Florida’s Stand Your Ground Law and the Use of Deadly Force as a Defense in Criminal Law

In 2005, the State of Florida enacted what is commonly known as Florida’s “Stand Your Ground” law. In the time since this criminal law was enacted, the law has faced enormous criticism and protest. Ignorantia legis neminem excusat, or “ignorance of the law excuses no one.” This is a deeply-rooted criminal legal principle which all American courts follow. With the enormous amount of commentary regarding Florida’s stand your ground law, it is important to understand what the law says and where it came from in order educate and protect yourself and loved ones. Additionally, certain jurisdictions and counties within Florida may apply and interpret the rules differently, so it is critical to consult with a local attorney or lawyer to discuss the particulars of your case.

Common Law Self-Defense

Stand your ground has its roots in common law self-defense. Self defense is an affirmative defense in which the Defendant, through their attorney, would affirm that, “Yes, I committed the act but it was justified.” Under the common law rule, a person is entitled to use a reasonable force to prevent imminent harmful or offensive bodily contact As has been the subject of much criticism, the claim of self defense may be used not only when there is an actual threat of harm, but also where the Defendant reasonably believes that there is an imminent threat of harm. It is important to note that this is a reasonable subjective belief. For the purposes of illustrating this point, let us assume the following facts:

Two men, the Victim and Defendant, get into an argument which escalates to the point where the Victim pulls out a gun. The Defendant, upon seeing the Victim brandish a gun, pulls out a firearm and shoots; killing the victim. During the ensuing police investigation, it is discovered that the victim was in possession of a toy gun which he took from his child’s toy box.

Although there was no actual threat to the Defendant, it was reasonable for the Defendant to hold the belief that the gun was real and his life was in danger at the time he used the deadly force. Note that because this is a subjective belief, actual knowledge could defeat the Defendant’s claim that his belief was reasonable. To add to the facts above, if the Defendant saw the Victim take the gun from his sons toy box and knew that the gun which the Victim had brandished was the same toy gun, he may not claim that he held a reasonable, subjective belief that his life was in danger because he had actual knowledge that the gun was not harmful.

Degree of force under Florida Criminal Law

Though we have focused on deadly force for the purposes of this article, it is important to note that under common law, the Defendant may only use the degree of force necessary to prevent the threat, but may not use excessive force or escalate the situation. Under Florida common law, deadly force may only be used where the Defendant is in danger of death or serious bodily harm.

Duty to Retreat

Generally speaking, common law required a person to retreat if it they can avoid using deadly force without increasing their own peril. If retreating would increase the level of danger, or if the threat is such that it places the person in imminent danger of death or great bodily harm, there is no duty to retreat. Florida has long held that there is an exception to this general duty to retreat rule where a person is violently assaulted in his home or the premises hear his home. This exception has also been applied to instances where one is attacked at his place of business.

Florida’s Stand Your Ground Law

Florida’s current “Stand Your Ground” law makes a few noteworthy changes to common law self defense which are important for all Floridians to understand.

First, the law establishes that a person is presumed to have held a reasonable fear of imminent death or great bodily harm when they used deadly force in a number of circumstances. This presumption arises when the Victim was in the process of or had already unlawfully and forcefully entered your dwelling, residence, or occupied vehicle or attempting to remove another person, against their will, from that location. However, this presumption does not arise where the Victim had the right to be in or was a lawful resident of the dwelling, residence or occupied vehicle. This is not to say that the claim of self defense would not be permitted in those circumstances, but there will not be a presumption of reasonable fear. Furthermore, the presumption will not arise in situations where the person claiming self defense is engaging in illegal activity or using the home or car to further illegal activity. Moreover, if you knew or should have known that the person entering your home was a law enforcement officer performing their official duties, the presumption will not arise.

Secondly, Stand Your Ground eliminated the duty to retreat if you are attacked while lawfully in a place where you have the right to be. If that situation were to arise, you no longer have a duty to run away before you can use deadly force, but rather may stand your ground and meet force with force, including deadly force if you reasonably believe that deadly force is necessary to prevent death or great bodily harm to yourself or others or to prevent a forcible felony. Please note, although this law eliminated the duty to retreat in places outside of your home, there is no presumption of reasonable fear under the statute.

Lastly, the law provides immunity from criminal and civil proceedings which stem from the use of force to anyone who is justified in their use of deadly force under the statute.

If you or a loved one is in fear for your life, first and foremost call the police immediately to ensure everyone’s safety. Arcadier, Biggie & Wood, PLLC is a full service law firm located in Melbourne, Florida and proudly serves its clients in Brevard County and throughout the Great State of Florida. If you are in need of legal representation, please call our office to set up a consultation where we can evaluate your case and discuss your options.