or she was not engaged in an unlawful act (i.e. the defendant was not the aggressor);


2) he or she was attacked in a place where he or she had a right to be and


3) he or she met force with force (including deadly force if he or she reasonably believes it to be necessary to prevent death or great bodily harm to him/herself, another or to prevent the commission of a forcible felony).


It’s important to note that reasonable belief is an objective standard which requires the Court to determine what would a reasonable person (a sane and rationale human being) have done or believed in the defendant’s situation.


When the defendant invokes the statutory immunity, the trial court must hold a pre-trial evidentiary hearing to determine if the preponderance of the evidence (which is typically the burden of proof in civil cases and one of the lowest standards in our justice system) warrants the granting of the immunity; thereby, releasing the defendant from prosecution.


If Zimmerman is to succeed in the assertion of the “Stand Your Ground” immunity, he must convince a judge that he was not engaged in any unlawful conduct when he approached Trayvon and that he had a right to be in the place in which the killing took place and that he had a reasonable fear that the significantly smaller and unarmed Trayvon posed a threat in which he could have lost his life or suffered serious bodily injury.


I believe that under the information that have come to light thus far Zimmerman would have an uphill battle in proving the facts necessary to establish his defense; however, we may never get there if the Grand Jury decides that no harm has occurred.



Christopher E. Benjamin, Esq. is an attorney in the state of Florida (Bar No. 561029). He can be reached at 954-790-7221 or


  • Joe Kizanu said:

    Very interesting article and explains very succinctly the burdon of proof and affirmative defence. I have two questions that perhaps you could provide clarity.

    The first question, it would appear that Zimmerman did not meet the criteria for affirmative defence. Why did the Fla State Attorney decide to release Zimmerman without charge. Is it not customary, in cases of murder, to incarcerate until an investigation can complete, or at a minimum, bail is set which would have to be decided by a magistrate? In other words, what criteria was the State Attorney using?

    The second question, how could ‘no harm’ be legally argued? There is a dead boy, is that not enough to establish harm?

    Monday April 02 at 8:49 am

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