Florida's Stand Your Ground Law (Part 1)

by Aaron Delgado
02/01/19 (Updated: 02/04/19)

In this two-part article, we will be examining Florida’s unique & evolving Stand Your Ground Law as it has changed over the years, including:

  • How it has been applied (or not applied) in recent high profile Florida cases, like the prosecutions of George Zimmerman, Curtis Reeves, and Michael Drejka
  • How it can be used as a successful defense in a variety of cases, even those that do not involve deadly force

What is the Castle Doctrine?

Florida’s Stand Your Ground Law is a controversial expansion of the ancient Castle Doctrine, currently at the center of many high profile shooting cases. The Castle Doctrine permits the use of deadly force in self-defense, removes any requirement to attempt to retreat, provides civil and criminal immunity for justifiable use of force, and makes the State prove the actions are not justified as self-defense.

This is not a fantasy piece, but rather one addressing how the State of Florida has interpreted and codified the fundamental and common law right of defending oneself, others, or their property. Chapter 776 of the Florida Statutes which is formally entitled “Justifiable Use of Force” is also known as or as commonly referred to on just about every media and social media outlet as Florida’s Stand Your Ground Law.

Stand Your Ground vs Self Defense

For over a century, Floridians have recognized their right to self defense even in situations involving deadly force (Lovett v. State, 30 Fla. 142 163-164 (Fla. 1892)). However, the biggest distinction between the current version of Florida’s Stand Your Ground Law and self defense is this:

Self Defense: A person has a duty to retreat prior to using deadly force.

Stand Your Ground: There is no duty to retreat so long as you are in a place you have a right to be and are not engaged in unlawful activity.

Understanding Today’s Stand Your Ground Law

There are 12 sections in Chapter 776 of the Florida Statutes, all of which have significant interplay. Pertinent selections of Chapter 776 are as follows:

1. Use or Threatened Use of Force in Defense of Person

Statute 776.012 states:

(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

As the discussion will further demonstrate, Section 776.012, which concerns the defense of person, sets the overall tone for the rest of the chapter, with each section addressing a different scenario where the use of force is justified. Essentially, one is entitled to meet force with force and has no duty to retreat if attacked or provoked due to the necessity to defend another or property.

2. Justifiable Use of Force in the Context of Home Protection

Statute 776.013 states:

(1) A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use:

(a) Non-deadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force; or

(b) Deadly force if he or she reasonably believes that using or threatening to use 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.

3. Presumption of Reasonable Fear

Florida's Stand Your Ground Law makes anywhere you have a right to be your “castle,” and you may defend your castle with deadly force if necessary. You have no duty to retreat; you can Stand Your Ground!

Illustrating the deference to the sanctity of protection one’s home is the “presumption of reasonable fear” as set forth in Section 776.013(2):

(2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

Regardless of whether a person is in actual fear while protecting their home or vehicle from forcible entry, Florida’s Stand Your Ground Law presumes you to have a reasonable fear in such circumstances unless the person committing the forcible entry proves otherwise.

4. Use or Threatened Use of Force in Defense of Property

Section 776.031, Florida’s Stand Your Ground Law also addresses the justifiable use of force with respect to defending one’s property, as below:

(1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

This section illustrates how Florida’s Stand Your Ground Law can be applied to cases which do not involve a scenario where one is being attacked, as long as a person had a reasonable belief that the use of force was necessary to prevent the commission of a crime against property.

There are several implications to this particular section, which can be illustrated in this example: Suzie sees a person breaking into her car. Her car is parked in a public parking space. Suzie has no duty to first retreat and call the cops. Suzie can approach the vehicle and punch, slap, or kick the person to prevent the burglary. Arguably, she could even display a bat or other weapon so long as such display is not a use of “deadly force.”

Could she brandish a firearm? Perhaps. Could she even point it at the suspect? If she doesn’t pull the trigger, then she has not “used deadly force,” but she has threatened deadly force, which according to Section 776.031 is impermissible if the crime to be prevented is merely a car burglary (see Slocum v. State, 7 So. 3d 574 (Fla. 1st DCA 2004).

About Slocum v. State: While Section 776.08 defines “burglary” as a forcible felony, courts have required a showing of physical violence in the commission of a car burglary. This case specifically interprets burglary of conveyance in the context of enhancing the offense for the purpose of sentencing a defendant recently released from prison.

Accordingly, Florida’s Stand Your Ground Law applies to any type of force and any type of weapon, and the nuances of this statute should clearly illustrate the importance of having a skilled criminal trial attorney by your side.

5. Immunity from Prosecution

The pre-trial hearing aspect of Florida’s Stand Your Ground Law has received a significant amount of debate. While many oppose the law outright based upon its perceived tendency to discriminate against persons of color, other constitutional purists took issue with a prior version of Stand Your Ground’s burden shift to a criminal defendant.

In an apparent response to such criticism, the legislature amended the Stand Your Ground Law to its current version. Thus, a criminal defendant is no longer charged with the obligation of proving the entitlement to the immunity. Rather, the current version of the law merely requires a criminal defendant to allege facts, which if interpreted in the defendant’s favor, could support the defense. If the Defendant alleges sufficient facts, it is then up to the State to disprove the defendant’s entitlement to the immunity at a pre-trial hearing.

Section 776.032 sets forth the immunity from prosecution in the event one prevails in demonstrating justifiable use of force as to self protection, home protection, or property protection. In the pertinent part, it reads as follows:

(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

However, this significant amendment has not quenched the controversy over the law. Tashara Love is facing criminal prosecution for the 2015 shooting of a man who punched her daughter outside of a nightclub. Since Ms. Love’s case would fall under the older version of Florida’s Stand Your Ground, she would bear the burden of proving her entitlement to the protections of the Law.

The Florida Supreme Court has agreed to hear the case. The issue to be determined is whether the amendment should be applied retroactively. While the Supreme Court may end the ambiguity over this procedural but extremely important aspect of the law, Florida’s Stand Your Ground Law will continue to be highly debated.

Stand Your Ground Lawyer

Because of Florida’s significant penalties associated with discharging a firearm during the commission of a crime (10-20-Life Laws) or other violent offenses, it is extremely important that a person charged with a crime has an experienced and aggressive trial attorney review their case to determine whether the protections under Florida’s Stand Your Ground Law would apply. If you or a loved one find yourself in a similar situation, do not hesitate to contact our office and schedule a free consultation with one of our experienced criminal trial lawyers.

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