Dear Clients, Members and Friends:
In light of the national controversy surrounding the recent shootings in the headlines, possessing and carrying a gun for self-defense has become a hot topic for discussion. The Trayvon Martin Case first hit us at home in Sanford, Florida, and most recently, a mass shooting was thwarted at the University of Central Florida in Orlando. These events have generated a heated debate both locally and nationally concerning Florida's "Stand Your Ground" law. In this newsletter, we will explore, not only the state of the law today, but also the history and legal theory from which the "Stand Your Ground" law evolved, called the "Castle Doctrine."
Three Basic Consequences of The Florida Castle Doctrine and Stand Your Ground Laws
One: They establish, in law, the presumption that a criminal who forcibly enters or intrudes into your home or occupied vehicle is there to cause death or great bodily harm, therefore a person may use any manner of force, including deadly force, against that person.
Two: They remove the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or others [this is an American right consistently recognized in Supreme Court gun cases].
Three: They provide that persons using force authorized by law shall not be civilly or criminally liable for using such force.
The Evolution of the Castle Doctrine into Florida's Stand Your Ground Law
When individuals try to conjure up discussions about the Stand Your Ground law and self-defense, what is usually missing from the discussion is the history behind the so-called Castle Doctrine. The "Castle Doctrine" is derived from a 16th century English Common Law that establishes "the Englishman's home is his castle" and just like any King or Queen a person is not required to retreat from his or her castle. After the colonies were established in America they removed the term Englishman making it "a man's home is his castle."
More so, the common law recognized two kinds of self-defense. Justifiable homicide protected a defendant who was, without any fault of his own, attacked by another. This doctrine evolved from questions about the legal guilt of an executioner. After all, the hangman or the axman intentionally takes a life. But he was "justified," medieval courts held, because the king ordered him to do it. What then of the innocent victim who fights back against an attacker and kills? Well, the fiction grew up that the victim was also the king's executioner-a "true man" in the legal sense-meaning not a manly man but, in the words of the Oxford English Dictionary, "an honest man (as distinguished from a thief or other criminal)."
But there was another offense at common law, called "chance-medley." That offense occurred when two people got into an avoidable quarrel-in a pub, say-that graduated to violence. These quarrels could easily escalate. If one party to a chance-medley attacked the other, the person attacked might end up with the choice of killing or being killed. When the party attacked killed the attacker, he or she might claim self-defense-but only when the evidence showed that the eventual killer had tried to break off the encounter, or "retreat." Even then, the killer was not justified but merely "excused." Sir William Blackstone, writing in the 1770s, explained that "the law sets so high a value upon the life of a man that it always intends some misbehavior in the person who takes it away, unless by the command or express permission of the law." Under that rule, a defendant who provoked and pursued a quarrel until it became violent could not then claim "self-defense"-that was not being "true" in the legal sense.
When the common law migrated to America, chance-medley fell by the wayside. Americans liked the idea of going about armed. In addition, Americans thought of society not in terms of obligations to the king but in terms of individual rights. So the right to "stand your ground" began to spread-not only from the home to the pub but also from the "true" to the "shady." A century after Blackstone, an Indiana court noted that "the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life."
No longer did someone invoking self-defense need to show clean hands-even if, in a moral sense, his hands were filthy. So, in the recent Florida case of State v. Gallo, a defendant won an immunity motion after he confronted the victim in a nightclub parking lot and angrily demanded repayment of a debt. "As tempers flared the argument became more physical," the state appeals court wrote. "Eventually the minor tussling stopped and more serious threats began. The situation reached a climax, breaking out into a gunfight between at least four men in the middle of the street. Men were ducking behind cars and firing over their shoulders as they ran for cover." The court even started its opinion by stating that "Mr. Barbour's unfortunate death resulted from events reminiscent of the 'Shootout at the OK Corral.'"
While we at U.S. Law Shield recommend that this type of confrontation be avoided where possible, the defendant Gallo garnered the protection of the law and his charges were dismissed after an extensive evidentiary hearing.
Florida's version of the Castle Doctrine is found in Section 776 Florida Statutes. On March 23, 2005, The Florida Senate passed SB-436, the "Castle Doctrine" unanimously, by a vote of 39 YEAS to zero NAYS. On April 5, The Florida House passed SB-436, "Castle Doctrine" by a vote of 94 YEAS to 20 NAYS, a margin of better than four to one.
On April 26, 2005, former Governor Jeb Bush SIGNED SB-436, the "Castle Doctrine" into law (Chapter No. 2005-27). It took effect on October 1, 2005. This has come to be known as Florida's Stand Your Ground law and defense.
In 2005 the Florida Legislature created the "Stand Your Ground Law" with Florida Statute §776.012-013. This law was created to allow a person to use deadly force in defense of their home, automobile and person without the need to retreat or to fear criminal prosecution or civil liability. Before the "Stand Your Ground Law" the case law that had developed in Florida provided that, a person could not resort to deadly force without first using every reasonable means within his or her power to avoid the danger. In other words if backed into a corner, and no further retreat was possible, then and only then could deadly force be used. The only exception to this was if a person was in their own home, also known and discussed previously as the Castle Doctrine.
So What Exactly is Florida's Castle Doctrine?
To start with, under Florida Law if a person is in reasonable fear of imminent death or serious bodily injury, a person is legally justified in using deadly force.
