Florida Politics

Bill seeks to turn ‘Stand Your Ground’ around, shift initial burden of proof

State Sen. Rob Bradley, R-Fleming Island, addresses the Senate Judiciary Committee on Jan. 24, 2017 about his renewed proposal to change Florida’s Stand Your Ground law so that defendants would no longer be required to prove why they deserve immunity from prosecution. Instead, prosecutors would have to prove “beyond a reasonable doubt” before trial why defendants cannot claim immunity.
State Sen. Rob Bradley, R-Fleming Island, addresses the Senate Judiciary Committee on Jan. 24, 2017 about his renewed proposal to change Florida’s Stand Your Ground law so that defendants would no longer be required to prove why they deserve immunity from prosecution. Instead, prosecutors would have to prove “beyond a reasonable doubt” before trial why defendants cannot claim immunity. Florida Channel

An effort by conservative Republican lawmakers to revise Florida’s Stand Your Ground law is back under consideration with a viable chance at passing this year, even as opponents again warn that enacting such changes would “water down” Florida’s gun laws and make it easier for people to kill without consequence.

For the second year in a row, Fleming Island Republican Sen. Rob Bradley is proposing to alter the legal procedure for how a criminal defendant seeks immunity from prosecution under Florida’s controversial 2005 law.

Stand Your Ground allows individuals to use deadly force in self-defense — with no obligation to retreat or flee. Current practice, supported by the Florida Supreme Court, requires defendants to prove before trial why they’re entitled to such immunity.

But Bradley’s proposal (SB 128) would shift the burden of proof at that pre-trial hearing so that instead, the prosecutor would need to prove before trial “beyond a reasonable doubt” why a defendant couldn’t claim they lawfully stood their ground.

There’s no public outcry for the change; it’s driven out of principle, Bradley told the Senate Judiciary Committee on Tuesday during his bill’s first vetting of the 2017 session.

If I believed that an individual who was otherwise guilty would go free because this bill passed then I wouldn’t have filed the bill.

Sen. Rob Bradley, R-Fleming Island

His proposal, first sought last year, is in response to a 2015 Florida Supreme Court ruling in which five of seven justices said defendants who want to claim Stand Your Ground should prove why they should get immunity. Bradley objected to that ruling as judicial “overreach.”

“I filed this bill because I think think it’s the right thing to do, because I believe in some simple principles that should be guiding in our criminal justice system: That you are innocent until proven guilty and that the government should carry the burden of proof throughout a criminal prosecution,” said Bradley, a former criminal prosecutor in Clay and Duval counties.

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As it did last year, Bradley’s proposal drew immediate backlash from prosecutors and opponents of Stand Your Ground who fear the changes could flood the courts and make it easier for criminals to go unpunished. The plan also raises among critics renewed constitutional questions of double jeopardy in that requiring a burden of proof of “beyond a reasonable doubt” would essentially force prosecutors to try a case twice, once before trial and then at trial itself.

Bradley — with support from public defenders, the NRA and Florida Carry — rejected the criticism, arguing that he wants to make sure the right of self defense is “fully realized under Florida law.”

“If I believed that an individual who was otherwise guilty would go free because this bill passed then I wouldn’t have filed the bill,” Bradley said.

Public defenders believe the bill will “help us do our job in defending our clients’ rights and prevent unjust convictions,” said Stacy Scott, public defender for the Eighth Judicial Circuit in north-central Florida, who spoke on behalf of the Florida Public Defender Association.

I would love to have this in my arsenal of tools I would use as I defend my clients, but that doesn’t make it right. ... It’s bad for the state of Florida.

Sen. Perry Thurston Jr., D-Fort Lauderdale

But Phil Archer, the state attorney in Brevard and Seminole counties, predicted that the number of cases in which defendants claim Stand Your Ground would grow exponentially if Bradley’s bill was enacted, because defense attorneys would eagerly take advantage of the expanded law.

“The impact of this will be huge,” Archer said. “If you are going to hurt someone, if you are going to kill someone, the least we can require is that at a preliminary hearing that you carry the burden of telling us why.”

Fort Lauderdale Democratic Sen. Perry Thurston Jr., himself a criminal defense attorney, agreed.

“Any quality lawyer is going to utilize this procedure,” Thurston said. “I would love to have this in my arsenal of tools I would use as I defend my clients, but that doesn’t make it right. … It’s bad for the state of Florida.”

Donning bright red shirts, more than a dozen supporters of Moms Demand Action for Gun Sense in America attended Tuesday’s hearing to urge lawmakers to reject Bradley’s plan.

“It’s a grave insult to families like me who’ve lost loved ones to these same kinds of cases under Stand Your Ground,” said advocacy group spokeswoman Lucy McBath, whose 17-year-old son, Jordan Davis, was shot and killed at a Jacksonville gas station in 2012.

Bradley’s bill easily passed the Judiciary Committee on Tuesday by a 5-4 vote along party lines with Republicans in favor.

With an endorsement from Senate President Joe Negron, R-Stuart, the measure is on an easy path for a Senate floor vote when the 2017 session begins in March. Only one other committee, Rules, is set to vet it. (Typically bills are assigned to be reviewed by three committees.)

“This is a fundamental American right guaranteed by our Constitution. A defendant always has the presumption of innocence and the state always has a burden of proof,” Negron said in a statement Tuesday, applauding the Judiciary Committee’s vote.

The proposed change to Stand Your Ground was hotly debated in the 2016 session. The House version was abruptly killed in its first committee when lawmakers deadlocked, but Bradley’s version in the Senate ultimately earned Senate approval after a compromise was struck.

However, Bradley’s bill for the 2017 session lacks that same compromise. It would have subjected prosecutors to a lesser burden of proof in the pretrial hearing: “clear and convincing evidence” rather than “beyond a reasonable doubt,” which is the same standard of proof necessary at trial.

A companion bill for 2017 was filed in the House by freshmen Republican Reps. Bobby Payne of Palatka and Jason Fischer of Jacksonville, with support from 22 Republican co-sponsors. HB 245 has not been assigned to committees yet for review.

Kristen M. Clark: 850-222-3095, kclark@miamiherald.com, @ByKristenMClark

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