Stand Your Ground – Self Defense

Justifiable Use of Force

 

The use of force to protect ones life and or property has been in the news a lot over the past few years in Florida. The reason there appears confusion over what a person can and cannot do to defend themselves and or their property is because of a change in Florida law back in 2005, when the Florida legislature passed the Stand Your Ground law.

 

Prior to 2005, Florida, like most other states, followed what is called common law in this area. This common law gave individuals the right to use deadly force in defending themselves when faced with imminent danger. However, the common law required that the one defending themselves had to attempt to avoid the danger present by retreating if possible.

 

In 2005 the Florida Legislature passed what is commonly called the Stand your Ground Law, which eliminated the requirement to retreat. It is formally called Chapter 776, Justifiable Use of Force, of the Florida Statutes. There have been attempts in the past few years in the Florida Legislature to amend or abandon this law but none have been successful to date.

 

The new law/statute breaks down the Justifiable Use of force into multiple categories, both for civilians/public and for law enforcement personnel. For purposes of this blog we will only be discussing those parts that deal with civilians/general public.

 

Use or Threatened Use of Force in Defense of Person

 

An individual is justified in using or threatening to use force, except deadly force when:

 

  • to the extent that the person reasonably believes that such conduct is necessary to defend themselves or another against the other’s imminent use of unlawful force.

 

  • If such a situation occurs and force is used against an individual, the attacked individual does not have a requirement to retreat before using force against their attacker.

 

An individual is justified in using or threatening to use deadly force when:

 

they 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.

 

  • A forcible felony is:
  • 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;
  • any other felony which involves the use or threat of physical force or violence against any individual.

 

If such a situation occurs and deadly force is used or threatened against an individual, the attacked individual does not have a requirement 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.

 

Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm

 

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:

  • The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or
  • The person against whom the defensive force was used or threatened had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or

 

  • The person against whom the defensive force was used or threatened had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
  • 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.

 

You cannot use or threaten use of deadly force if:

 

The person upon whom the defensive force is used on or threatened with, is a lawful resident of the dwelling, residence or vehicle and there is no injunction for protection (i.e. domestic violence) or court ordered no-contact order against that person, or

  • 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
  • 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
  • The person against whom the defensive force is used or threatened is a law enforcement officer 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.

 

A person who is attacked in his or her dwelling, residence, or vehicle has no duty to retreat and has the right to stand his or her ground and use or threaten to use force, including deadly force

 

 

Use or threatened use of force in defense of property

 

A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortuous or criminal interference with, either real property other than a dwelling or personal property.

 

A person who uses or threatens to use force in defense of property does not have a duty to retreat before using or threatening to use such force.

 

A person is justified in using or threatening to use deadly force only if they reasonably believe that such conduct is necessary to prevent the imminent commission of a forcible felony. (see previous listing above of what is a forcible felony)

 

A person who uses or threatens to use deadly force in defense of property 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.

 

 

Immunity from criminal prosecution and civil action for justifiable use or threatened use of force

 

A person who uses or threatens to use force is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is

 

  • a law enforcement officer,
  • who was acting in the performance of his or her official duties and
  • the officer identified them self in accordance with any applicable law or
  • the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer

 

A law enforcement agency may use standard procedures for investigating the use or threatened use of force, but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.

 

Use or threatened use of force by aggressor

 

The justifiable use of force is not available to a person who:

 

  • Is attempting to commit, committing, or escaping after the commission of a forcible felony (see previous listing above of what is a forcible felony); or
  • Initially provokes the use or threatened use of force against himself or herself, unless:
  • Such force or threat of 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 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 or she 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.

 

Bottom line, if you find yourself in a situation where you use force or threaten to use force against another individual you should as soon as possible contact a criminal defense attorney so that your rights are protected and defended accordingly.

 

Also staying away from situations where you know a confrontation can occur wouldn’t hurt either.

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