An NRA-backed proposal to shift the burden of proof in “Stand Your Ground” cases appears to be on the fast-track for approval in the Florida House, echoing similar recent endorsements in the Senate — and with continued vehement opposition from state prosecutors and gun-control advocates.
After the proposal abruptly failed on a deadlocked vote in the same Florida House committee last session, members of the Republican-heavy Criminal Justice Subcommittee voted 9-4, along party lines, on Wednesday to advance the legislation (HB 245). It faces only one more committee hearing before it could reach the floor.
An identical measure in the Florida Senate (SB 128) quickly cleared its two committees — despite similar concerns raised — and became the first bill from either chamber that was sent to the floor for the 2017 session, which begins March 7.
Through the legislation, conservative Republicans want to require state attorneys to prove in a preliminary hearing and beyond a reasonable doubt — a trial-level standard — why a criminal defendant should not get immunity from prosecution under Florida’s “Stand Your Ground” law. That law allows individuals to use deadly force in self-defense — with no obligation to retreat or flee.
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That has never, ever been done in the state of Florida’s history. It’s never been required anywhere in this country.
Phil Archer, a state attorney and executive board member of the Florida Prosecuting Attorneys Association
Current judicial practice is to have criminal defendants prove at a pretrial hearing why they deserve the immunity.
The Florida Supreme Court held up this procedure in a 2015 ruling, but advocates for the bill — including the gun lobby and Florida’s public defenders — say it is unfair to defendants and contradicts what the Legislature wanted in enacting “Stand Your Ground” 12 years ago.
“This levels the playing field between the government and the citizen,” said Bob Dillinger, the public defender in Pinellas and Pasco counties, who spoke on behalf of the Florida Public Defender Association.
“Anytime the state charges you with a crime, they have the burden of proof — all the way from arrest through trial,” agreed Marion Hammer, the National Rifle Association’s Tallahassee lobbyist.
But prosecutors warn the proposal will create an unheard-of standard and not only make it harder for them to prosecute “Stand Your Ground” cases but they would be forced to try the case twice, once before trial and again at the trial itself.
“That has never, ever been done in the state of Florida’s history. It’s never been required anywhere in this country,” said Phil Archer, the state attorney in Brevard and Seminole counties and an executive board member of the Florida Prosecuting Attorneys Association.
Anytime the state charges you with a crime, they have the burden of proof — all the way from arrest through trial.
Marion Hammer, the NRA’s Tallahassee lobbyist
House Democrats on Wednesday aimed their criticism at how the legislation would create an exception for “Stand Your Ground” cases that wouldn’t be afforded to other “affirmative defenses,” which need to be proven by the defendant.
“So we’re taking what is now an affirmative defense — which usually has to be asserted — and we’re making it automatic, and the prosecution has to un-prove an affirmative defense?” asked Rep. Jared Moskowitz, D-Coral Springs.
“Yes,” replied the bill sponsor, Rep. Bobby Payne, R-Palatka, although he could not offer examples of other “affirmative defenses” treated like that.
An analysis has not been done to determine the fiscal impact of the legislation, and it won’t be vetted by any appropriations committee in either chamber.
Yet prosecutors warn the proposal would increase their workload exponentially, because “Stand Your Ground” defenses would then be claimed in “thousands and thousands” of cases whenever use of force is involved. That’s not just gun-related crimes but also “any kind of fistfight, every battery case, every domestic violence case, a verbal threat or when someone gets arrested for assault,” Archer said.
“If you flip this burden of proof, there will be zero risk to those defendants” to assert a “Stand Your Ground” defense, he said.
“This is not a vote about some of the hyperbolic things we’ve heard today,” Rep. James Grant, R-Tampa, said. “This is a simple question of: Do you believe in due process? Do you think it should be harder to lock people up, or easier?”