The story is a familiar one by now: A retired Tampa police captain asked a fellow moviegoer to shut off his phone. Popcorn flew. The ex-cop pulled a gun.
Curtis Reeves, 74, claimed it was self-defense in 2014 when he killed Chad Oulson in a Pasco County movie theater. But he couldn’t prove it to a judge earlier this year.
The Florida House of Representatives passed a bill Wednesday making it less difficult for people like Reeves to make such claims using the state’s “Stand Your Ground” law. The burden, instead, would be on prosecutors to prove that a criminal case should proceed if a person accused of violence against someone else claims they acted in self-defense.
The bill must go to the Senate for final approval. Senators passed a similar proposal last month, but the two chambers must agree on the exact language.
Reeves’ attorney, Richard Escobar, is among those who believe the change is a good idea.
“We’re talking about people’s lives,” Escobar said. “As far as I’m concerned, it’s not much of a burden for the prosecution to prove it wasn’t self-defense if it wasn’t.”
The 2005 “Stand Your Ground” law says a person has no duty to retreat and can use deadly force if in fear of death or great bodily harm when faced with a violent confrontation.
Under the current law, if defense attorneys invoke “Stand Your Ground” in a criminal case, the burden is on them to prove by a preponderance of evidence that the defendant acted in self-defense and is therefore immune from prosecution. That means the evidence must show the defendant is more likely than not (or more than 50 percent likely) to be entitled to immunity.
In addition to putting the burden on prosecutors, both bills also aim, in varying degrees, to raise the standard of proof required. That is their primary distinction.
The House bill (HB 245) would require the prosecution to prove by “clear and convincing evidence” that the defendant did not act in self-defense. That’s a slightly greater standard of proof than a preponderance of evidence.
The Senate bill (SB 128) goes even further, requiring that the prosecution make its case with a standard that is “beyond a reasonable doubt.” That’s the same standard used in criminal trials, in which the state has to prove with near certainty that a person is guilty.
“I think the biggest fear is, we’d end up having to try our cases twice,” said Pinellas-Pasco State Attorney Bernie McCabe, whose office is prosecuting the Reeves case. “Once before a judge, and once before a jury.”
If this were already the law, the Reeves case would have looked different. The defense would have taken a more typical trial posture designed to cast doubt on the state’s case.
“It would have been a much higher burden and a much more difficult burden for the prosecution to meet,” Escobar said. “But I think it would have been the correct burden.”
Not everyone agrees.
In a recent opinion piece published in the Tampa Bay Times, Hillsborough State Attorney Andrew Warren decried the proposed changes as dangerous and costly.
“The proposed legislation fundamentally changes our jury system by requiring, for the first time in Florida legal history, that state prosecutors would have to disprove a legal defense to even begin prosecuting a case,” he wrote. “The proposals quickly moving through this year’s legislative process threaten public safety and undermine the fair and equal criminal justice system that our community deserves.”
He noted that the Senate bill in particular would spark an increase in self-defense claims, which would require more judges and more lawyers to sort through the legalities.
David LaBahn, the president and chief executive officer of the Association of Prosecuting Attorneys, a national think tank, said the proposed changes would make it extremely difficult for prosecutors to prove their cases.
“When you shift the burden, you make it almost impossible for the prosecution to overcome that burden because we don’t have access to the accused,” LaBahn said.
The “Stand Your Ground” law is based on a subjective standard about what would be reasonable for the defendant to do in a given situation, given the circumstances and his or her life experience.
“How can we prove what’s in that individual’s mind?” LaBahn said.
McCabe noted that the “Stand Your Ground” law goes beyond being simply an affirmative defense, in which a defendant admits what would otherwise be unlawful conduct, but offers evidence to justify it.
“This is in my view, an aberration,” McCabe said. “What the legislature has done, with the original ‘Stand Your Ground’ law, and the new one, is say this is not an affirmative defense, it’s a grant of immunity. And that’s kind of new ground for all of us.”
Had the burden been on the prosecution in the Reeves case, McCabe said he thinks the result would be the same.
Pinellas-Pasco Circuit Judge Susan Barthle ultimately rejected the defense’s arguments. Reeves remains accused of second-degree murder.
“I’m confident we would have prevailed again,” McCabe said. “It would not have changed the outcome.”
Reeves’ attorneys are in the process of preparing an appeal of Judge Barthle’s order. If the appeal is denied, the case will continue toward trial.
Tampa Bay Times staff writer Josh Solomon contributed to this report.
Contact Dan Sullivan at firstname.lastname@example.org or (813) 226-3386. Follow @TimesDan.