Criminal defendants in Florida who are charged with a wide array of violent acts — including murder, assault and domestic violence — could soon have an easier go at claiming they were justified to act in self-defense, legally stood their ground and don’t deserve to be prosecuted.
After failing to pass a single committee in the House last session, a controversial NRA-backed proposal that would shift the burden of proof to prosecutors during pretrial hearings for “Stand Your Ground” cases is on the verge of becoming law this spring.
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Despite vehement objections from state attorneys, gun-control advocates and the entire Democratic caucus, the Republican-led Florida House on Wednesday passed SB 128 — on a 74-39 party-line vote — after representatives made changes from the version the Senate approved last month.
Flipping the burden of proof will do nothing more than increase the carnage that has been inflicted on our communities.
Rep. Bobby DuBose, D-Fort Lauderdale
Floor debate lasted for nearly 90 minutes, as several Democrats spoke at length to warn of increased violence and other “irreversible and even deadly” consequences they say the legislation will cause.
“Flipping the burden of proof will do nothing more than increase the carnage that has been inflicted on our communities,” Fort Lauderdale Democratic Rep. Bobby DuBose said, noting studies have linked Florida’s 2005 “Stand Your Ground” law with increases in homicides, including gun-related homicides.
Both chambers have to pass identical bills before a law can be sent to the governor to be signed, so the Legislature must now find agreement on a procedural — but significant — distinction between the House and Senate versions: To what legal standard prosecutors will be held in having to prove why defendants cannot claim immunity from prosecution.
By shifting the burden of proof, the House and Senate proposals would both require state attorneys to prove — before trial — why a defendant cannot claim a “Stand Your Ground” defense. The law allows individuals to use deadly force in self-defense, with no obligation to retreat or flee.
Under current court procedures — supported by a 2015 ruling of the Florida Supreme Court — defendants have to demonstrate why they should be entitled to immunity.
Conservative lawmakers and the influential gun-lobby disagree with that court decision, criticizing it as “judicial overreach.” They argue the 2005 law was intended to grant full immunity to defendants in use-of-force cases and that prosecutors were always supposed to have the burden of proof.
“This is not about violence; this is not about guns … This about the rule of law and the protection our Constitution has guaranteed us,” Rep. Gayle Harrell, R-Stuart, said. She accused justices of having “legislated from the bench.”
“We got a problem with the courts, so what we’re going to do is make it easier ... to shoot somebody, kill them and then claim immunity,” said Rep. Wengay Newton, a black Democrat from St. Petersburg. He added: “If you do this with your eyes wide open, a lot more people will die. A lot more people who look like me will die. … Knowing that they have self-defense immunity, they’re going to pull the trigger.”
Prosecutors have told lawmakers for almost a year and a half that shifting the burden to them would increase their workloads — costing potentially millions in taxpayer dollars their offices don’t have — and would force them to essentially try use-of-force cases twice, first in advance of trial in front of a judge and then again at trial before a jury.
Opponents also say the change could make it harder for victims to get justice.
“It’s absolutely heartbreaking,” Michelle Gajda, volunteer state chapter leader for Moms Demand Action for Gun Sense in America, said of the House vote. “This bill is dangerous, it is irresponsible ... and it’s shameful that our lawmakers are choosing to overlook the practical implications of this bill.”
This is not about violence; this is not about guns… This about the rule of law and the protection our Constitution has guaranteed us.
Rep. Gayle Harrell, R-Stuart
Where the House and Senate differ in their approved versions of SB 128 is that the Senate wants to hold prosecutors to the standard of “beyond a reasonable doubt,” the highest standard and the one that is required at trial.
House members don’t want to go that far.
Their bill, sponsored by Palatka Republican Bobby Payne, puts the standard at “clear and convincing evidence” — a lesser standard. Their bill also would require defendants to make, at least, a basic claim that they legally stood their ground. (By comparison, defendants currently are held to the lowest standard — “preponderance of evidence,” equivalent to a bare-minimum majority — when having to show why they should get immunity.)
“This is a very reasonable compromise,” Rep. Paul Renner, R-Palm Coast, said.
The version of the bill that passed the Senate in 2016 had the standard of “clear and convincing evidence,” which Senate sponsor Rob Bradley, R-Fleming Island, said was necessary to pass the bill that year. He didn’t need that compromise this year to win chamber approval.
But it’s unclear yet whether Bradley and Senate leadership will accept the House’s change. “The Senate’s position on this legislation was reflected in the bill that was passed, and we look forward to talking to our friends in the House on this,” Bradley told the Herald/Times on Wednesday.
Senators will likely decide their course of action next week. They could choose to either make further changes or accept the House’s language, which would send the bill to Gov. Rick Scott’s desk.
If the bill makes it to Scott’s desk, Gajda said Moms Demand Action plans to launch a veto campaign. “We are hopeful that Governor Scott will do the right thing and veto this legislation,” she said.