Stand Your Ground
Florida's Stand Your Ground law by criminal lawyer Grey Tesh
Self-defense is the clearest of all laws; and for this reason - the lawyers didn't make it. Reported in Bartlett's Familiar Quotations, 10th ed. (1919).
Summary of Florida's Stand Your Ground law
Permits a person to use force, including deadly force, without fear of getting sued or arrested and charged with a crime against a person who unlawfully and forcibly enters the person's dwelling, residence or occupied vehicle. It takes the castle doctrine out of the castle and into the streets.
It abrogates the common law duty to retreat when attacked before using force, including deadly force in self defense or defense of others. This includes even temporary housing, including a tent. It also includes porches at your house.
The castle doctrine applies in the streets and there is no duty to retreat in the streets provided that you have a right to be where you are and you are not engaged in any unlawful activity.
Deadly force (killing someone) and Stand Your Ground under Florida law. When is a person justified in using or threatening to use deadly force?
If he reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony. Does a person have a duty to retreat under Florida's Stand Your Ground law under this scenario? No. There is no duty to retreat and you have the right to stand your ground so long as:
You are not engaged in a criminal activity and
You are in a place where you have a right to be.
Non-deadly force and Stand Your Ground. When is a person justified in using non-deadly force to protect himself?
If a person reasonably believes that using force or threatening to use force is necessary to defend himself against another person's imminent use of unlawful force. There is no duty to retreat before using force or threatening to use force in this scenario.
Can I use deadly force (kill someone) if I am attacked in my home, hotel room, porch, tent, other temporary lodging or car?
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 that is intended or likely to cause death or great bodily harm to another if:
1. 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
2. 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.
When does the presumption of reasonable fear of imminent peril of death or great bodily harm to himself or herself or another not apply?
1. Where the alleged victim has a right to be there or is a lawful resident of the house, or car, truck or vehicle. For instance, They may be the owner, renter or titleholder and there is not a restraining order in place (also called an injunction for protection from domestic violence) or a written pretrial supervision order of no contact against that person or
2. The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; or
3. 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; or
4. The person against whom the defensive force is used or threatened is a cop who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
Do I have a duty to retreat if I am attacked in my house, porch or car?
No. There is no duty to retreat. You have a right to stand your ground and use or threaten to use force, including, deadly force. 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.
What is a dwelling under Florida's Stand Your Ground law?
“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
What is a “Residence” under Florida's Stand Your Ground law?
“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
What is a “Vehicle” under Florida's Stand Your Ground law?
“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
What is a forcible felony under Florida's Stand Your Ground law?
“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
Stand Your Ground and Defense of property (possessions or stuff). Can a person use or threaten to use force, except deadly force, against another person in defense of property?
Yes if that person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. There is no duty to retreat before using or threatening to use force as discussed above.
When can a person use or threaten to use deadly force under Florida's Stand Your Ground law in defense of property?
If he reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony.
Is there a duty to retreat under this scenario?
No, so long as the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he has a right to be.
Motion to dismiss, also called Motion for Declaration of Immunity and/or Dismissal
Procedurally, one of the first motions to be filed in a stand your ground defense is a motion to dismiss. It may also be called a Motion for Declaration of Immunity. The motion to dismiss may be based on charges like 1st degree murder with a firearm, 2nd degree murder, 3rd degree murder, manslaughter, domestic battery by strangulation, felony battery, misdemeanor battery and domestic battery.
Under Florida's Stand Your Ground law, a person is immune from criminal prosecution and from civil suits (getting sued) if the use or threatened use of force was justifiable. There are some exceptions.
Burden of proof at Motion to dismiss/Declaration of Immunity is on the State of Florida, clear and convincing evidence
At the motion to dismiss hearing, the burden of proof is on the State of Florida.
In weighing the evidence, a judge may not deny a stand your ground motion to dismiss simply because factual disputes exist.
The judge must decide the stand your ground motion by confronting and weighing factual disputes. If the case goes up on appeal, the court's factual findings and ruling comes to the appellate court with the presumption that it is correct. The appellate court must interpret the evidence and reasonable inferences and deductions derived in a manner most favorable to upholding the trial court's ruling. Legal conclusions are reviewed anew by the appellate court; there is no presumption that the trial court's legal conclusions were correct.
How is a stand your ground motion to dismiss different from a regular c(4) motion to dismiss?
When the defendant files a regular c(4) motion to dismiss, all the State has to do is file a traverse and the defendant loses the motion. Generally, a traverse states that there are factual disputes between the defendant and the state. However, in a stand your ground immunity motion to dismiss, a traverse by the state may not be used as a defense to a stand your ground motion.
What happens if the stand your ground motion to dismiss based on immunity is denied, i.e. you lose the motion?
There are a few options. One, you can go to trial and still raise the stand your ground defense. Two, you can plead guilty reserving your right to appeal the dispositive motion. Third, and perhaps your best option depending on the facts, you can file a Writ of Prohibition. The Writ would effectively halt or stay the case until the appellate court rules on the Writ.
For instance, if the person against whom the force was used or threatened was a cop acting in the performance of his official duties and the cop identified himself as a cop or the person knew or reasonably should have known they were a cop, there is no immunity.
