Self-Defense Stands to Be Super-Sized in Florida

George Zimmerman would have been even more likely to walk away from charges in the Trayvon Martin shooting if House Bill 169 and Senate Bill 344, which are now before the Florida House and Senate criminal justice subcommittees, had been the law of the state in 2012.

Forget Zimmerman for a paragraph. Andrew Branca, an attorney specializing in self-defense law, warns the legislation, as proposed, would make it nearly impossible to prosecute anyone who claims he killed in self-defense.

HB 169 was proposed Sept. 15 by the man often referred to as the “Godfather of Stand Your Ground” in Florida, Rep. Dennis Baxley (R). Sen. Rob Bradley (R) introduced a companion piece of legislation in the Senate, SB 344, a few days later.

Although some describe the legislation as a new version of Stand Your Ground in Florida, Branca explained it really is not. HB 169 and SB 344 don’t touch the concept of whether a person who feels he is in danger has to try to run for his life.

Instead, the legislation amplifies the self-defense immunity argument or the “use or threatened use of defensive force” and puts the burden of proof on the prosecution once a prima facie claim of self-defense immunity is raised by the person who fights back against an attack or the threat of an attack.

If prosecutors fail to prove the defendant did not act in self-defense, under the legislation offered by Baxley and Bradley a judge could stop the case at the pre-trial hearing stage.

In other words, George Zimmerman’s attorneys could have claimed self-defense and then it would have been up to the prosecution to prove Zimmerman did not act in self-defense.

HB 169 and SB 344 would also shorten the timeframe given prosecutors to accumulate evidence and craft their arguments.

This makes prosecutors and civil rights advocates nervous, too: People who successfully make their case of self-defense could go after the jurisdiction that charged them with a crime for “specified costs, attorney fees & related expenses.”

Baxley argues in the text of proposed legislation that it is only intended to clarify Florida’s self-defense law and “correct misinterpretations of legislative intent made by the courts.”

Baxley and Bradley describe HB 169 and SB 344 as “minor tweaks” to existing law.

“The Legislature has never intended that a person who acts in defense of self, others, or property be denied immunity and subjected to trial when that person would be entitled to acquittal at trial,” according to the HB169 text.

Andrew Branca, who like Baxley is a lifelong member of the NRA, said this is anything but a mere tweak or adjustment to Florida’s self-defense law. Branca wrote on his blog that it would be a “game changer” or “to quote Trump (satirically speaking), this change is not a 'tweak' to existing law: it’s a change that’s YUUUUUUGE.”

“In effect, should HB 169 become law it will be far less likely that the State will be able to bring a legitimate case of self-defense to trial.  It will also, however, mean that there will be an enormous increase in the number of marginal self-defense cases that will now qualify for self-defense immunity and therefore will not be able to be brought to trial under the new law, although they would have been brought to trial under the old law,” Branca wrote on his blog.

“Unquestionably, passage of HB 169 would mean that some unknown number of bad actors whose self-defense cases should be defeated will manage to avoid criminal prosecution,” Branca added. “Whether this is a worthy balance in exchange for greater protection for lawful self-defenders is a policy decision for the Florida legislature.”

The introduction of HB 169 and SB 344 is not the first time Baxley and those who share his views have tried to shift the burden of proof in self-defense trials. The Florida Legislature passed a law to do that in 2014, but it was rejected by the state’s Supreme Court.

The court, in the case of an Indiana tourist accused of pointing a gun at a man during a 2011 argument over driving skills on a road in Kissimmee, ruled shifting the burden to prosecutors at the pre-trial hearing stage of a trial would force prosecutors to prove their case twice -- once at pre-trial and again at the trial.

The legislation offered by Rep. Baxley and Sen. Bradley is expected to be moved to the full House and Senate for debate in the 2016 session of the Florida Legislature.