This article was written by guest author Rory Bahadur, Associate Professor of Law at Washburn University School of Law.
The recent news media coverage of the so called “Florida Stand Your Ground Law,” illustrates succinctly the sleight of hand that selective nomenclature sometimes facilitates. The so called “Stand Your Ground Law” is actually a combination of three separate statutes and the stand your ground provision is perhaps the least radical and controversial. These statutes are as follows:
- Fla. Stat 776.012 titled “Use of Force in Defense of Person.”
- Fla. Stat. 776.013 titled “Home Protection; Use of Deadly force; Presumption of Fear or Death or Great Bodily Harm”
- Fla. Stat. 776.032 titled “Immunity from Criminal Prosecution and Civil Action for Justifiable use of Force”
The least controversial and least radical change to the common law doctrine resulting from enacting of the statute is the permission to stand your ground. , The media and supporters of the law have coined the statutory scheme “Stand Your Ground” in order to deflect from the more controversial and radical provisions. 776.013 allows a person who is attacked to meet force with force without having a duty to retreat. Under the statute the attacked person may use deadly force whenever he “reasonably believes” deadly force is necessary to “prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”
The only difference between this statute and the common law is that there is no duty to retreat (or to avoid the use of force) before using force. All this section of the statute does is expand the so called “castle doctrine” from a person’s house, which was considered their castle which could be forcibly defended without first retreating, to any area where the person has the right to be. The statute requires however that a person using deadly force “reasonably believe” the use of the force is necessary. This reasonable standard is an objective standard which will justify the use of deadly force only if a reasonable person would believe it was necessary. It is not a free for all blank check to use deadly force whenever a particular individual feels it is necessary but only permitted when the use of that force is objectively reasonable. Judges and juries routinely evaluate whether the reasonableness of actors based on the particular facts before them in the American legal system. Therefore, a defender takes a chance that his use of deadly force will not be deemed reasonable after the fact. As noted, this section only permits the use of reasonable force by someone who is attacked.
The rest of the statutory schemeis where most of the controversy should exist. But the media has largely ignored this statutory language. Section 776.012 separately establishes that use of deadly force is justified without a duty to retreat when a person “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the commission of a forcible felony.” Additionally, section 776.013(1) presumes the existence of “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” in a wide variety of circumstances.
Once that presumption has been established, the person using deadly force is “immune from criminal prosecution and civil action for the use of such force,” according to Florida Statute 776.032 The statute further explains that once the presumption is established, law enforcement may investigate the use of force, “but may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.” Civil suits for wrongful death against the person using deadly force are also discouraged as 776.032 provides that if the user of force is found to be immune from prosecution the court “shall award reasonable attorney’s fees, court costs, compensation for loss of income and all expenses incurred by” the person using the deadly force. The Florida Supreme Court has recently stated that a judge rather than a jury should determine the existence of the immunity. Dennis v. State, 51 So. 3d 456, 458 (Fla. 2010).
The presumption, and therefore immunity, exists whenever two conditions are met. The first is that the deadly force was used against someone who 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.” The second condition is that the person using the deadly force, “had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”
This second condition is the radical change. Under the common law, the use of force after the danger had passed was presumptively retaliatory and not legally considered self-defense. See Linsley v. State 101 So. 273, 275 (Fla. 1924) (explaining “[t]he taking of human life is neither justifiable nor excusable, where one fires the fatal shot or strikes the fatal blow after danger or death or great bodily harm to him from the deceased’s attack has passed.”)
This is why presumably a Florida judge recently threw out a case against Greyston Garcia when according to the Miami Herald the facts were as follows:
The incident took place on Jan. 25, when Roteta and another youth were behind Garcia’s apartment at 201 SW 18th Ct. According to police, Roteta was stealing Garcia’s truck radio.Garcia, alerted by a roommate, grabbed a large knife and ran downstairs. He chased Roteta, then stabbed him in a confrontation that lasted less than a minute, according to court documents.The stabbing was caught on video. Roteta was carrying a bag filled with three stolen radios, but no weapon other than a pocketknife, which was unopened in his pocket and which police said he never brandished.
See “Miami Judge Decides Fatal Stabbing was Self-defense,” Miami Herald, Mar. 21, 2012, at http://www.miamiherald.com/2012/03/21/2706789/miami-judge-stabbing-in-the-back.html. According to the Herald, the judge granted immunity. The investigator in the case objected. He questioned how a chase like this could be considered standing your ground. The investigator was apt to realize the case had nothing to do with standing ground as provided in 776.013. In reality, the case had to do with the largely ignored, broad grant of immunity in sections 776.013(1) and 776.032(1).
As the Treyvon Martin case continues, it is important for the media to inform the public on the breadth of the Florida self-defense law that results in immunity from prosecution rather than continue to focus on the unremarkable stand your ground provision of the law. The stand your ground provision of the law permits investigators to assess the reasonableness of the conduct and the necessity of using the deadly force. The presumptions and immunities, on the other hand, are the really radical laws which do not require reasonableness in the use of force. The media needs to make the public aware of these sections of the law rather than focusing on the catchy but toothless “stand your ground” refrain.