The Florida Castle Doctrine will impose a legal presumption that a person was in fear of death or great bodily harm (if he or she uses deadly force) if the person against whom the deadly force was used was unlawfully and forcefully entering or had entered a dwelling, residence or occupied vehicle. Further, the law imposes a presumption of fear of death or great bodily harm and the right to use deadly force also applies if the person whom the force was used against had removed or was attempting to remove another person against their will from a dwelling, residence, or occupied vehicle (to prevent kidnapping and carjacking).
What is Florida's Stand Your Ground Law and Is the Media's Portrayal Correct?
Unlike the law's portrayal in most media reports, Florida's "Stand Your Ground Law" does not allow one person to hunt another down and kill them, nor does it permit one person to open fire after a minor shoving match. The law only allows a person to use deadly force in certain instances.
Media coverage of Florida's self-defense laws in recent months has often been highly inaccurate. So let's take a look at what the Florida laws actually say.
Fla. Stat. § 776.012. Use of force in defense of person
A person is justified in using 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. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she 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;
So the general rule is that deadly force may be used only to prevent "imminent death or great bodily harm," or "the imminent commission of a forcible felony." A person may only use deadly force if he "reasonably believes" that these factual conditions exist. These standards are the norm throughout the United States.
Under, §776.012 there is also another set of circumstances in which deadly force is permitted:
(2)Under those circumstances permitted pursuant to §776.013
Fla. Stat. §776.013. Home protection; use of deadly force; presumption of fear of death or great bodily harm
(1) 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 defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used 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
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) 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
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), 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 force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
The home/automobile law allows the use of deadly force against intruders who unlawfully enter the victim's home or occupied automobile. The law makes specific exceptions if the intruder has a legal right to be there, or is lawfully exercising child custody rights, or if the person in the home/automobile is engaged in illegal activity, or if the intruder is law enforcement officer who has identified himself as such.
Next is the issue of retreat:
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
The next part of the Florida Statute concerns protection of property and protection against forcible felonies, under the title of "Use of force in defense of others." Fla. Stat. §776.031:
A person is justified in the use of 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 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. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
Deadly force is permitted only when "reasonably" believed "necessary to prevent the imminent commission of a forcible felony." The no-retreat rule is the same as for self-defense.
How Does the Stand Your Ground Law Apply to you?
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no legal duty to retreat and has the legal right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
The key here is that if the individual REASONABLY BELIEVES they are in danger of death or serious bodily harm, they are justified in using deadly force. They do not actually have to be in danger - it merely states they reasonably believe so. The problem is that what constitutes "reasonable belief" is not defined, and can be extremely subjective. For instance, we've all heard stories where a police officer shoots an unarmed person because they thought they were reaching for a weapon. This would be an example of a person in reasonable fear of death or serious bodily injury but in reality the threat in fact did not rise to that level. However, the law only looks at whether there existed a reasonable fear in the person defending themselves. If there was that reasonable fear, the law says the person's conduct is legal.
Florida law provides some criminal and civil protections for persons who have lawfully used force against a criminal attack.
Fla. Stat. § 776.032. Immunity from criminal prosecution and civil action for justifiable use of force
(1) A person who uses force as permitted in s. 776.012 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used 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 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 of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
Under the laws, in order to arrest and prosecute an individual, law enforcement must have probable cause to believe that they have broken the law. This statute does not actually change the law, but it apparently is effective at reminding law enforcement officers of the standard they are required to obey. Regarding arrests, the United States Constitution requires that "The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the . . . persons . . . to be seized." As judicially interpreted, the Fourth Amendment does not require a warrant for some arrests, but the probable cause requirement remains enforceable. The rule in American law (even if it is often overlooked or ignored) is that a police officer must have "probable cause" in order to arrest someone.
Florida law also attempts to provide deterrents against plaintiffs bringing lawsuits against persons that have used legally justified force. Section §776.032 further provides:
(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).
Therefore, if a lawful defender is sued, then the court is required to award attorney's fees and costs to the victim of the improper suit, who was, of course, also the crime victim.
How does the immunity work in a practical sense?
If a person who uses deadly force under the "Stand Your Ground Law" or "Castle Doctrine" is prosecuted for a crime and asserts immunity during a pre-trial hearing, the burden is placed on that person to show by a preponderance of the evidence that the immunity attaches.
In simple terms, a person may use deadly force if attacked in his or her home, in the home of another where they are a guest, or when in a motor vehicle when another is attempting to or has unlawfully and forcibly entered said home or motor vehicle. Further, they have no duty to retreat before using deadly force if they are at any place they have a right to be. The prior duty to retreat is no longer applicable and a presumption has been created against civil and criminal liability for the use of deadly force in situations covered by the "Stand Your Ground Law."
It also prohibits criminals and their families from recovering money from victims for injuring or killing the criminals who have attacked them. The Florida law extends the "Castle Doctrine" by allowing residents to shoot someone they feel is an imminent threat anywhere they have a lawful right to be -- in your home, car or outside.
As you can see, the Florida versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises and many lawyers' careers, so obviously this article is only a brief overview. I hope, however, this newsletter provides you with a better understanding of both of these legal topics, and if you have any questions about Florida firearms laws, do not hesitate to contact us.
David S. Katz & James D. Phillips, Jr.
Senior Firearms Program Attorneys