Understanding Florida's "Stand Your Ground Law" and Defending Yourself in your Home and Vehicle

Understanding Florida’s Stand Your Ground Law

BY:

Dr. Peter A. Barone Esq.

A person’s home is considered to be one of the most sacred places in our society. In fact, the 4^th Amendment provides the greatest amount of protection from the Bill of Rights in the United States Constitution. Providing the ability for people to protect themselves in their own homes is critical to adhering to the 4^th Amendment. In line with this it is also critically important to provide people to have the right to protect themselves within their home. People realize that law enforcement cannot always respond in a timely manner to an emergency situation like a burglary of a home which is occupied and being invaded by burglars. In a highly publicized action, the Florida Legislature enacted in 2005 what has been popularly known as the “Stand Your Ground” law. This law is codified in Sections 776.012, and 776.013, Florida Statutes. This statute provides that a person is justified in the use of deadly force and has no duty to retreat if either of the following situations exist in the situation:

(1) the person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself, or another or to prevent the imminent commission of a forcible felony; or
(2) the person acts under and according to the circumstances set forth in Section 776.013 (pertaining to the use of force in the context of a home or vehicle invasion).

An examination of the Florida “Stand Your Ground” law does not create a new type of affirmative defense for the individual who is in the home being invaded by burglars or attackers. The basic principle that a person may use deadly force in self-defense if he or she “reasonably believes” that such force is necessary to prevent imminent death or great bodily harm has been the law in Florida for well over a century. To better understand this and to see how long the premise has been in existence a review of the case of Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892) would be of assistance. Examining the statute demonstrates that rather than creating a new defense for people to defend themselves in their own homes when someone invades the home the “Stand Your Ground” law actually broadens the scope of a self-defense claim by establishing a general “no duty to retreat” rule which the Castle Doctrine required. It is understandable that people were not very pleased with this “duty to retreat” as was required in the Castle Doctrine.

Further examination of the “Stand Your Ground” law shows that prior to the enactment of the statute, a person could not use deadly force in self-defense without first using every reasonable means within his or her power to avoid the danger, including retreat. To better understand this requirement examining the cases of Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). The “Duty to Retreat” was not a part of the statute but it was part of what was derived from common law whereas now the governing rule is statutory under the “Stand Your Ground” law.

The American people seem to have had enough of not being able to properly defend themselves in their home and on the street. The representatives appeared to have listened to them and in response they not only abolished the common law duty of retreat for cases involving the use of deadly force “Stand Your Ground” in the home they also went one step further in cases involving home or vehicle invasions. Where again are considered to be places of privacy and require warrants to make searches or arrests without probable cause. Crimes committed in homes and vehicles are seen as burglaries and if there is a battery or other violent crimes within the home or vehicle they are considered to First Degree Felonies. Examining Section 776.013, Florida Statutes it clearly provides that, when an intruder unlawfully enters, attempts to enter, or refuses to leave a dwelling, residence, or vehicle owned or lawfully occupied by another person, the owner or occupant is presumed to have held a reasonable fear of death or great bodily harm so as to justify the use of deadly force. The intruder is furthermore presumed to be doing so with the intent to commit an unlawful act involving force or violence. This verbiage very much changes the requirement for he resident or driver to not only retreat but also provides (with logic) that it is presumed that the act the perpetrator is performing is considered to be an “unlawful act of violence” and as a result does not require that the home or vehicle owner prove they retreated or that the perpetrator committed an act involving force or violence. The presumptions employed in the context of a home or vehicle invasion mark yet another statutory departure from the common law.

Although, prior to 2005, Florida case decisions had long recognized the “Castle Doctrine” (which provides that where one is not the aggressor and is violently assaulted in one’s home, there is no obligation to retreat), the requirement to retreat was there. In addition, the Doctrine did state that if there was no violent assault then the doctrine nonetheless required the owner or occupant of the home to reasonably believe that force was necessary to prevent death or serious bodily harm. Examining the facts and holding in the case of Danford v. State, 53 Fla. 4, 13 (Fla. 1907) provides good information addressing the main issues. Under the current statute, the reasonableness of the occupant’s belief is presumed so long as he or she acts within a “dwelling,” “residence,” or “vehicle,” as defined in Section 776.013, Florida Statutes.

When does Florida’s “Stand Your Ground” Law Not Apply?

Contrary to recent assertions made in the New York Times by UCLA Law Professor Adam Winkler, there are multiple statutory provisions limiting the scope of Florida’s “Stand Your Ground” law. Under Section 776.013(3), the “no duty of retreat” rule will not apply to a person who is engaged in an unlawful activity or is in a place where he or she has no right to be. Other provisions preclude a defendant from raising a self-defense claim altogether. Under Section 776.041, the justifications for the use of force do not apply if the accused is attempting to commit, committing, or escaping after the commission of a forcible felony.

