MIAMI — Florida, which spearheaded the country’s use of the Stand Your Ground defense, is poised to significantly alter its self-defense laws, making it easier for defendants to use them.
The Florida Legislature is on the verge of passing legislation that would bolster self-defense laws and shift the burden to prosecutors to show that such laws should not apply.
The Senate on Wednesday is expected to pass a revised the Stand Your Ground bill, paving the way for the House to take up its own version of the legislation. Gov. Rick Scott, a strong proponent of gun rights, is widely expected to endorse the final proposal.
Florida, nicknamed the Gunshine State, became a symbol of strong self-defense laws after George Zimmerman shot and killed Trayvon Martin, an unarmed black teenager, in 2012 and was later acquitted when a jury found he was justified in pulling the trigger. (While Mr. Zimmerman argued self-defense, he did not offer a Stand Your Ground case.)
The furor surrounding the shooting brought renewed attention to Florida’s far-reaching self-defense laws and cast a light on several notorious Stand Your Ground claims. In one 2012 case, a Miami man spotted a thief stealing his car radio. After the thief tried to strike him with a bag full of stereos, the man chased him down the street as he fled and stabbed him to death. He hid the knife and later sold a few stereos from the bag. The defendant’s case was dismissed by a judge after a Stand Your Ground hearing.
If the measure becomes law, the state would again be at the forefront of expanding self-defense laws. Florida would become the first state to apply a tougher standard to the law during the pretrial hearing. Under the measure, the burden of proof would be shifted to prosecutors and defendants would no longer have to present evidence, typically by taking the stand, to prove their claim of self-defense.
Instead, prosecutors would have to prove beyond a reasonable doubt — the highest legal standard — that the use of force was not justified.
The Stand Your Ground provision allows people to use deadly force, without first attempting to retreat from a dangerous situation, if they “reasonably believe” their lives are threatened. Supporters of the revised bill said they did not want people who act in self-defense to face unfair hurdles in getting the charges dismissed before a trial.
“It’s right and just to have the government’s feet held to the fire throughout a criminal prosecution from arrest to trial,” Senator Rob Bradley, a Republican who is author of the Senate bill, said during a recent floor debate. “I consider this to be a conservative bill that is grounded in the constitution.”
Prosecutors have fiercely opposed the measure, saying it runs counter to the traditional workings of the criminal justice system. Typically, when defendants seek the dismissal of charges at a hearing — arguing entrapment, for example — it is up to them to present evidence and persuade the court, not the other way around.
The new standard would require prosecutors to essentially put on a nonjury mini-trial, requiring victims and witnesses to testify twice and delaying the actual trial, prosecutors said. And with defendants no longer required to offer evidence — which usually means taking the stand — there will be little, if any downside, for them to claim a Stand Your Ground defense.
“If all they have to do is file a motion and say ‘I claim Stand Your Ground,’ we are going to have to go through an entire trial because we don’t know what specific facts they are using or claiming to support their case,” said Glenn Hess, the president of the Florida Prosecuting Attorneys Association. “We have to present our whole case. There is something wrong with that.”
This would create a logjam of cases, prosecutors said, because under Florida law anyone with a self-defense claim — not just those involving a death — can ask for immunity hearings. That includes people charged with misdemeanors, battery, assault and domestic violence.
“There would be zero risk now for a defendant to ask for a hearing,” said Phil Archer, the state attorney for the 18th Circuit Court in Florida, which covers Brevard and Seminole Counties.
Right now, Florida, along with most of the 22 states with similar self-defense laws, places a lower burden of proof on the defendant at the pretrial hearing — a preponderance of the evidence, not beyond a reasonable doubt. Defendants are free to claim self-defense before a judge and request immunity from criminal and civil prosecution. But they must present evidence or take the stand to support the self-defense claim, which can be a big deterrent for most defendants.
If immunity is granted, the judge dismisses the case. If immunity is denied, the case moves to trial, where the self-defense claim can still be presented before a jury. Last week, Curtis J. Reeves Jr., the so-called popcorn shooter who shot and killed a man in a Tampa movie theater, lost his immunity hearing after invoking Stand Your Ground. He will now go to trial.
Two other states — Kansas and Kentucky — also place the burden of proof on the government during Stand Your Ground hearings. But the standard of proof is considerably lower. Prosecutors must simply establish probable cause that force was not legally justified.
Senator Bradley and his supporters argue that people who act to protect their own lives, or those of relatives, should not face undue obstacles to make their cases — like having to take the witness stand. “The burden should be high on the government,” he said, arguing that prosecutors are given the harder job for a reason, because a defendant’s liberty is at stake.
But the nuts-and-bolts of how the Stand Your Ground defense would play out in courtrooms will change considerably. The Florida Prosecuting Attorneys Association warned the Legislature that shifting the burden and allowing defendants to request hearings without having to take the stand or present evidence will clog up courts and delay trials. Defense lawyers mostly favor the proposed law.
Mr. Archer said only four Stand Your Ground hearings were held in 2016 in his jurisdiction, an area with a million people. He predicted that next year the number would be 4,000 if the measure becomes law.
State attorneys said that they were confident they would win most of the hearings, but that winning at trial could become more difficult. Delays seldom work in the prosecution’s favor because memories fade and witnesses disappear. Some victims, particularly those in domestic violence cases, are often reluctant to testify twice, an additional complication.
But, more important, they argue that if someone wants immunity from killing or hurting a person they should at least be required to explain how the crime occurred.
“If you want complete immunity, where you never ever face a jury of your peers, then take the stand and tell us why,” Mr. Archer said.