Beyond Stand Your Ground: The need for immunity in other Second Amendment-related cases

Florida’s Stand Your Ground statute and similar laws in other states can offer immunity from prosecution when someone uses deadly force to defend themselves, and affords them quick access to an appellate review if the case doesn’t go their way.

In other words, if a defendant involved in a defensive shooting invokes a Stand-Your-Ground defense, their case can be dismissed before a trial even begins if it is proven they are entitled to statutory immunity, or appellate judges can be brought in quickly to make sure the case gets handled correctly.

When a defendant files a Stand Your Ground motion, their case is put on hold. Prosecution is halted. The trial court must hold a “Stand Your Ground” hearing – a sort of mini trial – to determine whether the defendant’s use of force meets the standards for Stand Your Ground immunity. At this point, the burden shifts to the prosecutors, who must then prove by “clear and convincing evidence” why the defendant is not entitled to immunity from prosecution.

After this mini trial, the judge can either dismiss the charges or allow the case to go forward. However, if the charges are not dismissed, the defendant can file a Writ of Prohibition, which quickly bumps the case up to an appellate court for review. This writ can save the time it normally takes to get to the appellate level – usually as much as 18-months to two years – because it allows the defendant to forego a jury trial, sentencing and other delays and present their case directly to the appellate judges, who can affirm or deny their writ.

Stand Your Ground was created to protect people from unjust, malicious or politically motivated prosecutions after they acted in self-defense. By shifting the burden of proof to the state and by making an appeal quick and easy, the law has become a powerful tool, which some believe should be expanded to include other statutes involving Second Amendment rights.

“We need a Second Amendment immunity defense for anything involving the lawful possession of a firearm,” said former Florida prosecutor Lisa Chittaro. “It should mirror Stand Your Ground statutes, but it needs to be broader. It should allow defense attorneys to ask the court to find immunity under the protections of the Second Amendment quickly and efficiently and if they don’t, it should provide a quick route to the appellate level without having to go through the entire court process, which can take years.”

Chittaro pointed to several types of criminal cases that should be covered by Second Amendment immunity. Most involve arrests stemming from gun-free zones, such as schools, sporting events and airports. Many of them lack knowledge – a major factor in a criminal case – much less actual intent to commit a crime.

“If a parent picks up their child from school and they forgot their firearm and someone sees it and complains, they should be covered by Second Amendment immunity,” she said. “The same goes for other gun-free-zone prosecutions where there was no knowledge or intent.”

The problem with most of the prosecutions resulting from arrests in prohibited places, is that police and prosecutors often forget that Americans have a constitutional right to keep and bear arms. A trial judge and/or appellate court should review these cases to determine specifically if it involved this constitutionally protected right, or if the defendant knowingly and with intent committed a crime. Besides, in many states, the list of prohibited places grows every time their legislature meets. This is lawfare – pure and simple.

Every prosecution stemming from an arrest in a prohibited place should begin with an acknowledgement of the defendant’s Second Amendment rights, especially since gun-free zones infringe upon these rights. If a case involves absentmindedness, and not knowledge or the specific intent to commit a crime, judges need to toss them out. It is, after all, what the Framers had in mind when they wrote the Second Amendment.