Florida’s “Stand Your Ground” Does Not Mean What You Think It Does

NOTE: Nothing in this post is meant to be legal advice. If anyone acts on what they perceive to be advice, does so at their own peril. Also, as you will see, one does not want to find themselves having to utilize this defense. Lastly, the law cited is Florida Law.

This post is NOT about Trayvon Martin or George Zimmerman. The events that occurred a few month ago in Sanford, FL are in the capable hands of the Special Prosecutor, Defense Attorney O’Mara and Judge Lester. The post is meant to clarify misconceptions surround Florida’s “Stand Your Ground” law. The intent is to raise the level of discourse beyond race and misinformation about the law. The need for a higher level of discourse is fueled by the need to stem the hystera and to remove the sting from opportunistic “news” story. The Law has been featured twice in centeral Florida in the last year. Trayvon is a nation story. The other story involved a bouncer in a local bar in downtown Orlando. One can speculate as to why the latter story was not a national sensation.

Fla. Stat. 776.013 is Florida’s “Stand Your Ground” law. The law encompasses events that may occur within the home, vehicle or in public places. Most of the law mirrors the “Castle Doctrine.” As most would expect, if someone breaks into your home or vehicle (in Florida this is a burglary and is considered a forcible felony regardless of the facts) the owner or rightful inhabitants can use deadly force against the burglar.

The controversial portion of “Stand Your Ground” is found at Fla. Stat. 776.013(3):

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

Subsection (3) eliminates the necessity to treat. However, the law is not absolute. Also, the law relies on the facts of any given situation. In order to prevail on “Stand Your Ground” a suspect must:

1) Be engaged in a lawful activity

2) Be attacked in a place where he/she has a right to be

3) The force used must only be the force needed to repel the attack

In most instances this is an affirmative defense that must be established by the accused. Thus, unlike the media portrayal, it does not provide the right for Floridians to have duels at high noon in the city streets. Each case is different and each set of facts are different. It is difficult to predict whether the defense will be substantiated. Unfortunately, shootings and other victim crimes do not occur with a gallery of witnesses. The case, generally, will turn on the credibility of the accused and other corroborating evidence. However, even when there is  surveillance footage, the issue can be murky.

Typically, “Stand Your Ground” is brought as a Motion to Dismiss. At this point, the accused must swear to the facts alleged that establish the legality of their actions. The judge is then required to make a determination as a matter of law whether “Stand Your Ground” applies. If the defense is granted as a matter of law, then the person is immune from criminal and civil prosecution. Fla. Stat. 776.032. If the Motion is denied then the accused has two options: 1) appeal or 2) raise the issue at trial. The jury can still acquit the accused based on the defense. The jury will never know that the Motion was denied. Thus, the jury can utilize the facts presented and determine the accused’s actions were justified. Known by another name, this is SELF DEFENSE.

The last wrinkle in the matrix of whether “Stand Your Ground” applies is whether the accused was the aggressor.

776.041 Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:

    (a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has 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; or
    (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
(emphasis added).
If the person asserting “Stand Your Ground” is found to be the aggressor, then they must MUST attempt to retreat or “exhaust  every reasonable means to escape.” The aggressor does not have the right to stand his ground. Thus, if you are or maybe determine to be the aggressor, it is probably best to remove yourself from the situation before the situation – that you created – leads to the death or injury of the person. Essentially, you are not allowed to start a conflict then end the conflict with violence.
In summation, “Stand Your Ground” is not a radical law that discounts well founded theories of self-defense. The law extends the “Castle Doctrine” to places where a person is legally allowed to be. Logically, this is a natural extension and an extension that most accept. Most want to feel safe in defending themselves on the street. One does not want to have to run from a bullet. Rather, most want to be allowed to defend force with force.
Commentary: There is nothing wrong with Florida’s “Stand Your Ground” law, regardless of the political witch hunt. The Law is not why the Trayvon is dead. The Law is not why the bouncer, Torres, is dead. It is doubtful, the accused made a conscious thought that “I am free to use deadly force because the Florida legislature passed a law in 2005 that allows me to stand my ground.” More likely, the accused acted in an instant without this level of decision-making. So, even without the Law, the tragic events that lead to deaths around the state would still have occurred. Thus, it is short-sighted and naive to think repealing the law will change anything. In fact, it will probably change the landscape for the worse. Those that are justified in using deadly force with be forced to navigate the criminal justice system and costly civil litigation. “Stand Your Ground” is meant to protect the justified, not to provide an excuse for anyone with a gun to kill his neighbor. Again, hopefully, this will allow the discussion to be elevated beyond hysteria over the law.

