Stand Your Ground and Self Defense
Florida Stand Your Ground and Florida Self Defense
What is the Florida Stand Your Ground Law?
Though the news often referstoFlorida’s Stand Your Ground Law as if it were one law, Florida Stand Your Ground is actually made up of 12 separate Florida laws. These 12 laws can be found in Chapter 776 of the Florida Statutes.
For example, one of the Stand Your Ground laws allows a person to use non-deadly force to protect a person, another of the Stand Your Ground law allows a person (under certain circumstances) to use deadly force to defend his or her home, and yet another of the Stand Your Ground laws allow a person to use non-deadly force to defend property.
A person who uses non-deadly force (or threatens to use non-deadly force) in accordance with Florida Stand Your Ground doesn’t have to retreat.In other words, they can stand their ground.
Similarly, a person who uses deadly force (or threatens to use deadly force) in accordance the Florida Stand Your Ground laws doesn’t have to retreat (provided the person is not engaged in a criminal activity and the person is in a place where he or she has a right to be).
Using Non-Deadly Force (Or The Threat of Non-Deadly Force) to Defend Yourself or Others
Under one of the Stand Your Ground laws, a person can use or threaten to use non-deadly force if that person reasonably believes that his use of force(or threat of force)is necessary to defend himself against another person’s imminent use of unlawful force.
For example, suppose that Harry and Tomget in an argument in a parking lot over a minor traffic accident. Harry is a hothead, and he gets so angry that he decides to punch Tom in the nose. Harry pulls his fist back but before he can throw the punch, Tom uses a karate chop and knocksHarry to the ground. Under Florida Law, if Tom reasonably believed that he needed to karate chop Harry in order to defend himself, Tom had no duty to retreat and he should not be arrested nor prosecuted for striking Harry.
Using Deadly Force (Or The Threat of Deadly Force) to Defend Yourself or Others
Under one of the Stand Your Ground laws, a person can use or threaten to use deadly force if that person reasonably believes that their use of deadly force (or threat of deadly force)is necessary to defend themselves against imminent death or great bodily harm or to prevent an imminent forcible felony. Examples of forcible felonies are burglary, aggravated battery, and aggravated assault.
For example, suppose that Harry and Tomget in an argument in a parking lot over a traffic accident. Harry is a hothead, and he gets so angry that he swings a large iron crowbar at Tom’s body. In response, Tom grabs a baseball bat out of his trunk and strikes Harry, breaking his arm.Under Florida Law, if Tom reasonably believed that he needed to strike Harry with the bat in order to defend himself, Tom had no duty to retreat and he should not be arrested nor prosecuted for striking Harry.
Immunity From Arrest
Under Florida law, a police officer may not arrest a person for using force (or threatening to use force) unless the officer determines that there is probable cause to believe that the force that was used (or threatened to be used) was unlawful. The idea, in theory at least, is that when someone uses force or threatens to use force, the police should not arrest first and then ask questions later. Rather, the police should investigate whether or not the person that used or threatened to use the force was justified.
The Florida Supreme Court has stated that there is no bright line test to determine when the probable cause standard has been met. Instead, the Court has noted that probable cause is an elastic concept that requires a fact-intensive analysis.
In a Stand Your Ground case, for the probable cause standard to be met, the officer must have a reasonable ground of suspicion, supported by circumstances sufficiently strong, to warrant a cautious person to believe that the force that was used (or threatened to be used) was unlawful.
Like the old saying that “beauty is in the eye of the beholder,” the officer’s determination of whether or not there is probable cause that the force used (or threatened) was unlawful will depend on the officer’s evaluation and opinion of the facts collected during the investigation. Unfortunately, all too often police officers simply arrest the person that used force to defend themselves– in other words, the police frequently just arrest the person that won the fight.
Going back to our first example, let’s suppose a bystander to the incident between Harry and Tom called 911 and the police arrived to investigate. Further, let’s suppose that several witnesses tell the police that before Tom karate chopped Harry, Harry was moving quickly towards Tom, screaming he would beat Tom to a pulp, with his fists balled, dancing like a boxer. Under Stand Your Ground, unless the officer were to determine that there was probable cause to believe that the force that Tom used(the karate chop) was unlawful, the officer would not be permitted to arrest Tom.
The Stand Your Ground Pretrial Hearing
Even if the police do arrest the person and the prosecutor charges the person with a crime, a defense attorney can request what is called a Stand Your Ground Hearing before any trial ever takes place. At such a hearing, the prosecutor would have to prove to a judge by clear and convincing evidence that the person’s use of force (or threat to use force) was not justified.
The clear and convincing standard is higher than the probable cause standard but less than the proof beyond a reasonable doubt standard used at a jury trial.
Going back to our first example, even if the police had arrested Tom and charged him with battery, Tom’s defense attorney could request a Stand Your Ground Pretrial Hearing. At the hearing, the prosecutor would call witnesses and present other evidence. If the judge were to decide that the prosecutor had not proved by clear and convincing evidence that Tom’s karate chop of Harry was unjustified, the judge would give Tom Stand Your Ground Immunity.
Just as a child that gets the chicken pox vaccine has immunity from the chicken pox virus, if the judge ruled that Stand Your Ground Immunity applied in Tom’s case, Tom would be immune to prosecution and the Judge would dismiss the case.
Claiming Self Defense At A Trial
Even if a judge were to decide the state prosecutor met his or her burden and proved by clear and convincing evidence that the person’s use of force, or threat to use force, was not reasonable, the person could still claim self-defense at a jury trial.
In that case, the burden of proof would still be on the prosecutor, but instead of only having to prove to the judge by clear and convincing evidence that the person’s actions were not justified, the prosecutor would have to prove to a jury beyond a reasonable doubt that any threat or use of force was not justified. If a jury had a reasonable doubt whether or not a person was justified in using or threatening to use force, they should find the person not guilty.
Going back to our first example, at a jury trial the prosecutor would have to prove to the jury, beyond a reasonable doubt, that Tom’s karate chop of Harry was not justified. If the jury had a reasonable doubt whether or not Tom was justified in striking Harry, they would find Tom not guilty. Further, the jurors would have to unanimously agree that Tom’s actions were not justified in order to find him guilty of battery.
Table Comparing A Pretrial Stand Your Ground Immunity Hearing v. A Self Defense ClaimAt A Jury Trial
|Immunity Hearing||Jury Trial -Self Defense|
|Timing||Before Trial||At Trial|
|Burden||The burden is on the State to prove by clear and convincing evidence that the force used or the threat of force was not justified.||The burden is on the State to prove beyond a reasonable doubt that the force used or the threat of force was not justified.|
|Who Decides||The Judge||The Jury (but if the Defendant and State agree to a Bench Trial the Judge can decide)|
Are you looking for the best criminal defense lawyer in Tampa Florida to represent you in a Stand Your Ground Motion?
Tampa Attorney David C. Hardy is a former prosecutor that now represents persons in Stand Your Ground Motions. He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling Stand Your Groundmatters. Attorney Hardy has the knowledge, skills, and experience to guide you through this process and obtain the best possible results.