Stand Your Ground: An Absolute Defense in the State of Florida

2)In any other place where a person “has a right to be,” that person has “no duty to retreat” if attacked and may “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 to prevent the commission of a forcible felony.”

3)In either case, a person using any force permitted by the law is immune from criminal prosecution or civil action and cannot be arrested unless a law enforcement agency determines there is probable cause that the force used was unlawful.

4)If a civil action is brought and the court finds the defendant to be immune based on the parameters of the law, the defendant will be awarded all costs of defense.

So what does this all mean?

Let's start with Number One. The law permits you to use deadly force against anybody who breaks into your residence or occupied vehicle. That means, if somebody commits a burglary against you, you have an absolute right to use lethal force against that intruder. This right also extends to your car, because as you may know - breaking into an occupied car, such as an attempted carjacking, is considered a type of burglary. If somebody tries to break into your car while you are inside of it, Stand Your Ground permits the use of lethal force as well.

Regarding Number Two, this is the most controversial prong of the law, and one that is most frequently tested in the courts. As a Miami-Dade County criminal defense attorney, I know that the Miami-Dade State Attorney's Office and the Broward State Attorney's Office sometimes file criminal charges against people whose self-defense rights may be protected under this law. Everyday, people are charged with aggravated assault, aggravated battery, manslaughter, and even murder for using force (sometimes deadly) against their own attackers.

Number Two states that in any place you have a right to be, you have no duty to retreat if attacked. First of all, you must be in a place where you have a right to be. Generally, this means the public. You do not have a right to be in somebody else's home or backyard if you do not have that person's permission. Otherwise, you may find yourself on the receiving end of this law's protection. Public may mean the roadway, a parking lot, or a shopping center, just to name a few. Additionally, Number Two states that you have no duty to retreat (or run away), and that you may meet force with force, even deadly force, if you reasonably believe it is necessary to prevent harm or death to yourself or another, or to prevent the commission of a forcible felony. Examples of forcible felonies would be robbery (armed or strongarm), burglary of an occupied conveyance, carjacking, aggravated assault, aggravated battery, or sexual battery.

Let's do two quick hypotheticals to see how well you understand this law.

The first hypo deals with Number One of the Stand Your Ground law.

1) Homeowner is asleep one night and hears crashing sounds coming from downstairs. Homeowner peers outside his bedroom door and sees a shadowy figure trying to pry a flat screen television off the wall. Homeowner grabs his gun from his nightstand, tip-toes downstairs, and shoots the intruder in the back. Homeowner does not provide a verbal warning to the intruder, just fires. The intruder falls dead. The intruder is unarmed.

In this situation, Homeowner would not be arrested or prosecuted. His protection under Stand Your Ground is absolute. It doesn't matter if the intruder wasn't armed, or if Homeowner didn't shout, "Freeze!" or "Don't move!" The Homeowner doesn't have to hold the intruder down at gunpoint and call the police. Florida's Stand Your Ground law is very clear in this situation. If someone breaks into your home, you may use lethal force against that intruder. The intruder need not be armed.

This situation is less common for criminal defense attorneys because the law is so clear. However, this next situation is where Stand Your Ground becomes so important as a defense.

2) Driver is circling the parking lot at Publix for what seems like an eternity. He finally finds a spot. Just as he is pulling in, Young Punk zips in in front of him, stealing the spot and nearly taking off Driver's front bumper. Driver is upset, and lowers his window to exchange words with Young Punk. Young Punk has a cocky, cavalier attitude, and mutters some choice, if not threatening words back to Driver. Angrily, Driver concedes defeat, pulls away from the parking spot, but not before giving Young Punk the middle finger. This gesture infuriates Young Punk, who gets out of his car and begins approaching Driver's vehicle. Young Punk is moving toward Driver's vehicle in a threatening manner. Young Punk also has his right hand underneath his shirt, seemingly grabbing for something tucked into his waistband. Driver, who has a concealed weapons permit, reaches for his .38 in his glove box. As Young Punk continues to approach Driver's car, he does not remove his hand from his waistband. Driver believes that he has just upset Young Punk so much that Young Punk is about to pull a gun on him. From his car, Driver aims his .38 out the open window, and tells Young Punk, "Back off!" Young Punk puts his hands up. There is nothing in his waistband. Young Punk darts back to his own car, grabs his cell phone, and calls the police. Driver is arrested and charged with aggravated assault with a firearm.

