Almost every day there is a story on the news, in the paper, or on social media that speaks about a situation that involves a person getting shot. In Florida, as well as other states in recent reports, it seems as though some people are literally “getting away with murder”. There was a well publicized incident a few years ago that involved a “neighborhood watch” volunteer who was alleged to have shot and killed an unarmed teenager, claiming he acted in self defense. His attorneys argued, effectively, that their client had the protection of the “Stand your Ground” law. However, most Floridians, and Americans in general, do not have a clear understanding of what the “Stand your Ground” law is. Florida does have a Statute that addresses when the use of force is legally permissible.
So when is it justified to use force? And when is it justified to use deadly force?
Where is the line between self defense and murder, and why do people have a difficult time distinguishing between the two? Florida Statutes section 776.012 provides as follows:
“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; or
(2) Under those circumstances permitted pursuant to s. 776.013”
The circumstances provided in section 776.013 initially address when the force is used against someone who unlawfully and forcibly enters a dwelling (subsections (1) and (2)). Subsection (3), however, addresses the situation where the person attacked is in a place other than a dwelling, and it provides as follows:
“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.” § 776.013(3), Fla. Stat. (2010).
Section 776.032 of Florida Statutes provides immunity from criminal prosecution and civil action for the justifiable use of force as permitted in the sections of Florida Statutes mentioned above (where the use of force is in defense of another).
However, the law clearly goes on to explain that these protections are not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.” Fla. Stat. §776.041 (2010).
Florida law clearly addresses both stand your ground and justifiable use of deadly force. The language is clear that whether applying “stand your ground” or justifiable use of deadly force law, the requirements are nearly identical. Under both sections, a person is justified in the use of deadly force and has no duty to retreat if: (1) he is in a place where he has the right to be; (2) he reasonably believes such force is necessary to prevent death or great bodily harm or the imminent commission of a forcible felony; (3) he did not initially provoke the use of force against himself (he was not the initial aggressor); and (4) he was not himself attempting to commit, committing, or escaping after the commission of a forcible felony. However, if a person is engaged in unlawful conduct or has initially provoked the use of force against himself, that person has the duty to retreat and/or withdraw from physical contact with the assailant and also clearly indicate that he wishes to withdraw and terminate the use of force before he may rely on the defenses available under “Stand your ground” or justifiable use of deadly force.
In deciding whether a person is justified in the use of deadly force, one must take into consideration the circumstances in which he/she was surrounded at the time the force was used. The danger facing the defendant need not have been actual. However, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could have been avoided only through the use of force. Based upon appearance, the defendant must have actually believed that the danger was real.
If a person is not engaged in an unlawful activity and is attacked in any place where he/she has a right to be, he/she has no duty to retreat and had the right to stand his/her ground and meet force with force, including deadly force if he/she reasonably believes that it is necessary to do so to prevent death or great bodily harm to himself.
However, if a person initially provokes the use of force against him by another person (i.e., he was the initial aggressor), he has a duty to “exhaust every reasonable means to escape the danger other than using deadly force,” or to “withdraw from physical contact with the other person and clearly indicate to that person that he/she wants to withdraw and stop the use of deadly force. If, after indicating that a person wants to withdraw and stop the use of deadly force the other person continues or resumes the use of force, then the protections set forth by Florida Law under “Stand your Ground” and the use of deadly force would apply.”
It is important to note that if a person initially provokes the use of force against himself (starts a fight), that person absolutely must make every effort to retreat and clearly indicate to the other person that he/she intends to retreat from the situation. Then, and only then, if that person retreats or clearly indicates that he wants to withdraw from the conflict and the other person continues or resumes the use of force, could the use of deadly force still be legally justified. However, in that circumstance, it must be determined that the one who used deadly force reasonably believed he/she was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other than resorting to the use of deadly force.
If the circumstances surrounding the ultimate use of deadly force are unclear, or if the initial aggressor does not attempt to retreat or make known that he/she wants to withdraw from the conflict, the person who uses deadly force may be charged with second degree murder. The law defines second degree murder as follows:
“The unlawful killing of a human being, when perpetrated by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual” Fla. Stat. § 782.04 (2) (2010).
An act or series of acts is imminently dangerous to another and evincing a depraved mind regardless of human life if:
1. a person of ordinary judgment would know the act is reasonably certain to kill or do serious bodily injury to another; and
2. the act is done from ill will, hatred, spite or an evil intent; and
3. The act is of such a nature that the act itself indicates an indifference to human life. Fla. Std. Jury Instr. (Crim.) 7.4
These laws were enacted to protect law abiding citizens from prosecution in the event that deadly force is used in self defense, or in defense of a 3rd party. However, every person who legally possesses a firearm, or carries any kind of weapon at all, has a great responsibility and must always think before he/she acts and uses that weapon (whatever type of weapon it may be). A knee-jerk reaction could not only end someone’s life, but could result in an arrest of the person who unjustifiably used the force or deadly force.
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