Stand Your Ground and Self Defense
United States Constitution – 2nd Amendment
“A well-regulated militia, being necessary to the security of a free State, the right of the People to keep and bear arms, shall not be infringed.”
Florida Constitution – Article I, Section 8(a)
“The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.”
Both the United States and Florida constitutions protect our right to “keep and bear arms.” In addition, Florida has enacted statutes that further ensure our right to protect ourselves from illegal violence. It is good that the law recognizes that we have the right to defend ourselves. As both a Lifetime Member of the NRA and a holder of a Concealed Firearm License for the State of Florida, I am a firm believer in the value of these protections.
If you have been charged with a crime of violence, the following statutes may provide you with a legal and viable defense:
F.S. 776.013 – Justifiable Use of Force: Dwelling & Vehicle Protection / Deadly Force / Fear of Harm
You may have heard the expression “Your home is your castle”. This statute is known as the “Castle Doctrine” because it treats a dwelling and an occupied vehicle as if they were our castles – so important to our privacy and protection that they are given a special status. This statute provides the original “stand your ground” concept of defense.
If you have a right to be in a dwelling you have no duty to retreat, can stand your ground, and threaten to use or use deadly force if you reasonably believe that such force is necessary to prevent imminent death or great bodily harm to: a) yourself, b) another person, or c) to prevent the imminent commission of a forcible felony.
Your fear is presumed to be reasonable if: a) the other person was unlawfully and forcibly entering a dwelling or occupied vehicle, or b) was attempting to remove another person against their will, and c) you had reason to believe that the unlawful and forcible act was occurring.
In addition, any person who unlawfully and by force enters your dwelling or vehicle, is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
As you can see, this statute provides an excellent legal opportunity to defend yourself or others from unlawful violence. However, you should note that the presumption that your fear was reasonable does not apply in the following circumstances:
- a) the other person is a lawful resident of the dwelling (or owner of the vehicle), and there is no injunction or court order requiring them to stay away from the dwelling or vehicle;
- b) the other person is attempting to remove a child or grandchild, or someone they have lawful custody of;
- c) you are engaged in a criminal activity or using the dwelling or vehicle to conduct a criminal activity;
- d) the other person is a law enforcement officer who is entering the dwelling or vehicle in the performance of his duty and properly identifies himself.
In these instances, your fear would not be presumed to be reasonable and you would have the burden of proving that it was.
F.S. 776.012 – Justifiable Use of Force: In Defense of Persons
This statute is commonly known as the “Stand Your Ground” law. We can consider this to be related to the Castle Doctrine – but it extends the right to defend yourself or others beyond and outside of dwellings and vehicles. Let’s examine some of the specific details and benefits of this law.
You have no duty to retreat, can stand your ground, and threaten to use or use deadly force if you reasonably believe that such force is necessary to prevent imminent death or greatly bodily harm to yourself or another, or to prevent the commission of a forcible felony. This right to stand your ground is available to you only if you are not engaged in a criminal activity and are in a place where you have a right to be.
You can stand your ground and threaten to use or use, non-deadly force if you reasonably believe that such force is necessary to defend yourself or another against the imminent use of unlawful force. This right of self defense is apparently available to you even if you are engaged in a criminal activity and in a place where you have no right to be.
F.S. 776.031 – Justifiable Use of Force: In Defense of Property
This statute extends the right to stand your ground and threaten to use or use non-deadly force if you reasonably believe that such force is necessary to prevent trespass or criminal interference with property (other than a dwelling) in the lawful possession of yourself or a family member.
Section (2) of this statute adds that you can threaten to use or use deadly force only if you reasonably believe that such force is necessary to prevent the imminent commission of a forcible felony. Again, the right to stand your ground and threaten or use deadly force is available to you only if you are not engaged in a criminal activity and are in a place where you have a right to be.
F.S. 776.032 – Immunity From Prosecution and Civil Action
This statute is significant in that it provides you with some very strong protections if you have had to act in self defense, the defense of others, or the defense of property as permitted in F.S. 776.012, 776.013, or 776.031.
These protections include:
- a) An immunity from criminal prosecution.
- b) An immunity from civil action (i.e. a law suit by the other person or his heirs).
Note: The Court is also required to award you reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by you in defense of any civil action, if the court finds that you are immune from prosecution.
Note: This immunity does not apply if the person against whom force was used is a law enforcement officer.
Note: The immunity from “Criminal Prosecution” protects you from arrest, detention in custody, and charging or prosecuting you for a crime of violence.
Note: The statute provides that law enforcement can investigate your threatened use or use of force, but they may not arrest you unless they determine that there is probable cause that the force used was unlawful.
Note: If there is a criminal prosecution, you may raise a claim of self-defense immunity in a pretrial motion.
The Pre-trial Hearing: Stand Your Ground – Self-Defense Immunity
Your attorney may file a pretrial motion for you, claiming your right to self-defense immunity under F.S. 776.032 (4). As the word “pretrial” suggests, this motion will be heard by the Court before your case proceeds to a trial by jury. If you win this motion, the Court will dismiss the charge and you will be immune from further prosecution.
At the hearing, your attorney would present what is known as a “prima facie” claim of self-defense. Once your attorney has raised such a claim, the prosecutor then has the burden to prove to the Court that your claim of self-defense immunity should be denied. The burden of proof required of the prosecutor is specified as “clear and convincing evidence”. This is a higher and more difficult burden for the prosecutor than a mere “preponderance of the evidence” standard.
If the Court denies your motion for immunity, you still maintain the right to present evidence of self-defense at a jury trial, pursuant to F.S. 776.013, 776.012, 776.031, and Standard Jury Instruction 3.6(f).
As both a Lifetime Member of the NRA and a holder of a Concealed Firearm License for the State of Florida, I stand ready to represent you on your claim of Stand Your Ground Self-Defense Immunity.