On Thursday, the Florida House easily passed a bill to expand the state’s Stand Your Ground law that has breezed through several committees. The bill would expand Stand Your Ground-like protections to those who point a gun at an attacker or fire a gun as a self-defense threat or warning, expanding the scope of the discretion judges and juries retain to exempt criminal charges for gun violence.
That NRA-backed bill advanced even as the trial in the killing of 17-year-old Jordan Davis continued. But before passage, an amendment inserted even more protection for Stand Your Ground defendants, with a provision that would prevent the public from getting court records in Stand Your Ground cases. The amendment purports to expunge criminal records, but as the Tampa Bay Times points out, it would also block the public from monitoring Stand Your Ground cases, and would have made it impossible for the newspaper to conduct its comprehensive survey of Florida cases involving the law since it passed in 2005.
Unsurprisingly, another proposed amendment that would have repealed the original Stand Your Ground law failed. Instead, wending its way through the state’s Senate is another bipartisan bill that purports to limit the original Stand Your Ground law.
Protesters occupied the Florida capitol for more than eight days last summer imploring repeal of Florida’s Stand Your Ground law, after prosecutors delayed in charging George Zimmerman citing the law, and a jury later acquitted Zimmerman. But recently, state Democrats who have acknowledged that repeal is not politically viable have joined with Republicans in a compromise bill that imposes at least rhetorical limits on the law. Responding to criticism of the law and evidence that it encourages vigilantism, the bill includes the following legislative statement: “The use of force authorized by this chapter is not intended to encourage vigilantism or acts of revenge, authorize the initiation of a confrontation as a pretext to respond with deadly force, or negate a duty to retreat for persons engaged in unlawful mutual combat.”
The amended provisions of the bill, however, do little if anything to change the result in Stand Your Ground cases. First, the bill as amended specifies that police must investigate all cases fully before deciding whether Stand Your Ground applies, but it does not remove the possibility that prosecutors will opt not to charge individuals based on the Stand Your Ground law. Second, it instructs county sheriffs to issue guidelines on neighborhood watch programs that specifically prohibit patrol participants from “confronting or attempting to apprehend” a person suspected of illegal activity. George Zimmerman was a neighborhood watch coordinator who claimed he confronted Martin because he looked “suspicious” and worried about a break-in.
Perhaps most significantly, the bill injects even more legal protection for defendants by shifting the burden of proof to prosecutors even before trial. It establishes that once defendants make an initial case that they used deadly force in self-defense, the burden falls to the prosecutor to show that “the defendant’s use of force was not lawful.” This is already the burden of proof when Stand Your Ground and all other self-defense claims go to trial. In fact, some have argued that this burden of proof in self-defense cases is what made it so easy for Zimmerman to be acquitted. But per a 2010 Florida Supreme Court decision, the burden is currently on the defendant who seeks immunity from a judge to prove the use of force was authorized by a preponderance of the evidence. Shifting that burden to prosecutors to instead negate a defendant’s self-defense claim at this early phase makes it a whole lot easier for defendants to escape liability — and jury scrutiny.
Lastly, while the bill clarifies that a person who “initially provokes the use of force” cannot later claim the defense, it limits “provocation” to those who use “force or threat of force.” This means, for example, that George Zimmerman engaging Martin as he minded his own business walking back from a convenience store would not count as provocation under the statute.
This bill has now passed two Senate committees, and must pass two more before it goes before the full Senate.