This could be the year the Republican-led Florida Legislature succeeds in enacting a controversial change to the state’s “Stand Your Ground” law that prosecutors warn could lead to a flood of self-defense claims and would force state attorneys to essentially try cases twice.
For the second consecutive session, Florida senators on Wednesday approved a bill (SB 128) from Fleming Island Republican Sen. Rob Bradley to shift the burden of proof — from the defendant to the prosecutor — during the pretrial phase of “Stand Your Ground” cases.
The Senate measure was approved on Wednesday in a 23-15 vote, mostly along party lines and drawing praise from Senate President Joe Negron, R-Stuart.
“If a prosecutor doesn’t have the evidence to prevail at this immunity hearing … the prosecutor does not have sufficient evidence to win at trial,” said Bradley, himself a former prosecutor. “Innocent people will not go free as a result of this bill; this bill isn’t about creating loopholes.”
We respect the sovereignty of individuals against the awesome power of the government.
Sen. Rob Bradley, R-Fleming Island
Now it’s up to the House to finish considering its bill (HB 245), which has already passed the milestone of clearing the same committee that abruptly killed it before the 2016 session began. It faces only one more hearing — a signal it’s marked as a priority for House Speaker Richard Corcoran, R-Land O’Lakes.
In Wednesday’s Senate vote, Miami Republican Sen. Anitere Flores — Negron’s No. 2 in the chamber — broke party ranks and voted with 14 Democrats in opposition, even though she previously approved the bill twice in committee earlier this year.
Flores told reporters that since the bill’s last hearing five weeks ago, she’d “received a lot of concerns, particularly from the state attorneys both in Miami-Dade and Monroe counties [about] the cost that is associated with it.” (Flores’ new Democratic-leaning district spans parts of Miami-Dade and all of Monroe.)
Florida’s “Stand Your Ground” law allows individuals to use deadly force in self-defense — with no obligation to retreat or flee.
Several Democrats said they worry about the potential consequences of Bradley’s bill — particularly arguing it removes any risk for defendants to assert they legally stood their ground when accused of a violent crime. Forcing prosecutors to prove otherwise, both before trial and again at trial, would put more work on already-strapped and under-funded state attorneys’ offices, they argue.
Currently, defendants who claim “Stand Your Ground” have to prove before trial why they’re entitled to immunity from prosecution under the 2005 law, which allows individuals to use deadly force in self-defense — with no obligation to retreat or flee.
If prosecutors now had that burden in the pretrial phase, “why would they [defendants] not just raise a defense, sit back and watch the prosecution put on most of the trial — with the highest standard of proof — and see how it goes? Why wouldn’t they do that in every single case?” said Sen. José Javier Rodríguez, D-Miami.
If the bill was already law, for example: In the recent high-profile case of former Tampa police captain Curtis Reeves, rather than requesting immunity from prosecution for allegedly killing Chad Oulson at a movie theater, Reeves wouldn’t have had the pressure to explain himself before trial.
Rather, by Reeves asserting “Stand Your Ground,” Hillsborough County state attorneys would have had to show evidence “beyond a reasonable doubt” — the same standard required at trial — of why Reeves should still be prosecuted. As it happens now, a judge — not a jury — would decide whether the case advances to trial.
Broward County Democratic Sen. Gary Farmer, of Lighthouse Point, said the bill puts prosecutors “in the position of having to prove a negative. That’s a very difficult proposition regardless of the issue.”
“When you add to that, in order to prove that negative, a prosecutor needs witnesses,” Farmer said, “this bill has unintended consequences of incentivizing shoot-to-kill. Dead men tell no tales.”
Proponents of the measure, including the NRA’s Tallahassee lobbyist, Marion Hammer, argue that the bill simply clarifies what lawmakers intended when they adopted “Stand Your Ground” 12 years ago.
This bill has unintended consequences of incentivizing shoot-to-kill. Dead men tell no tales.
Sen. Gary Farmer, D-Lighthouse Point
Hammer has said the prosecution was always supposed to have the burden of proof before trial. She blames “anti-gun” prosecutors and judges for creating the current framework requiring defendants to justify their immunity — a process the Florida Supreme Court ruled in 2015 was legal and appropriate.
Bradley and fellow conservative lawmakers disagree with the justices’ majority opinion and have cited the dissent from two conservative justices in advocating for his bill.
“This bill represents our best traditions of who we are as a society that respects the rule of law,” Bradley said. “We respect the sovereignty of individuals against the awesome power of the government.”
However, the Florida State Conference of NAACP Branches called the bill “unnecessary additions to existing law that shield killers from prosecution for their crimes.”
“Shifting the burden of proof to prosecutors increases the potential of denying justice to victims and their families,” Adora Obi Nweze, the conference’s president, said in a statement. “These laws are often applied in a racially biased manner, they do not deter crime, and the bottom line is that they make it easier for people to murder other human beings and not face any legal consequence.”
This year’s measure is more extreme than last session’s proposal and lacks a compromise that Bradley said was necessary to pass it a year ago.
The version of the bill that passed the Senate in 2016 would have still shifted the burden to prosecutors, but they would have been subjected to a less rigorous standard — “clear and convincing evidence.” (By comparison, both that standard and the highest standard of “beyond a reasonable doubt” are more than what defendants face now when having to show why they should get immunity. They are held to the lowest standard, by a “preponderance of evidence,” equivalent to a bare-minimum majority.)
Bradley had wanted the “beyond a reasonable doubt” standard last year, too, but he didn’t have the votes. This year, half of the 40-member chamber is new, and a compromise wasn’t crucial; Democrats’ efforts last week to lower the standard of proof required of prosecutors were rejected by the Republican majority.
“I feel much more confident this year than last year,” Bradley said last week.