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Florida’s Stand your Ground law and how it can work in your defense

Posted by Larry Avallone | Mar 06, 2020 | 0 Comments

Florida's Stand your Ground law

The Stand Your Ground law, a groundbreaking Florida self-defense statute, was passed in 2005. Since that time at least 30 other states have implemented similar laws. It's one of the most controversial criminal laws in the United States because it greatly expands the scope of the self-defense claims, allowing for the use of deadly force in many more situations without fear of prosecution. The law eliminates the duty to retreat, presuming that force is justified is the perpetrator has illegally entered a dwelling or vehicle. It goes even farther by offering immunity from prosecution for individuals that use force in ways that are defined by the statute. Proponents say it helps people protect themselves, but opponents believe it empowers vigilantes, and negatively impacts minorities. If you've been charged with a crime and believe you acted in self-defense, it's important to hire an experienced Florida criminal attorney that can review the stand your ground defenses in your case. 

Self-Defense and The Duty to Retreat

The idea that a person may use force in self-defense when they reasonably believe they are in danger of great bodily harm or imminent death is based on British common law. It was adopted in Florida and many other states in the late 19th Century. Under common law, in order to assert self-defense, a person was required to show that they used every reasonable means within their power to retreat from the danger. The Castle Doctrine was an exception to the duty to retreat. Under this exception, the user of force did not have a duty to retreat if he was not the initial aggressor and the assault took place in his home. Stand your ground takes this farther by eliminating the duty to retreat under most circumstances where a person reasonably believes they were in danger in a place where they were authorized to be. The Florida law presumes that the use of deadly force is justified whenever there is an unlawful entry into a residence or vehicle. Florida Statute §776.012(2), completely departs from the common law standard regarding the duty to retreat and says: “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.”

Florida Statute §776.013(2) creates a presumption that the use of force by an occupant in their dwelling had a reasonable fear of imminent death of great bodily harm. Florida Statute §776.013(4) creates the presumption that when a person enters of attempts to enter a dwelling, residence or occupied vehicle, they are doing so with the intent to commit an unlawful act involving force or violence. Stand your ground is a complicated statute that is often amended, so it's important that you hire a Florida criminal defense attorney that is experienced and up to date on the law. 

Immunity from Prosecution

In Florida, prior to stand your ground, a criminal defendant could assert self-defense as an affirmative defense when charged with a violent crime. This still required the person to stand trial on the criminal charges and for a jury to decide whether the violent act was justifiable as self-defense. Stand your ground completely changed this scenario by offering complete immunity from prosecution to defendants that used force within the parameters of the statute. With some exceptions, Florida Statute §776.032 states that a person that uses force in ways that are permitted under the statute is completely immune from criminal or civil action for using force and the harm it causes. The term immune in this context means that a defendant can establish this defense prior to trial and legally bar prosecution. In the 2005 Florida stand your ground law, the defendant had the burden of proof to show by a preponderance of the evidence that he fulfilled the provisions of the statute to invoke immunity. This was done by making a motion for declaration of immunity and/or dismissal. If the motion was won, the case was dismissed, and if the motion was lost the case proceeded to a plea or a trial. In 2017, Florida amended the law to make it easier for a defendant to invoke immunity by shifting the burden to the prosecution to show by clear and convincing evidence that the defendant did not qualify for immunity. 

Stand Your Ground Limitations

There are some limitations on stand your ground that can impose a duty to retreat and preclude immunity. The first limitation is that you cannot invoke stand your ground if you are a trespasser or are engaged in any type of criminal activity. The second limitation is that it does not apply when a person is committing or escaping from committing a forcible felony. In this case, there is no immunity and self-defense must be asserted in a traditional manner. There are some exceptions to the presumption of immunity such as:

Force was used against a person with lawful custody of a child, trying to regain the child.
The person using force to defend themselves is engaged in criminal activity.
The person using force knew, or should have known, that they were using force against a law enforcement official. 

Why is Stand Your Ground Controversial?

The Florida law, and the laws of about 30 other states that followed, are backed by The National Rifle Association (NRA) and other Second Amendment Rights groups to garner support for gun ownership by average citizens. The goal of the law is to reduce crime and empower citizens to protect themselves, but critics claim it causes more homicides. That's because deadly force is being used in situations where safely retreating would be an alternative. According to The National Urban League, and many other studies, murders increased by over 20% in Florida after passage of stand your ground, with a close to 80% increase in justifiable homicides. 

States that didn't pass a stand your ground law saw a small decline in homicides during the same period. Critics also charge that the law deputizes citizens that are untrained, leading to deadly mistakes. There are many situations where a person might technically be trespassing but is innocently seeking directions or other assistance. Proponents of the bill cite the increase in gun sales and support for gun ownership as a positive by product of the law. They also believe that despite statistics showing an increase in homicides, stand your ground is an important law that helps citizens feel safer by enabling them to protect themselves. One thing is clear, if you're a criminal defendant that acted in self-defense, stand your ground cam help your experienced Florida criminal defense attorney defend your case. 

If you have questions about the Florida Stand your Ground law, or how it works in Volusia County courts, please contact me.

About the Author

Larry Avallone

Larry Avallone is a Volusia County Florida based Board Certified Criminal Trial Attorney. He has been a Deputy Sheriff and a State Prosecutor and he exclusively practices criminal defense law.


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