The self-defense law was recently amended by Governor Rick Scott.
Florida Governor Rick Scott signed into law this month an amended “Stand Your Ground” law. This new amendment makes it easier for defendants to successfully claim they were protecting themselves in a violent situation.
Before this amendment, the law required defendants to prove they were using force in self-defense. The new law shifts the burden of proof in pre-trial hearings to prosecutors, rather than defendants, to prove whether such force was used lawfully. Florida actually became the first state to require the prosecutors to have the burden of proof with “Stand Your Ground” hearings.
Many states have had for many years what has been known as the “castle doctrine,” allowing people to use deadly force to defend themselves in their own homes. However, in 2005, Florida actually expanded the law so that even when outside their home, a person has no duty to retreat and can “stand his ground” anywhere they are legally allowed to be. Since then, these defenses have become much more common in pre-trial hearings and during trials. Cases of note near the Tampa Bay area include the Trayvon Martin case and the Curtis Reeves “movie theater shooting” case in Pasco County.
The expanded “Stand Your Ground” law provides that a person is justified in the use of deadly force and has no duty to retreat if either:
(1) the person reasonably believes that 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; or
(2) the person acts under and according to the circumstances set forth in Section 776.013 (pertaining to the use of force in the context of a home or vehicle invasion) (Florida Statutes 776.012 and 776.013).
Florida’s “Stand Your Ground” law does not create a new type of defense. The principle that a person may use deadly force in self-defense, if they reasonably believe that such force is necessary to prevent imminent death or great bodily harm, has been the law in Florida for over 100 years. The “Stand Your Ground” law broadens the scope of a self-defense claim by establishing a general “no duty to retreat” rule. Prior to the enactment of this law, a person could not use deadly force in self-defense without first using every reasonable means within their power to avoid the danger, including retreat.
The “no duty to retreat” rule goes another step further in cases involving home or vehicle invasions. Florida Statute 776.013 states that when an intruder unlawfully enters, attempts to enter or refuses to leave a dwelling, residence, or vehicle owned or lawfully occupied by another person, the owner or occupant is presumed to have held a reasonable fear of death or great bodily harm so as to justify the use of deadly force. The intruder is also presumed to be doing so with the intent to commit an unlawful act involving force or violence.
When does the “Stand Your Ground” law not apply?
Under the statute, the “no duty of retreat” rule will not apply in certain situations. One is when a person is engaged in an unlawful activity or is in a place where he has no right to be. (Florida Statute 776.013(3)). Also under the statute, the use of deadly force (or a claim of “self-defense”) does not apply if the accused person is attempting to commit, committing, or even fleeing or escaping after the commission of a forcible felony (Florida Statute 776.041). It also will not apply if the accused initially provoked the violence against themselves, unless such force or threat of force by the initial non-aggressor is so great that the person reasonably believes that they are in imminent danger of death or great bodily harm and that they have exhausted every reasonable means to escape such danger, other than the use or threatened use of force likely to cause death or great bodily harm to the assailant.
However, a defendant who is an initial aggressor may claim self-defense if:
(1) In good faith, they withdrew from physical contact
(2) Clearly indicated to the other person that they desired to withdraw and terminate the use of force
(3) Despite the clear indication and withdrawal, the other person continued or resumed the use of force. (Florida Statute 776.041(2)(b)).
(Editor’s note: Miami-Dade Circuit Judge Milton Hirsch ruled the updated law unconstitutional Monday. The Attorney General’s office has since announced plans to appeal the ruling.)
Shiobhan Olivero was born and raised in Plant City. Her law office can be reached at (813) 534-0393 or by email at SOlivero@oliverolaw.com.