10 Responses to Florida’s “Stand Your Ground” Does Not Mean What You Think It Does

  1. Stephen says:

    While I understand your view on “Stand Your Ground” laws generally, I believe the Florida law does, in fact go beyond similar laws passed in other jurisdictions. In pertinent part, the statute authorizes a person to use deadly force “if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

    Forcible Felony is defined under 776.08 to include, inter alia, ” treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary;…” The issue with the Zimmerman case is not “Stand Your Ground” per se, but this seemingly extreme expansion of the types of perceived offenses that warrant the use of deadly force. From what we know about the case thus far, Zimmerman was aware of several burglaries in the neighborhood, and that he believed Martin was about to engage in such an act.

    By contrast (and I chose this simply at random from a list of states with “Stand Your Ground” statutes, Pennsylvania’s “Stand Your Ground” law states:

    An actor who is not engaged in a criminal activity, who is not in illegal possession of a firearm and who is attacked in any place where the actor would have a duty to retreat under paragraph (2)(ii) has no duty to retreat and has the right to stand his ground and use force, including deadly force, if:
    (i) the actor has a right to be in the place where he was attacked;
    (ii) the actor believes it is immediately necessary to do so to protect himself against death, serious bodily injury, kidnapping or sexual intercourse by force or threat.”

    You can see the problem here. There is a vast difference between a perceived threat against oneself of death, injury etc. and a perceived threat generally of “forcible felony.”

    A law that permits any person to use deadly force to prevent the commission of a “forcible felony”, including burglary, is I believe the definition of legalized vigilantism. That is the troubling implication of this particular “Stand Your Ground” statute.

  2. Mark TImney says:

    The media shares the blame here, but remember it’s not promoting this ‘witch hunt.’ It’s primarily passing along misinformation from Florida’s police officers, politicians and lawyers who object to the law.

  3. Derek says:

    You keep using this term, “Stand your ground.” I do not think it means what you think it means…

  4. markkernes says:

    The above is interesting as far as it goes, but the important thing that’s left out here, which I remember most about the Martin killing, is that the police who arrived on the scene didn’t even take Zimmerman into custody right away, which they clearly should have done and let him plead “stand your ground” later. As you say, it’s an affirmative defense, but the cops are not judge and jury, and a courtroom is the proper venue to make that defense.

    Hence, I think the argument could be made that the “stand your ground” law is flawed to the extent that it seems to encourage police to act as judge and jury regarding its proper or improper implementation.

    • blevinsj says:

      As stated above, this is not about Trayvon.

      However, to your point, I agree. SYG is an affrimative defense. Affirmative defenses do not defeat probable cause…But, keep in mind that in reality LEO are the mechanism that has discretion whether to make an arrest. Generally, I think we want LEO to utilize some discretion in arresting people.

      However, LEO did take Zimmerman in for questioning voluntarily. When he agreed to talk to LEO he asserted the facts that be believed exonerates him.

  5. Richard says:

    Thank you for this explanation.

    When I first heard about the SYG laws in local media, my initial reaction was “but surely someone can’t pick a fight and then claim SYG against retaliation”, and I’m glad to see that I was apparently correct.

    • blevinsj says:

      SYG is not being reported correctly anywhere. That is why I thought this was important.

      While this does not provide the complete landscape of the law (ie case cites), SYG is more limited than anyone is willing to report.

      Spread the word.

  6. CLH says:

    Awesome post. I remember thinking of the similarities between Texas and Florida law when this story was first reported, so I researched both, and some case law for both. And then I watched the media frenzy, and went “Huh?” The media makes my brain hurt. Can I sue them for stupidity, the effect of which is permanent brain damage?

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