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In the wake of the Trayvon Martin shooting in February 2012, Florida’s “Stand Your Ground” law has come under increasing public scrutiny. While the current debate over the use of deadly force and immunity is understandable, the quality of the legal commentary on the topic leaves something to be desired. Discussions of Florida’s “Stand Your Ground” law tend to oversimplify the subject or leave out critical analysis of the procedures for asserting prosecutorial immunity under Florida law.
The following article by Jacksonville criminal defense attorney Troy J. Webber discusses the historical background and present scope of the “Stand Your Ground” law as it pertains to the use of deadly force. It further addresses the procedural steps for a defendant to make a claim of prosecutorial immunity.
In a highly publicized move, the Florida Legislature enacted in 2005 what has been popularly known as the “Stand Your Ground” law. This law, as codified in Sections 776.012, and 776.013, Florida Statutes, provides that a person is justified in the use of deadly force and has no duty to retreat if either:
(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).
Florida’s “Stand Your Ground” law does not create a new type of affirmative defense.
The principle that person may use deadly force in self-
If abolishing the common law duty of retreat for cases involving the use of deadly force was not enough, “Stand Your Ground” goes one step further in cases involving home or vehicle invasions. Section 776.013, Florida Statutes, 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.
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 doctrine nonetheless required the owner or occupant of the home to reasonably believe that force was necessary to prevent death or serious bodily harm. See Danford v. State, 53 Fla. 4, 13 (Fla. 1907). 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.
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-
The justifications for use of force will also not apply where the evidence establishes
that the defendant initially provoked violence against him-
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-
Here again, Florida’s Stand Your Ground Law 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.” This means that, if the accused can factually establish pre-
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. 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-
NOTE: In Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the First District decision in Petersen, resolving a previous conflict that existed between the First and Fourth District Courts of Appeal. Petersen is now binding law on all Florida courts.
Thus, 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-
With regard to the Trayvon Martin case, the notion that Florida’s Stand Your Ground law prohibited the prosecution of George Zimmerman is fundamentally false. “Stand Your Ground” in no way prevents a prosecution from being initiated against an accused. Prior to forming Hussein & Webber, P.L., I served as an Assistant Public Defender in the Eighteenth Judicial Circuit of Florida, the circuit governing Sanford, Florida. During that time, the State Attorney’s Office for the Eighteenth Judicial Circuit routinely prosecuted defendants in the face of “Stand Your Ground” Motions. In those cases, the prosecutor would file charges, and, at an appropriate stage, defense counsel would file a Motion for Declaration of Immunity and Dismissal [Click Here for an Example]. The matter was then heard at an evidentiary hearing, where the defense had to show its entitlement to immunity by a preponderance of the evidence. If successful, immunity was granted and the case dismissed. If unsuccessful, the prosecution resumed and the case resolved by way of plea or trial.
Nothing about the Trayvon Martin case prevents these procedures from being followed.
Now that the State has decided to pursue charges, George Zimmerman, acting through
his attorneys, may file a Motion for Declaration of Immunity and Dismissal. This
will occur, if at all, once the parties are satisfied that they have sufficient discovery
to conduct an evidentiary hearing. If the Motion succeeds, the case will be dismissed.
If the Motion fails, the case will proceed to trial, where the application of self-
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