This situation is common, and is not as clearly defined in the Stand Your Ground law as the first scenario. In this situation, Driver had a reasonable belief that Young Punk was approaching his car with the intent to do harm, and in the possession of a weapon. Being in fear for his safety, Driver threatened deadly force by aiming his gun at Young Punk. However, by aiming a gun at somebody, Driver has committed the crime of aggravated assault with a firearm. He has never been arrested, he has a wife and two children in college, and is the owner of a small business. But now he will go to jail, have to post a bond, and will face felony charges that carry a minimum mandatory term of three years in state prison.

It's in situations like these where the hiring of a criminal defense lawyer is so important. In my professional opinion, Driver had every right under Stand Your Ground to show Young Punk his weapon. He possessed a reasonable belief that Young Punk was approaching his car with the intent of assaulting, or maybe seriously injuring Driver. Unfortunately, the police will arrive at the scene and question Young Punk. Young Punk will admit that the two men got into an argument over a parking space, but that Driver then pulled a gun. Driver, who has never been in trouble and truly believes he is right, admits to the officer that he did pull a gun on Young Punk. Knowing that Driver has a gun in the car, the officer searches the glove box and finds a loaded .38 caliber. The .38 is impounded as evidence, and Driver is arrested.

This is just one of many factual scenarios where ordinary citizens are arrested and prosecuted for exercising their right to self-defense. When I was a prosecutor in Miami-Dade County, I prosecuted many aggravated assault, aggravated battery, and other violent felonies where Stand Your Ground protection was claimed by the defense attorneys. I know that situations are not always clear, and that good lawyering is needed in order to bring the truth to light.

If you are in your home and you use non-lethal or lethal force against an intruder, chances are the law is 100% on your side. The police will ask you a few questions, and then decide pretty quickly that you were right, and the dead intruder was wrong. You won't get arrested and you won't get prosecuted.

If the intruder was shot on your property, but not in or around your home (you shot an intruder climbing over the fence to your yard), you may have problems. This may be a situation in which you contact a criminal defense attorney.

If your situation involves a confrontation out in public, then it is in your best interest to get an attorney right away because chances are, you will be charged. In the hypothetical between Driver and Young Punk, the only evidence is the statement of Young Punk, the "victim," the admission by Driver that he did pull a gun, the actual gun itself, and nothing more. It's a he-said, he-said situation except the Defendant, Driver, has admitted pulling a gun, and a gun was actually found. Without good legal work, Driver could be convicted and sent to prison.

Say Driver hires a qualified criminal defense attorney who has experience with the Stand Your Ground defense. The defense attorney pulls Young Punk's criminal record to find that he is a six-time convicted felon. Furthermore, the defense attorney subpoenas the parking lot security footage from Publix, which clearly shows Young Punk getting out of his car and approaching Driver's side window with his hand in his waistband. Defense attorney takes a deposition of Young Punk wherein Young Punk admits that he did get out of his car, and he did have his hand in his waistband, but only because he wanted to scare Driver.

Defense attorney files a sworn motion to dismiss, and the motion is granted. Defense attorney is able to expunge Driver's arrest.

Where the law is clear but the facts are not, the hiring of a good criminal defense attorney can be a powerful tool. We defense lawyers have the ability to investigate and discover evidence otherwise looked over, or not found by police officers and detectives. With so many cases being processed through the Miami-Dade State Attorney's Office and the Broward State Attorney's Office, sometimes matters are not given as much scrutiny as they should. In our scenario with Driver and Young Punk, the arresting officer is going to write up a one-page affidavit stating that,

"Defendant and Victim got into a verbal argument over a parking space. Defendant became enraged and produced a firearm which he pointed at Victim and stated, "Back off." Defendant spontaneously admitted that he aimed a gun at Victim. Search of Defendant's vehicle revealed a Smith & Wesson .38 caliber revolver in the glove compartment. Firearm was loaded with six hollow-point defensive rounds. Firearm impounded under police case number and Defendant arrested and transported to T.G.K."

The intake prosecutor will speak with two people. The arresting officer and Young Punk. The prosecutor will have more than enough evidence to file aggravated assault with a firearm charges.

The law is there to protect us, but it can be frustrating, even frightening, when the law is against us. Don't take chances, especially when firearm mandatory minimum sentences are in play. Call me today and we can discuss your matter further.