Even though Florida law provides immunity even from arrest, that is theory. In reality, a person will get arrested, and may be charged for a crime where immunity applies. That's where criminal defense lawyers help.
The police may not arrest a person for using or threatening to use force unless they determine there is probable cause (“PC”) that the force used or threatened was unlawful.
Can a person immune from prosecution recover money if they get sued in civil court?
Possibly, yes. The judge must award attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution. However, this does not apply to criminal cases.
When does Florida's Stand Your Ground law not apply?
Stand Your Ground is not available to a person who is attempting to commit, committing, or escaping after the commission of, a forcible felony.
Stand Your Ground defense is also not available if the person initially provokes the use or threatened use of force against himself, unless:
-Such force or threat of force is so great that the person reasonably believes that he is in imminent danger of death or great bodily harm and that he has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or
-In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.
Can you get your record sealed or expunged if you win under Florida's Stand Your Ground law?
If the government dismisses an information, indictment (charging document) or no-files the case (they don't file a charging document) because you acted in lawful self defense under Florida's Stand Your Ground law, you may be eligible to get the case sealed or expunged. This is true regardless of whether you have a prior sealing or expungement. Note this is an exception to the general rule that you can only get one case sealed or expunged. If your case is dropped, the state attorney must document the file. If you win via a pretrial motion to dismiss (because of immunity usually) the judge must write and file a written order documenting the stand your ground issue and put it in the court file. Even though Florida law allows this, it is still within the discretion of the judge to grant the sealing or expungement. After handling thousands of criminal cases, I've never seen a judge deny a request for sealing or expungement if the person was otherwise eligible. In short, yes, it may be possible to get a Stand Your Ground case sealed or expunged even if you have a prior sealing or expungement. However, you can have no prior adjudications.
Can cops claim a Stand Your Ground defense in alleged excessive use of force when arresting or attempting to arrest someone?
Possibly, yes. A cop or anyone the cop has asked or told to help him, does not need to retreat or stop from efforts to make a lawful arrest because of resistance or threatened resistance to arrest. Note it must be a LAWFUL arrest. There must be probable cause for the arrest. The cop can use any force he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. Also, he can use any force when necessarily committed in retaking felons who have escaped or felons fleeing from justice.
Can cops claim a defense under Florida's Stand Your Ground law in a civil action for damages?
Possibly, yes. The issues will be whether the use of deadly force was necessary to prevent the arrest from being defeated by flight and when feasible some warning had been given and whether the officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or the officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.
How do you win a Stand Your Ground defense before trial?
A motion to dismiss is made pretrial. The motion to dismiss is based on immunity from prosecution. Florida's Stand Your Ground law creates an immunity from prosecution for those who use force as permitted by Florida's self defense statutes. If the use of force was reasonably justified, an accused is immune from prosecution. The reasoning behind it is that the person never should have been arrested in the first place. A claim of immunity from prosecution may be raised at any time according to Florida Rule of Criminal Procedure 3.190(c)(3).
What charges can be beat via a Stand Your Ground defense?
Stand Your Ground is a valid defense under Florida law to violent charges like first degree murder with a firearm, second degree murder, aggravated battery with a firearm, aggravated assault, battery, felony battery, domestic battery or domestic battery by strangulation. There was a cartoon I saw in the New York Times that made fun of the Florida “Stand Your Ground” law. It said -and I am paraphrasing - if you are standing on ground, you can shoot anybody you want. They key to whether self-defense is a successful defense depends, in part, on how reasonable the jury thinks the client's actions were.
Stand Your Ground jury instructions
In the Florida jury instructions, it is called “justifiable use of non-deadly force” when nobody dies and “justifiable use of deadly force” when someone dies. Generally, the client must have reasonably believed his conduct was necessary to defend himself against the alleged victim's imminent use of unlawful force against the client. It could be against another person too – that brings in the defense of others. Also, the use of unlawful force by the alleged victim must have appeared to the client to be ready to take place.
There is no duty to retreat in Florida. If a client was not doing anything illegal and was attacked in a place they had a right to be – home, car, sidewalk, etc., there is no duty to retreat. You can stand your ground and meet force with force, even deadly force if the client reasonably believed it was necessary to do so to prevent death or great bodily harm to himself or someone else or to prevent the commission of a forcible felony.
The jury must judge the client by the facts and circumstances that surrounded him at the time the force was used. No Monday morning quarterbacking is allowed. The danger facing the client does not need to be actual. It must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based on appearances, the client must have actually believed that the danger was real.
The jury should take into consideration how big - physically the client is - and his capabilities versus how big the complaining witness is in determining whether the self-defense was reasonable.
If the jury is left with a reasonable doubt on the issue of self-defense, they must find the client not guilty.
Appeal for Stand Your Ground case
The proper procedure if you lose a Stand Your Ground case is to file a writ of prohibition in the appellate court.
"Arms in the hands of individual citizens may be used at individual discretion in private self-defense." (John Adams, A Defence of the Constitutions of Government of the United States of America [1787-1788])
“Law is not black or white, it's Grey”
Board certified criminal trial lawyer Grey Tesh handles Stand Your Ground motions and defenses for violent cases like murder all over Florida. Although Grey is based out of West Palm Beach, Florida, he can handle Stand Your Ground defense cases in Miami, Fort Lauderdale, Jacksonville, Orlando, and Tampa.