TALLAHASSEE — 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 — in the pretrial phase of "stand your ground" cases.
The Senate voted 23-15 on Wednesday, 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."
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," Pasco 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 happens now, a judge — not a jury — would decide whether the case advanced to trial.
Now it's up to the House to finish considering its bill (HB 245), which 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 of 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 this year.
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 underfunded state attorneys' offices, they argue.
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 the bill simply clarifies what lawmakers intended when they adopted "stand your ground" 12 years ago.
Hammer has said the prosecution was always supposed to have the burden of proof before trial. She blames "antigun" 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.
Contact Kristen M. Clark at email@example.com. Follow @ByKristenMClark