When a person in Florida uses force against another, it may result in a
criminal charge such as Assault, Battery, Manslaughter or Murder, just
to name a few. However, it is a defense to such a charge if the person
accused of using force was justified in doing so. Florida law defines
the justifiable use of force in Chapter 776, of the Florida Statutes.
Traditionally, the justifiable use of force in Florida was known as “self-defense”
or the “defense of others”. The traditional “self-defense”
aspect of the law is still available. Under the old law, a person had
a duty to retreat, if possible, and could not defend a home/property with
force. The defense had to be asserted as an affirmative defense at trial only.
Florida’s so called “Stand your Ground” law allows for
the defense of yourself or another without a duty to retreat. It creates
a presumption that a person in a home is in reasonable fear of imminent
harm when someone unlawfully enters their home, and therefore is justified
in the use force. The law even extends outside the home when it states
that if a person is not engaged in an unlawful activity and is attacked
while in a place where the person has a right to be, he may stand his
ground and have no duty to retreat- and may meet force with force, including
deadly force, if he reasonably believes it necessary to do so to prevent
death or great bodily harm to himself or another, or to prevent the commission
of a forcible felony.
Furthermore, a person who asserts the Stand Your Ground law has a right
to a pre-trial judicial determination as to whether he falls under the
protection of the law; and, if so, he is immune from prosecution and may
recover money damages if wrongfully arrested or prosecuted for the use
of force under such circumstances.
Practically, this allows an attorney to seek to avoid the arrest and prosecution
of a client who is accused of the unlawful use of force. Even if a client
is arrested, a motion may be filed with the court to have the client declared
immune from prosecution. This way we can get a hearing with the Judge
and if we prove by a preponderance of evidence that the use of force falls
under the Stand Your Ground law, the case must be dismissed. If successful
the client never faces the risk of a jury trial.
If the judge isn’t willing to dismiss the case based on the Stand
Your Ground Law, an attorney may still assert a traditional affirmative
defense of justifiable use of force, such as a self-defense claim, at trial.