Chances are, you've heard of Florida's Stand Your Ground law at least once in the last 10 years or so. One of the most famous cases regarding it was the George Zimmerman/Trayvon Martin case. But you might still be wondering, what is it really and how does it work?
In 2005, the Stand Your Ground law was passed by the Florida Legislature. Prior to that change, a person could only use non-deadly force to defend against the imminent use of unlawful non-deadly force. He also had no duty to retreat if using non-deadly force. Deadly force was only allowed to defend against imminent deadly force, great bodily harm, or the commission of a forcible felony, but the person had a “duty to retreat” prior to using that deadly force (unless in their home or workplace). The person also needed a reasonable belief that the deadly force was necessary in self-defense. Regardless of using deadly or non-deadly force, though, that person could only raise the defense at trial, after having been arrested and charged with a crime.
The Stand Your Ground law has changed everything. No longer is there a duty to retreat if a person uses deadly force. If a person reasonably believes using deadly force is necessary to prevent imminent death, great bodily harm, or the commission of a forcible felony, that person is justified using that force and does not have a duty to retreat prior to using that force.
Further, the law now grants immunity from criminal and civil prosecutions in cases where the use of force was used. That means, in theory at least, a person could not be arrested or charged with a crime resulting from the use of force. In reality, though, a person is often arrested and charged, with the decision thrust upon the judge to make the immunity determination. This immunity also carries over to civil lawsuits for monetary damages. This does allow a person to raise the defense from the start of a case in an effort to end it, as opposed to only being able to raise the defense at trial as an affirmative defense and hoping the jury agrees.
There are some exceptions to the law, though, which can prevent a person from invoking the Stand Your Ground immunity. In order to be justified in using deadly force, the person cannot be engaged in any criminal activity and must be in a place where s/he has a right to be. For example, a convicted felon (who is precluded from carrying a firearm) cannot seek immunity for using deadly force in self-defense by using a firearm. Another example would be a person committing a crime or breaking into someone’s home to commit a crime cannot claim self-defense in using deadly force.
Invoking Stand Your Ground Immunity
In the criminal context, prior to 2017, a defendant would have to prove by a preponderance of the evidence that she or he was justified in using force in self-defense. That meant the defendant would have to call witnesses and present evidence to convince the judge that by the greater weight of the evidence s/he reasonably believed the force was necessary.
In 2017, the Florida Legislature changed the procedure by which a defendant could invoke the immunity. That change stated a defendant only had to make a “prima facie” showing (on the face there was a reasonable belief the force was necessary) which would then trigger the burden to switch to the state to prove by clear and convincing that the immunity should not be granted. This new burden on the state is much higher than what was required by the defendant prior to 2017, but still lower than the burden at a criminal trial (reasonable doubt).
Hearings seeking to invoke Stand Your Ground immunity have essentially become miniature trials, decided by the judge, and can be complicated by the ever changing burdens and standards that are applied. If you’ve been accused of a crime, whether or not you feel Stand Your Ground immunity applies, contact our office for a free consultation to ensure immediate and aggressive defense of your rights and liberties.
Justifiable Use of Force Statutes
776.012 Use or threatened use of force in defense of person. —
(1) 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 defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
(2) A person is justified in using or threatening to use deadly force if he or she 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 person who uses or threatens to use deadly force in accordance with this subsection 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.
776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 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, as defined in s. 943.10(14), who was acting 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 was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), 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.
(3) The court shall award reasonable 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 as provided in subsection (1).
(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).