Introduction: ‘Stand Your Ground’
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 outlined in Sections 776.012, and 776.013, Florida Statutes, expands the scope of a self-defense claim traditionally available in a criminal case by:
- Eliminating the general of “duty of retreat” imposed at common law;
- Presuming legal justification for the use of force in a person’s dwelling, residence, or vehicle; and
- Offering immunity from prosecution for individuals who resort to force within the parameters of the statute.
In its simplest form, the statute provides that a person is justified in the use of deadly force and has no duty to retreat if either:
- 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
- the person acts under and according to the circumstances set forth in Section 776.013 (presuming a reasonable belief as to the necessity of force in the context of ‘dwellings,’ residences, or vehicles).
Self-Defense at Common Law
The enactment of Florida’s “Stand Your Ground” law in 2005 did not create a new type of affirmative defense with regard to the use of deadly force.
The principle that a 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. Lovett v. State, 30 Fla. 142, 163-64 (Fla. 1892) (reciting 19th century standard that “to excuse homicide there must exist on the part of the slayer an actual necessity to kill in order to prevent the commission of a felony or great bodily harm, or a reasonable belief in his mind that such necessity exists”).
However, prior to the enactment of ‘Stand Your Ground,’ a person could not use deadly force in self-defense without first using every reasonable means within his or her power to retreat from the danger. Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). As stated in earlier appellate decisions, a combatant had to “retreat to the wall” before using deadly force. 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. Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965).
Florida appellate courts recognized one major exception to the ‘duty of retreat’ rule. Known as the “Castle Doctrine,” this exception provided that, where the user of force was not the aggressor and was assaulted in his or her home, the user had no obligation to retreat. Pell v. State, 97 Fla. 650, 665 (Fla. 1929).
Courts later applied the Castle Doctrine to include places of business, but declined to do so in cases involving co-occupants of dwellings and co-workers at a place of business. State v. Smith, 376 So. 2d 261 (Fla. 3d DCA 1979) (applying the Castle Doctrine to places of business); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982) (declining to extend to co-occupants of a residence); Frazier v. Smith, 681 So. 2d 824, 825 (Fla. 2d DCA 1996) (holding that the doctrine was inapplicable to co-workers).
While eliminating the obligation of retreat in a person’s home or place of business, the ‘Castle Doctrine’ nonetheless required the lawful owner or occupant to reasonably believe that force was necessary to prevent death or serious bodily harm. Danford v. State, 53 Fla. 4, 13 (Fla. 1907).
Self-Defense Under Current Law
Rather than creating a new defense, Florida’s “Stand Your Ground” law broadens the scope of a common law self-defense claim by:
- Abolishing the general ‘duty of retreat’ rule, and thereby applying elements of the former “Castle Doctrine” to all places where a person is legally present;
- Presuming legal justification for the use of deadly force in scenarios involving unlawful entries into ‘dwellings,’ residences, or vehicles; and
- Providing potential immunity to defendants where the use of force is shown to fall within the protections of the statute.
Abolishing the Duty of Retreat: All Cases
§ 776.012(2), Florida Statutes, provides that a person is justified in using or threatening to use deadly force if:
[H]e or she reasonably believes that using or threatening to use 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.
As demonstrated above, this portion of the statute is simply a verbatim restatement of common law self-defense principles. The legal ability to use deadly force in order to prevent death or great bodily harm (to one’s self or others) has been the law in Florida (and a majority of States) for well over a century.
The departure from the common law occurs in the discussion of ‘retreat.’ § 776.012(2) specifically provides that:
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 (emphasis added).
Thus, in all scenarios where a person is engaged in lawful activity and is lawfully present, he or she does not owe an attacker a duty to retreat or otherwise disengage. The user of force may stand his or her ground, and resort to deadly force, so long he or she reasonably believes that such force is necessary to avert death or great bodily harm.
At its core, the elimination of the former “duty to retreat” represents an expansion of the “Castle Doctrine” beyond the home to all places where a person is legally present.
Statutory Presumptions: Dwellings, Residences, Vehicles
In addition to abolishing the ‘duty of retreat’ rule, “Stand Your Ground” goes one step further in cases involving dwellings, residences, and vehicles.
Where an unlawful entry occurs (or is in the process of occurring) in these locations, § 776.013(2) creates a presumption that a use of deadly force by the occupant was undertaken with the requisite “reasonable fear of imminent death or great bodily harm.” § 776.013(2) provides:
A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force. . . if:
(a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
The presumption of “reasonable fear” employed in the context of dwellings, residences, and vehicles abandons the Castle Doctrine’s requirement that the user of force affirmatively show that he or she acted under the belief of imminent death or great bodily harm.
