Friday, July 17, 2015


Years ago, when I was an assistant state attorney (ASA), I got sued for malicious prosecution. As an ASA, I had absolute immunity from suit for malicious prosecution. In order to avail myself of that immunity, I had to plead and prove that I was an ASA. The plaintiff who was suing me did not have to prove that I wasn’t an ASA, I had to prove that I was.

I once testified on behalf of an officer who was being sued for false arrest. He had immunity from suit because he was a sworn law enforcement officer and he was acting in good faith when he made the arrest. He had to plead and prove that he was a sworn law enforcement officer acting in good faith, the plaintiff did not have to prove that he wasn’t acting in good faith. My testimony helped him to prove he was acting in good faith, and therefore he got the suit against him dismissed.

I once represented a client who was immune from suit because of former jeopardy. He had already been prosecuted for the crime and already been acquitted. I filed a motion to dismiss the prosecution on grounds of immunity for former jeopardy. Now, if we had gone to a hearing, who do you suppose had the burden of proof? I, on behalf of my client, had to prove that my client had already been prosecuted and acquitted. The state did not have to prove that he had not been prosecuted and acquitted.[1]

That’s the way every form of immunity that I know anything about works. If you think you have immunity from suit or prosecution, you file your motion to dismiss and then go into court and prove that you have the immunity.

Recently the Florida Supreme Court ruled that Stand Your Ground (SYG) immunity is exactly like every other form of immunity. If you want to claim the immunity, you have to prove that you are entitled to it. Now the NRA (of which I happen to be a member of long standing) thinks this is terrible. I think that on this particular subject the NRA is absolutely, positively, 100% out to lunch.
What the NRA wants is to make SYG immunity different from every other kind of immunity. What the NRA wants to do is to make the prosecution prove its case twice in order to get a conviction. Prove the case beyond a reasonable doubt (BRD) before a judge and then prove it BRD before a jury. It’s hard enough to prove a case BRD once, much less twice.

What happens if a defendant cannot prove by a preponderance of the evidence (POE) that he acted in self-defense? The state still has to go to trial before a jury and prove BRD that he did not act in self-defense. There is nothing terrible about having two shots at getting acquitted, even if you have the relatively light POE burden of proof on the first shot.
What is it that privileges someone who says “I have immunity because I shot someone in self-defense” over someone who says “I have immunity because I’ve already been prosecuted for this crime,” or “I have immunity because I was granted transactional immunity in return for testifying in a case,” or “I have immunity because [insert reason here]”? The Florida Supreme Court says nothing privileges SYG immunity over any other. The NRA says it should be privileged over any other form of immunity. The NRA is dead wrong. Here’s hoping that our state legislature has the good judgment to tell the NRA that the Supreme Court is right.

[1] We didn't have to go to a hearing on the case. When I showed the prosecutor the certified copy of the not guilty verdict, he dropped the charges.