Maybe it's a terminology issue. Stand Your Ground provides immunity. It can be raised at a jury trial just like traditional self defense, even after a judge denies a pre-trial motion to dismiss the case. But it is still an immunity statute while self-defense is merely an affirmative defense. It's really not worth debating since the effect is the same: A jury instructed on SYG is told if SYG applies, the defendant must be found not guilty. A jury instructed on self-defense is told if the state hasn't disproved self-defense, the jury must find the defendant not guilty. Every case I've seen and the legislature itself refers to SYG as an immunity statute, not an affirmative defense. If SYG applies, the defendant did not commit a crime (because his acts were immune from prosecution) and he is not guilty. If self-defense applies, the defendant is not guilty because his conduct was justifiable. The result in either case is a verdict of not guilty. It's a distinction without much difference when it gets to a jury. But it doesn't change the character of SYG which is that it is an immunity statute.
See, Reagan v. Mallory, 429 Fed. Appx. 918, 920-921 (11th Cir. Fla. 2011):
By defining "criminal prosecution" to include the arrest, detention, charging, or prosecution of the defendant, the statute allows for an immunity determination at any stage of the proceeding. Created to eliminate the need to retreat under specified circumstances, the statute authorized the immunity determination to be made by law enforcement officers, prosecutors, judges, and juries. In enacting the statute, however, the legislature did not restrict the time frame for determining immunity, but rather provided a time continuum stretching across the entire criminal process."
See State v. Horn:
Section 776.032(1) authorizes a person to use force in defense in certain situations. The justifiable use of that force is declared "immune from criminal prosecution." Id. In turn, the legislature broadly defined the term "criminal prosecution" to include "arresting, detaining in custody, and charging or prosecuting the defendant."
State v. Peterson;
The wording selected by our Legislature makes clear that [it] intended to establish a true immunity and not merely an affirmative defense. In particular, in the preamble to the substantive legislation, the session law notes, "[T]he Legislature finds 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." Ch. 2005-27, at 200, Laws of Fla.
Also see the Yaquibe case
: the court on a SYG motion can only decide the facts. It can't determine intent for purposes of second-degree murder if intent is disputed. But if a jury finds SYG applies, the defendant would be not guilty of second degree murder. If intent is an issue, the judge has to leave it for the jury. So again, SYG could go to the jury.
The jury instruction for self-defense (justifiable use of force) is 3.6, available here
. The jury instruction for SYG reads:
No duty to retreat. ß 776.013(3), Fla. Stat. See Novak v. State 974 So. 2d 520 [*644] (Fla. 4th DCA 2008) regarding unlawful activity. There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification.
If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.
Define applicable forcible felony from list in ß776.08, Fla. Stat. that defendant alleges victim was about to commit.
All Judge Hirsch is saying is that if he denies a defendant's motion for stand your ground immunity before trial, the defendant can still raise it at trial if he produces some evidence to support it, and the jury will decide if it applies. The jury won't be told the judge ruled differently on his motion before trial.
I'm not saying anything different than anything else I've read elsewhere. I think it's just a terminology issue we are disagreeing on, but the effect is the same: The defendant can raise and the jury can determine Stand Your Ground just like it can traditional self defense. One is an immunity statute and one is an affirmative defense. In both cases, the jury is told to acquit if the factors for either are met.
On the civil case immunity issue, I said it's not relevant in the context of
the discussion of the criminal rules an case we were having. The issue of civil immunity is unlikely to come up in the criminal case, and I'm only discussing the criminal case. To me, the civil issues are a distraction, sorry.
On a related note, a few weeks ago a new decision came down that I just found that says a defendant can appeal a pre-trial denial of STG immunity through a writ of prohibition. If the writ is denied , then the issue is res judicata if he loses at trial and appeals. Rice v. State, 2012 Fla. App. LEXIS 10033.
A more productive conversation might be whether O"mara would appeal a denial of STG before trial and seek a writ of prohibition. I think the bond decision may be important there. O"Mara is unlikely to make George sit in jail another year for an appeal before trial, but if he's on bond, why not?
Iím done with this for now. I donít understand your point, and I gather you donít get mine.