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SELF DEFENSE UNDER FLORIDA LAW


THE USE OF DEADLY OR NON-DEADLY FORCE IN SELF DEFENSE


Under Florida law, a person may avoid criminal liability for the use of deadly or non-deadly force where the circumstances show that he or she was legally justified in using such force. One such justification is known as “self-defense.”  Self-defense may be used to defeat a criminal charge and, under Florida’s “Stand Your Ground” law, may even be used to claim immunity from prosecution. The defense is most commonly raised in prosecutions for battery, assault, aggravated battery, aggravated assault, murder, and other crimes of violence.


In Florida prosecutions, self-defense is a type of affirmative defense that operates to avoid (or cancel) the legal effect of a violent act (such as a homicide or battery), which would ordinarily subject the accused to criminal liability. When an accused raises a self-defense claim, he or she effectively admits to the truth of the alleged act (i.e. that he or she committed violence against another person), but justifies the act by asserting that the act was reasonably necessary to save him- or herself from the imminent use of unlawful force by the other person.  In effect, the defendant says: “Yes, I committed the violent act.  But I did not commit the violent act unlawfully because, under the facts and circumstances, my acts were justifiable to prevent physical or legal harm to myself.”


Self Defense in Florida: When is Non-Deadly Force Allowed?


Under Section 776.012, Florida Statutes (Florida’s “Stand Your Ground” Law), a person is justified in the use of non-deadly force in self-defense where the person reasonably believes that such conduct is necessary to defend himself or herself or another against such other’s imminent use of unlawful force.  There is no duty to retreat. If the defendant is in his or her home or vehicle, then, under Section 776.013, Florida Statutes, the law will presume that the defendant had a reasonable fear of imminent death or bodily harm if the alleged victim unlawfully entered or remained or attempted to remove another person against their will.  A person who unlawfully and by force enters or attempts to enter another’s home or vehicle is furthermore presumed to be doing so with the intent to commit an unlawful act involving force or violence.


Self Defense in Florida: When is Deadly Force Allowed?


There are two primary statutes in Florida outlining when the use of deadly force is justified so as to avoid criminal liability. Under Section 776.012, Florida Statutes (Florida’s “Stand Your Ground” Law), a person is justified in using deadly force (and does not have a duty to retreat) if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony or to prevent imminent death or great bodily harm to himself or herself or another. Under Section 782.02, Florida Statutes, the use of deadly force is further justified when a person is resisting any attempt to murder such person or to commit any felony upon him or her or upon or in any dwelling house in which the person is located.


If the defendant is in his or her home or vehicle, then, under Section 776.013, Florida Statutes, the law will presume that the defendant had a reasonable fear of imminent death or bodily harm if the alleged victim unlawfully entered or remained or attempted to remove another person against their will.  A person who unlawfully and by force enters or attempts to enter another’s home or vehicle is furthermore presumed to be doing so with the intent to commit an unlawful act involving force or violence.


The presumption of reasonable fear of imminent death or great bodily harm does not apply if: (a) the person against whom the defensive force is used has the right to be in the home or vehicle, or (b) the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used, or (c) the person who uses defensive force is engaged in an unlawful activity or is using the home or vehicle to further an unlawful activity, or (d) the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter the home or vehicle in the performance of his or her official duties and the officer properly identified his or herself (or the person reasonably should have known that it was a police officer).


If a defendant was not engaged in an unlawful activity and was attacked where he or she was allowed to be, then the defendant has no duty of retreat and has a right to use force, or even deadly force, if the defendant (under those circumstances) reasonably believed that his or her use of force was necessary to prevent death or great bodily harm.  This is the key provision of Florida’s “Stand your Ground” law.


How Does a Jury Decide the Issue of Self-Defense in Florida?


In determining whether the use of deadly force or non-deadly force was warranted, a jury will look at the facts and circumstances as they appeared to the defendant at the time he or she claims to have acted in self-defense.  The jury will examine what a reasonable person would have done under the circumstances appearing to the defendant at the time of the incident.  This inquiry into what a “reasonable person” would have done is known as an “objective standard.”


Where the defendant in a Florida criminal case presents any evidence of self-defense, the State must overcome the claim of self-defense beyond a reasonable doubt.


What Evidence is Required to Raise a Self-Defense Claim in Florida?


The defendant is entitled to a jury instruction on self-defense in Florida when there is any evidence to support the claim.  This is a low standard and even a “scintilla” of evidence will be sufficient, even if the self-defense theory is extremely weak or improbable.  Self-defense may even be inferred from the State’s evidence without the Defendant or a defense witness ever taking the stand.


Where there is no evidence of self-defense, the jury will not be given a self-defense instruction and the defendant will be limited in closing argument to challenging the State’s evidence and denying that the incident took place (assuming no other defenses were raised).  Thus, if a Defendant testifies during trial, and states that he acted out of anger after the alleged victim walked away, he or she would not likely be entitled to a self-defense instruction.  Florida courts have also denied self-defense instructions where the claim of self-defense is inconsistent with the defense theory of the case, such as where an alibi defense is raised.


There are other circumstances that may cause the denial of a self-defense instruction under Florida law.  Under Section 776.041, Florida Statutes, self-defense is not available to a person who is attempting to commit, committing, or escaping after the commission of a forcible felony. Section 776.08, Florida Statutes, defines “forcible felony” to include treason, murder, manslaughter, sexual battery, carjacking, home invasion robbery, burglary, robbery, arson, kidnapping, aggravated battery, aggravated assault, stalking, use of bombs, aircraft piracy, and any other felony that involves the use or threat of physical force or violence against any individual.


In addition to the exception for forcible felonies, self-defense is not available where the evidence establishes that the defendant initially provoked violence against himself.  See Section 776.041, Florida Statutes.  To claim self-defense in this scenario, the accused must present sufficient evidence that the force used by the alleged victim was so great that the accused reasonably believed that he or she was in imminent danger of death or great bodily harm and that he or she had exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant. Alternatively, the person who provokes the initial attack may nonetheless 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.


What Evidence Can Be Used to Support a Self-Defense Claim in Florida?


There is wide variety of methods to establish a claim of self-defense at trial.  Obviously, the defense can present its own witnesses, physical evidence, photographic evidence, video evidence, audio evidence (such as a 911 call), and the testimony of the defendant herself. There are other more creative methods, however, which may include evidence of the victim’s violent character, reputation evidence (i.e. reputation for violence in the community), and evidence prior specific acts of violence by the victim, if relevant to the reasonableness of the defendant’s fear.


Under Florida’s “Stand Your Ground” Law, Can a Claim of Self-Defense Entitle a Person to Immunity from Prosecution in Florida?


In appropriate cases, yes.  Under Florida’s “Stand Your Ground” law, a person who meets the statutory requirements of self-defense can assert immunity from prosecution so as to avoid a jury trial altogether.  For a more detailed discussion of the Florida Stand Your Ground law and the standards and procedures for claiming immunity, see our Jacksonville “Stand Your Ground” lawyer web page.



If you have been charged with a criminal offense involving violence in Jacksonville, FL and believe that you were acting in self-defense, contact an experienced Jacksonville Criminal Defense lawyer to discuss your case.  Self-defense is one of the most versatile and complex of Florida affirmative defenses, and a viable defense may be available in your case to contest the charges or have them dismissed. Our Jacksonville criminal defense attorney may be able to help. Contact Hussein & Webber, PL today for a free consultation.