The Florida Stand Your Ground Law and What It Does: A specific explanation of how the law overreaches by going beyond allowing the use of deadly force in protection of yourself or your home, and encourages pursuit.
First of all, a basic explanation of the concept of “self-defense” and its use as a defense. Self-defense is what is referred to as an “affirmative defense.” Basically, although the prosecution has the burden of proof to show you committed a crime, if a defendant alleges an “affirmative defense” the burden is on the Defendant (not the State) to prove the elements of the defense.
The affirmative defense of “self-defense” has traditionally required the Defendant to prove that when he used the force he was under a reasonable fear of imminent bodily harm/death to his person. Generally, the use of deadly force has been subject to a higher standard, that the person was in reasonable fear of imminent serious bodily injury or death to himself. Even in jurisdictions that are stricter about use of the defense, a person confronted with a home intruder has almost always been able to claim the defense if the force was used within the residence.
What does the Florida law do that is different from the traditional rule allowing self defense?
The first section is essentially a burden shifting provision. 776.013(1) provides that there will be a presumption that a person has a reasonable fear of imminent death or great bodily injury in certain situations. What this does is shifts the burden from the Defendant to prove the reasonable fear instead to the State to prove that the Defendant did not have a reasonable fear of imminent death/great bodily injury. This alone is not what makes the law subject to abuse, it is the enumerated situations that are enumerated in the statute where the presumption applies.
Let’s take each subsection in turn and examine if, and how, it could be abused:
The danger in this section of the law is the application of the presumption to situations where the act forming the basis of the defense occurred entirely in the past. For example, even if the victim had broken into a home the day before, as long as Defendant knew (or had reason to believe) that the act occurred, they would have the benefit of the presumption that they were still in imminent fear of serious bodily injury/death if they tracked the person down and shot them the next day. Subsection (4) of the statute compounds this danger by applying a presumption that anyone entering unlawfully and with force does so with the intent of committing an act of force or violence. Say someone breaks into a house to take back property that Defendant took. Defendant discovers that a break in has occurred, and knows who did it. The next day, Defendant tracks down that person, and kills them. Under the letter of this law, it would be the State’s burden to prove that Defendant was not in reasonable fear of bodily injury or death.
The next substantive provision of the law, 776.013(3) provides that if someone is outside their home or vehicle, in a place they are lawfully allowed to be, they have a right to defend themselves or another with the use of force (including deadly force) if they believe it’s necessary to prevent harm to themselves or another. This part of the section isn’t the primary source of danger of misuse, but the section goes on to state that such force can be used not just in defense of yourself or another, but to prevent the commission of a “forcible felony.” The statute itself does not define “forcible felony.” It is defined in 776.08 as “ treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.” (Emphasis added). How does this create the danger of misuse of self-defense? Well, one type of felony in Florida is “Grand theft”, which is defined as the unlawful taking of property worth more than $300.00. Again, under the letter of the law, this allows someone to use deadly force to prevent the commission of someone stealing property worth more than $300.00, if the person taking the property uses or threatens to use physical force (even if the threatened force isn’t deadly).
Example: Victim is walking down the street, Defendant observes them and believes that they are casing homes to rob. Home invasion robbery is a forceful felony in Florida. 776.013(3), by the letter of the law, would allow the Defendant to use deadly force to prevent what they believe will be the commission of the robbery, even if the victim never committed or began the commission of the offense.
To add another layer of inherent danger of misuse, the law defines “dwelling” to include attached porches. Now, simply walking up on someone’s porch could potentially form the underlying crime (or Defendant’s belief in the crime) triggering the presumption of self defense on the part of the Defendant if they were to use deadly force against the victim.
Bottom line: The intent of this law, and laws like it, is to empower and protect the populace when they use force to defend themselves or another person. Certainly, if someone breaks into your home, you should be able to use whatever force is necessary to prevent harm to yourself or someone in your household. It doesn’t matter if the victim’s alleged intent was just to rob you; if you are home, and someone breaks in, we can probably all agree that a person is justified to protect themselves. The problem is that the actual effect of this law goes so far beyond what is necessary to effectuate that purpose, and instead allows people to use the law to 1. Shift the burden of proof to the State to disprove the defense, even if the underlying act allegedly justifying the defense occurred remotely in time to the Defendant’s actions, and 2. Allows the defense to be used in situations where Defendant uses deadly force not in defense of people (or even property), but even where Defendant simply believes the victim is going to commit a simple felony, if Defendant believed that the person may use force.
The likely counter argument to at least the burden shifting provision of the statute is that a presumption is not absolute proof, and the State may still show that Defendant was not in reasonable fear of imminent bodily injury or death. However, we cannot rely on the State as an adequate fail safe measure in such a situation. A myriad of factors can, and do, prevent the State from pursuing and opposing the use of the defense. The most benign reason is simply underfunding: prosecutors and cops have limited budgets, and there is the inherent danger that when faced with tough decisions regarding which cases to pursue, this law encourages them simply to allocate their resources elsewhere because of the time/resources it will take them to fight the presumption. Of course, another factor that could cause law enforcement and prosecutors not to pursue opposition to a claim of self defense are racial motivations. Racial prejudice either becomes the basis for the “reasonable” belief that the victim was going to commit a felony, or, simply acts as a motivation to conveniently rely on the self defense statute to justify not pursuing the case.
In my opinion, this law, and laws like it, if not repealed, should be significantly re-written to close the “loopholes” outlined above, while still providing for the reasonable use of necessary force (deadly or otherwise) to prevent harm or injury to yourself or other people. Restricting the use of the force to a reasonable time surrounding the underlying act, and focusing on the use of the force to actually prevent imminent harm or injury (without a catchall reference to preventing a “felony”) would begin to transform these laws into legitimate tools for citizens to protect themselves, without allowing the law to become a shield for consequences from the commission of unnecessary violent acts.
The full text of the Florida “Stand Your Ground” Law:
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.
(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.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term:
(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
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