Killed in House, Stand Your Ground Bill That Shifts Burden of Proof Lives Again in Senate

After stalling in the House, a proposal that would shift the burden of proof to the state in cases involving Florida’s controversial “stand your ground” law is poised to go to the full Senate.

The Senate Rules Committee on Thursday unanimously passed the measure (SB 344), filed by Sen. Rob Bradley, R-Fleming Island, after adopting several amendments.

The “stand your ground” law 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.

Bradley filed the bill after the Florida Supreme Court ruled in July that people who use the defense have the burden of showing they should be shielded from prosecution. In “stand your ground” cases, pre-trial evidentiary hearings are held to determine whether defendants are immune from prosecution.

Bradley’s measure would place the burden of proof on prosecutors in the evidentiary hearings and would apply retroactively to pending cases.

“Recently the Florida Supreme Court in its decision in ‘Bretherick v. State,’ in my estimation, misinterpreted legislative intent,” he told the committee. “This bill is remedial and is intended to correct the procedure that the courts have been using for self-defense hearings.”

The bill’s easy passage through the Rules Committee keeps alive the issue after it appeared to die in the House last month.

The House version of the bill (HB 169), filed by Rep. Dennis Baxley, R- Ocala, failed on a tie vote in the House Criminal Justice Subcommittee.

Bradley has maintained that the Senate would keep the measure alive. The 2016 legislative session starts Jan. 12.

“The intention and hope right now is that we deal with this bill on the Senate floor in the first or second week of session, send it over in messages to the House — and would like to see the House speaker take it up in the form that it’s sent over there,” he told reporters after the vote.

The measure heading for the floor includes several amendments by Rules Chairman David Simmons, an Altamonte Springs Republican who noted that he’d helped author the original “stand your ground” law in 2005 and was well aware of lawmakers’ intentions in passing it.

One of his amendments, for example, would require prosecutors to provide “clear and convincing evidence” that the defendant should not be immune under the “stand your ground” law.

“Just to be clear: We are going from (a legal standard of) ‘beyond a reasonable doubt’ to ‘clear and convincing’ (evidence) with this amendment, with that burden being on the prosecution?” asked Sen. Darren Soto, D-Orlando.

“That is correct,” Simmons said.

Sen. Joe Negron, a Stuart Republican who is slated to become Senate president in November 2016, said he would vote for the amendment, but was uncomfortable with the burden of proof being a lesser standard than “beyond a reasonable doubt.”

“I think that’s a core principle,” Negron said. “I don’t care what the proceeding is. I don’t care if it’s a traffic ticket.”

Another amendment removed an earlier provision that defendants who successfully claim immunity under “stand your ground” be reimbursed for expenses if the prosecution violates what are known as rules of discovery.

Bradley said prosecutors had been “concerned about the precedent that would be set if we were to go down that road. … At the end of the day, I think that’s a reasonable position for my friends in the state attorney’s office to take, and so we agreed to remove the language.”

Soto and Sen. Audrey Gibson, D-Jacksonville, who had voted against the bill in previous committee stops, supported the amended measure.

–Margie Menzel, News Service of Florida