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.