In addition to presuming a reasonable belief on part of the victim-occupant, Stand Your Ground imposes a second presumption on part of the person against whom force is used. § 776.013(4) provides:
A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Florida’s Stand Your Ground law provides potential immunity from prosecution for an accused whose actions are shown to fall within the provisions of the statute. The potential for immunity marks another significant departure from self-defense claims at common law.
No Immunity at Common Law
The common law in Florida offered no remedy by which a defendant could pursue immunity from prosecution on the basis of a self-defense claim. The question of justifiable self-defense was a factual question for the jury to resolve at trial. The jury, as the “fact-finder,” decided whether the act was sufficiently justified so as to insulate the accused from criminal liability and punishment.
Prosecutorial Immunity: 2005-2016
Upon passage in 2005, ‘Stand Your Ground’ offered a remedy of complete immunity for defendants whose use of force met the statutory criteria. As stated in § 776.032, a person who used force as permitted by the statute was “immune from criminal prosecution and civil action” for the use of such force (with certain limited exceptions).
The term “immune” meant that, if the accused could factually establish pre-trial that his or her use of deadly force occurred under the circumstances outlined in § 776.012 or § 776.013, the State of Florida would be legally and procedurally barred from further prosecution in the matter.
The procedures for asserting prosecutorial immunity under the initial “Stand Your Ground” provisions were outlined in Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), a Florida First District Court of Appeal decision. Peterson definitively established that Section 776.032 was created by the Florida Legislature to create a “true immunity,” and not merely an affirmative defense.
Peterson held that a defendant may raise the question of statutory immunity at a pre-trial hearing and, when such a claim was raised, the burden of proof would fall on the defendant to show by a preponderance of the evidence that immunity could attach (i.e. that the statutory prerequisites have been met). In Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010), the Florida Supreme Court adopted the decision in Petersen, and the pretrial hearing burden remained with the defendant.
Procedurally, the issue of immunity was raised pre-trial through the filing of a Motion for Declaration of Immunity and/or Dismissal. These motions could be filed individually or consolidated into a single filing. Once filed, the trial court would set an evidentiary hearing, whereupon the defendant would attempt to prove his or her eligibility for immunity by a preponderance of the evidence. If the court granted the motion, a dismissal would ensue. If denied, the prosecution resumed and the case resolved by way of plea or trial.
From a procedural standpoint, the Petersen/Dennis decisions were problematic because they essentially reversed the burden of proof traditionally at play in a criminal case. Unlike a trial, where the burden of proving a case rests with the State, ‘Stand Your Ground’ was interpreted to place the burden on the defendant.
Prosecutorial Immunity: Current Law
In 2017, the Florida legislature amended the ‘Stand Your Ground’ statute to significantly alter the burdens and standards of proof applicable in immunity proceedings.
Instead of placing the entire burden on the defendant, the law now requires a defendant to establish only a prima facie case of self-defense immunity. At that point, the burden shifts to the prosecution to demonstrate by clear and convincing evidence that the defendant does not qualify for immunity.
§ 776.032(4) provides as follows:
In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
Not only does this provision shift the burden of proof to the prosecution, it also raises the standard of proof from “preponderance of the evidence” to “clear and convincing evidence.”
Limitations of ‘Stand Your Ground’
There are multiple statutory provisions limiting the scope and application of Florida’s “Stand Your Ground” law.
Unlawful Presence or Criminality
Under §§ 776.013(1), and 776.012(2), the ‘no duty of retreat’ rule will not apply to persons who are not lawfully present or who are engaged in criminal activity. Eady v. State, 2D15-3153, p.4 (Fla. 2d DCA; October 20, 2017) (concluding that the post-2014 version of ‘Stand Your Ground’ precludes immunity and imposes a duty of retreat for individuals engaged in unlawful activity at the time they resort to the use of force).
Forcible Felony and Initial Aggressors
Under § 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, § 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. Fla. Stat. § 776.041(2)(b).
In the context of dwellings, residences, and vehicles, § 776.013(3) also lists four scenarios where the statutory presumptions of reasonableness will not apply. They include the following:
- The person against whom the defensive force is lawfully present or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder. This exception does not apply where the person is the subject of an injunction or no contact order.
- The person against whom force was used was attempting to remove their child or grandchild, or otherwise possesses lawful custody or guardianship of the child;
- The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity;
- The person against whom the defensive force is used or threatened is a law enforcement officer official duties and the officer identified himself or herself, or the person using force knew or should have known that entering person was a law enforcement officer.