The justifications for use of force will also not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may claim self-defense if: (1) in good faith, he or she withdrew from physical contact, (2) clearly indicated to the other person that he or she desired to withdraw and terminate the use of force, and (3) despite the communication and withdrawal, the other person continued or resumed the use of force. See Section 776.041(2)(b), Florida Statutes. Situations and totality of the existing circumstances are critical to be examined in making the assessment of the shooting of the perpetrator.

How Does a Home or Vehicle Owner Pursue Prosecutorial Immunity for Killing Someone Who Enters Their Home or Vehicle to Commit a Crime?

Florida’s Stand Your Ground law provides potential immunity from prosecution for an accused who can establish (by appropriate legal procedures) that his or her actions fell within the purview of the statute. To understand how “Stand Your Ground” immunity works, one has to understand the nature of a self-defense claim and how such a claim is typically raised in a criminal proceeding. Self-defense is a type of affirmative defense that operates to avoid the legal effect of a violent act (such as a homicide), which would ordinarily subject the accused to criminal liability. In a self-defense claim, the defendant admits the truth of the essential act (i.e. that he or she committed a homicide or other violence against a person), but justifies the act by claiming that it was necessary to save him- or herself from death, great bodily harm, or other unlawful uses of force. In the context of a homicide, a defendant claiming self-defense essentially says: “Yes, I did kill that individual during the time they broke into my home and tried to assault me but I did not murder (commit an unlawful killing) because, under the facts and circumstances, my acts were legally justifiable and in accordance with the :Stand Your Ground” statute.” Under common law and in most criminal cases today, the question of justifiable self-defense is a factual question for the jury to resolve at trial. The jury is the “fact-finder.” They decide whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.

Stand Your Ground makes another significant change from the common law. Under Section 776.032, Florida Statutes, a person who uses force as permitted in Section 776.012 or Section 776.013 “is immune from criminal prosecution and civil action” for the use of such force (with certain limited exceptions). Note the word “immune” which here means that, if the accused can factually establish pre-trial that his or her use of deadly force occurred under the circumstances outlined in Section 776.012 or Section 776.013, the State of Florida is legally and procedurally barred from further prosecution in the matter. In the event that a civil action is brought against the person who used qualifying deadly force, a court must award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred in the defense of the case. The majority of time the person who is the resident and who kills the perpetrator does not get charged because the State Attorney reviews the case and information from the investigators and makes the decision as to whether or not they should or should not be charged based upon the statute and the facts of the case.

The procedures for asserting prosecutorial immunity under the “Stand Your Ground” law are outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. The Petersen decision definitively established that Section 776.032 was created by the Florida Legislature to establish a “true immunity” and not merely an affirmative defense. There is a very big difference between an affirmative defense of which the defendant has to plead and then prove and immunity. The Court stated that, when immunity under the law is properly raised by a defendant, the trial court (at a hearing) must decide the matter by confronting and weighing only factual disputes. Petersen held that a defendant may raise the question of statutory immunity pre-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist. Again the majority of the time this decision is done by the prosecutor and if the person is charged then the court will usually make the decision pretrial.    

An examination of the case of Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the First District decision in Petersen which resolved a previous conflict that existed between the First and Fourth District Courts of Appeal and as a result of the resolution of the conflicts the Petersen is now binding law on all Florida courts.

If for some reason the State Attorney decides to file, the case against the home or vehicle owner which is usually not the case then the following must take place. Under the procedures outlined in Petersen, prosecutorial immunity does not attach under Florida’s “Stand Your Ground” law by way of mere factual assertion. The issue is raised pre-trial through the filing of a Motion for Declaration of Immunity and/or Dismissal. To obtain such a declaration by the trial court, a hearing is held where the defendant must demonstrate by a preponderance of the evidence his or her qualifications for immunity. This essentially reverses the burden of proof traditionally at play in a criminal case. The defense presents the evidence, shows that the statutory prerequisites have been met, and requests that the court grant the motion and appropriate relief. If the Motion is granted, the defense then files a Motion to Dismiss, as there is no longer a legal basis to proceed with the prosecution. The Motions for immunity and dismissal are frequently consolidated into a single filing.

There are many reasons why a prosecutor might file charges and that will not be addressed in this writing. “Stand Your Ground” in no way prevents a prosecution from being initiated against an accused. State Attorneys routinely file charges against defendants even where there is a clear “Stand Your Ground” defense. In those cases, the prosecutor will file charges, and, at an appropriate stage, defense counsel may file a Motion for Declaration of Immunity and Dismissal. The matter is then heard at an evidentiary hearing, where the defense must show its entitlement to immunity by a preponderance of the evidence. If successful, immunity is granted and the case is dismissed. If unsuccessful, the prosecution is resumed and the case resolves by way of plea or trial.

                                                       References 

Danford v. State, 53 Fla. 4, 13 (Fla. 1907).

Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010),

Florida Statutes Sections 776.012, and 776.013

Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892).

Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008).

State v. Bobbitt, 415 So. 2d 724 (Fla. 1982).

Weiand v. State, 732 So. 2d 1044 (Fla. 1999).