Florida House and Senate In Duel Over Shifting Stand Your Ground Burden to Prosecution

The House and Senate are in a stand-off, for now, about a controversial bill dealing with “stand your ground” self-defense cases.

The two chambers have approved different versions of a proposal (SB 128) intended to shift a key burden of proof in “stand your ground” cases from defendants to prosecutors in pre-trial hearings.

As the bill returns to the Senate after the House approved its version this week, House and Senate leaders are maintaining support for their different positions.

The House wants to require prosecutors in “stand your ground” cases to overcome the asserted immunity sought by defendants through “clear and convincing evidence.” The Senate, which rejected the “clear and convincing evidence” language earlier this session, has set a higher standard known as “beyond a reasonable doubt.”

“I’ve said from the beginning, if the government wants to convict you of a serious crime and send you to prison, they should have the burden of proof at every stage of the proceeding beyond and to the exclusion of every reasonable doubt,” Senate President Joe Negron, R-Stuart, told reporters on Thursday. “It’s the highest legal standard in the world. It’s served us well. And in order for the government to prevail in the underlying criminal case they’re going to have to prove beyond and to the exclusion of every reasonable doubt. So I prefer the Senate’s higher legal standard.”

When asked if the House language could kill the bill, Negron, an attorney, replied, “It’s only week five (of the legislative session). I assume they’ll send the bill back to us, and it will be up to the senators on what they want to do. My preference would be that we stand on the beyond-a-reasonable-doubt criminal standard.”

The 60-day regular session is scheduled to end May 5.

The overall proposal, backed by groups such as the National Rifle Association and the Florida Public Defender Association, stems from a Florida Supreme Court ruling in 2015 that said defendants have the burden of proof to show they should be shielded from prosecution under the “stand your ground” law.

House sponsor Bobby Payne, R-Palatka, told reporters Thursday the clear-and-convincing-evidence threshold was a “reasonable and fair place to land” after hearing from numerous groups regarding how the 2005 law should be interpreted.

“We need to consider the opportunity for encouraging victims to come forward in those particular situations,” Payne replied when asked why he supported the “clear and convincing” language.

On Wednesday, before the House voted along party lines to support the bill, Rep. James Grant, a Tampa Republican who is an attorney, also defended the House clear-and-convincing-evidence approach.

“If the government cannot beat the lesser, easier burden in an immunity trial, then they darned sure can’t meet beyond and to the exclusion of each and every reasonable doubt when they ask for a conviction,” Grant said.

The Senate voted 23-15 to approve its version of the bill on March 15.

The “stand your ground” law has long been controversial. It says people can use deadly force and do not have a duty to retreat if they think it is necessary to prevent death or great bodily harm.

In its 2015 ruling, the Supreme Court majority opinion — written by Justice Barbara Pariente — said immunity in the “stand your ground” law “is not a blanket immunity, but rather, requires the establishment that the use of force was legally justified.”

But a dissenting opinion, written by Justice Charles Canady and now highlighted by Republican lawmakers, countered that the majority ruling “substantially curtails the benefit of the immunity from trial conferred by the Legislature under the Stand Your Ground law.”

“The factual question raised by the assertion of Stand Your Ground immunity in a pretrial evidentiary hearing is the same as the factual question raised by a Stand Your Ground defense presented at trial: whether the evidence establishes beyond a reasonable doubt that the defendant’s conduct was not justified under the governing statutory standard,” Canady wrote.

The proposed change has been opposed by Democratic lawmakers and groups such as the Florida Prosecuting Attorneys Association and the Florida Coalition Against Domestic Violence, who have argued it would put an end to cases before all the facts are revealed. They also contend the “stand your ground” law has disproportionate effects on minorities, as it is used more successfully as a defense when white shooters kill African-Americans.

–Jim Turner, News Service of Florida