Florida’s Stand Your Ground law is based in a common law belief that homeowners inherently have the right to protect their home, self and family members from those who unlawfully enter the residence. It is called the “castle doctrine” from the English belief that everyone’s home is their castle and the homeowner has a right to defend it.

Expansion of Stand Your Ground

In 2005, the Florida Legislature enacted a law that expands the concept of protecting your home to protecting yourself and others outside of the home. The "Stand Your Ground" law provides that a person is justified in using deadly or non-deadly force in any location, not just their home, and that they are not required to retreat from the perceived threat. The law states in part that the person must "reasonably believe that such force is necessary to prevent imminent death or great bodily harm to himself or herself, or another."

Under this law, if a person is charged with murder, man slaughter or assault, he or she may assert the Stand Your Ground Defense. In this situation, the following will occur:

  1. The defense will file a motion with the judge, notifying the court of a Stand Your Ground Defense.
  2. A pre-trial hearing will be held and the burden of proof is on the defendant to demonstrate beyond a reasonable doubt that he or she acted in accordance with the Stand Your Ground law.
  3. The judge makes a determination on the motion.
  4. If the judge finds that the defendant's actions meet the Stand Your Ground threshold, the case is dismissed.
  5. In the alternative, if the judge finds that the defendant's actions did not meet the Stand Your Ground threshold, the case will move forward to a jury trial. The defendant can still present a self-defense affirmative defense at this time.

The burden of proof is on the defendant, rather than the prosecutor, to show that their actions met the legal requirements of the law.

Shift in the Burden of Proof

Recently, Florida Governor Rick Scott signed a law that shifts the burden of proof from the defendant to the prosecutor. Under this change, the State Attorney's Office must prove that the defendant's stand your ground defense is not applicable based on clear and convincing evidence. This is a slightly lower standard of proof than beyond a reasonable doubt, but is still stringent. This new, strengthened version of Stand Your Ground does not change the process of the pretrial hearing, just how the affirmative defense is proved or disproved.

Liberty Interests Protected

While some argue that the shift in the burden of proof from the defendant to the prosecutor is unfair, it is in fact necessary and appropriate to protect the rights of the defendant. As Americans, we have the right to liberty that cannot be taken away without due process of law. People seeking a Stand Your Ground defense face extensive incarceration time, which presents a significant liberty interest. The 2005 Stand Your Ground law was one of the few facets of criminal defense law that places the burden of proof of innocence on the defendant, rather than the burden of proof of guilt on the prosecutor.

We are a government of the people, by the people and for the people, and when a prosecutor charges someone with a crime, they must carry the burden to prove his or her guilt. Raising of an affirmative defense should never shift that burden to the defendant. The recent change in Florida's Stand Your Ground law simply reaffirms the legal principal that when a citizen's liberty interest is at stake, it is the responsibility of the government to prove the defendant's guilt.

Ben Stechschulte is a board certified criminal defense attorney who previously served as a prosecutor in Hillsborough County. He was recognized as a 2015 Rising Star by Super Lawyers® and has a Superb Avvo Rating. Contact his office for a free consultation.