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Florida’s “Stand Your Ground” Law

The Use of Deadly Force, Self-Defense, and Prosecutorial Immunity

In the wake of the Trayvon Martin shooting last February, 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.

Florida’s Stand Your Ground Law: History and Present Scope

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-defense if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm has been the law in Florida for well over a century. See Lovett v. State, 30 Fla. 142, 163-164 (Fla. 1892). Rather than creating a new defense, “Stand Your Ground” broadens the scope of a self-defense claim by establishing a general “no duty to retreat” rule. Prior to the enactment of the statute, a person could not use deadly force in self-defense without first using every reasonable means within his or her power to avoid the danger, including retreat. See Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). As stated in earlier appellate court decisions, a combatant had to "retreat to the wall" before using deadly force. See Hunter v. State, 687 So. 2d 277 (Fla. 5th DCA 1997). This former “duty to retreat” derived from the common law, rather than from statute.

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.

When does Florida’s “Stand Your Ground” Law Not Apply?

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-defense claim altogether. Under Section 776.041, the justifications for the use of force do not apply if the accused is attempting to commit, committing, or escaping after the commission of a forcible felony.

The justifications for use of force will also not apply where the evidence establishes that the defendant initially provoked violence against him- or herself. To claim self-defense in such a scenario, Section 776.041 requires the defendant to demonstrate that he or she used every reasonable means short of deadly force to extricate him- or herself from the situation, and that the degree of force used by the other person (the initial non-aggressor) led the defendant to reasonably believe that he or she was in imminent danger of death or great bodily harm. Alternatively, a defendant who is an initial aggressor may 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. See Section 776.041(2)(b), Florida Statutes.

Procedures: How is Prosecutorial Immunity Pursued?

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-defense claim and how such a claim is typically raised in a criminal proceeding.

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), which would ordinarily subject the accused to criminal liability. In a self-defense claim, the defendant admits the truth of the essential act (i.e. that he or she committed a homicide or other violence against a person), but justifies the act by claiming that it was necessary to save him- or herself from death, great bodily harm, or other unlawful uses of force. In the context of a homicide, a defendant claiming self-defense essentially says: “Yes, I killed. But I did not murder (commit an unlawful killing) because, under the facts and circumstances, my acts were legally justifiable.” Under common law and in most criminal cases today, the question of justifiable self-defense is a factual question for the jury to resolve at trial. The jury is the “fact-finder.” They decide whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.

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-trial that his or her use of deadly force occurred under the circumstances outlined in Section 776.012 or Section 776.013, the State of Florida is legally and procedurally barred from further prosecution in the matter. In the event that a civil action is brought against the person who used qualifying deadly force, a court must award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred in the defense of the case.

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-trial and, when such claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that immunity attaches. Unlike a motion to dismiss, the trial court may not deny a motion for immunity simply because factual disputes exist.

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-trial through the filing of a Motion for Declaration of Immunity and/or Dismissal. To obtain such a declaration by the trial court, a hearing is held where the defendant must demonstrate by a preponderance of the evidence his or her qualifications for immunity. This essentially reverses the burden of proof traditionally at play in a criminal case. The defense presents the evidence, shows that the statutory prerequisites have been met, and requests that the court grant the motion and appropriate relief. If the Motion is granted, the defense then files a Motion to Dismiss, as there is no longer a legal basis to proceed with the prosecution. The Motions for immunity and dismissal are frequently consolidated into a single filing.

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 likely proceed to trial, where the application of self-defense principles under Florida’s “Stand Your Ground” law will be decided by a jury.