Home Op/Ed Florida Senate Passes New ‘Stand Your Ground’ Burden of Proof Law

Florida Senate Passes New ‘Stand Your Ground’ Burden of Proof Law


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By Terri L. Wilkin
Program Director for Legal Studies, AMU
Special Contributor to In Homeland Security

On May 4, 2017, the Florida Senate passed, by a vote of 24 to 13, a new version of Florida’s “Stand Your Ground” law, Senate Bill 128. The law had been approved by the Florida House in April.

One of the contentious points between the House and Senate bills was the standard of proof provision. The Florida Senate originally wanted the standard to be “beyond a reasonable doubt,” but the House approved the standard of “clear and convincing evidence.”

Clear and convincing evidence is the standard of proof between “beyond a reasonable doubt” (100% certainty) used in criminal cases and a “preponderance of the evidence” (51% or “more likely than not”) used in personal injury and tort cases.

This means that the state must produce evidence that is deemed “substantially more likely than not” (or more than 51% but less than 100%) that their case is true.

Florida Governor Scott Is Expected to Sign the Bill into Law

The bill is awaiting Governor Rick Scott’s signature. If he signs it, the revised law will go into effect on July 1, 2017. Governor Scott (R) is a proponent of gun rights, making it a sure bet that he will sign the new version of the “Stand Your Ground” legislation into law. The law allows individuals to use deadly force if they reasonably believe that, by standing their ground and defending themselves with deadly force, they will prevent their bodily harm and/or death.

A JAMA Network study conducted from 2005 to 2014 found that since the inception of the law in 2005, there has been a 24.4% increase in the monthly homicide rates in Florida and a 31.6% increase in homicides by firearms. In states without a “Stand Your Ground” law, these rates remained flat, debunking the pro-gun advocates’ argument that the increase in homicides during the years under study was due to a crime wave.

The revised law shifts the burden of proof from the defendant to the prosecution. Moreover, prosecutors may have to prove the case twice; once at the initial “Stand Your Ground” hearing and then again at trial if the defendant is not permitted initially to use that defense.

One of the problems prosecutors will face in cases when the defendant claims the “Stand Your Ground” defense and the individual he or she shot has died. How will the prosecutor prove that the defendant does not qualify for the “Stand Your Ground” defense when the victim is dead?

It is predicted that Florida will see a lot more shootings and an increase in defendants using “Stand Your Ground” as their defense. The statute is being dubbed the “How to Get Away with Murder” or the “Shoot to Kill” law.


About the Author
Terri L. Wilkin graduated from the University of Maryland’s Francis King Carey School of Law in May 2007. Terri is admitted to practice law in the State of Maryland and the District of Columbia, and has been admitted in the Federal United States District Court for the District of Maryland. Prior to law school, she obtained a Master of Science dual degree from the Johns Hopkins University in Leadership and Finance/Accounting. Her 26-year career with the Maryland State Police includes assignments in patrol, criminal and drug investigations, white collar crime, intelligence work, training, the Deputy Director of the Planning and Research Division, and as the Department Prosecutor. She is also a Florida Licensed Private Investigator and a Managing Partner in an Investigative Consulting Firm.