Law Office of William B. Wynne
2501 Orient Rd., Suite D
Tampa, FL 33619
Law Office of William B. Wynne
2501 Orient Rd., Suite D
Tampa, FL 33619
Back in the eighties, years before Florida’s Stand Your Ground law was enacted, a handful of states had existing laws that offered immunity from prosecution to those who used deadly force against home intruders.
In 2005—with the backing of the National Rifle Association—Florida followed suit and passed its notorious Stand Your Ground law. The law immediately drew controversy and criticism in the media. Critics of the law argued it emboldened vigilantes and encouraged people to “shoot first, ask questions later.” On the other hand, supporters lauded it as a necessary and much needed expansion of the right to use deadly force in self-defense situations.
Despite the initial controversy of the Stand Your Ground law in Florida, it wasn’t until 2012, with the shooting death of 17-year-old Trayvon Martin by neighborhood watch captain George Zimmerman, that the controversial law traversed the national spotlight and became a subject of recurring national headlines. Contrary to prevailing belief, George Zimmerman did not actually invoke the Stand Your Ground law in his defense. However, the law’s existence did shape public discourse around the case. It was mentioned during the proceedings, especially during the jury instruction, thus indicating its influence even in cases where it’s not directly asserted. Ironically, Zimmerman ended up asserting traditional self-defense during the trial.
Contrary to popular belief, the enactment of Stand Your Ground Law in Florida did not actually create a new (or affirmative) defense, regarding the use of deadly force. Prior to Stand Your Ground, the common law principles of traditional self-defense controlled. These principles of self-defense are historically rooted in the English common-law doctrine, dating back to at least the seventeenth century. These principles have been the law in Florida for well over a century. Lovett v. State, 30 Fla. 142, 163-64 (Fla. 1892).
Under the common law (prior to Stand Your Ground Law in Florida) a person was entitled to use non-deadly force to defend against the imminent use of unlawful non-deadly force. And deadly force could be used to defend against the imminent use of deadly force or great bodily harm—or the commission of a forcible felony. In contrast to Stand Your Ground law, the common law imposed a duty to retreat. This meant that even if you felt threatened, you were required to retreat to a place of safety. The use of deadly force was therefore only legally permissible if retreat was not possible.
Florida law did recognize one major exception to this duty to retreat called the “Castle Doctrine.” The Castle Doctrine, in theory, means that every man is the king of his castle, and every woman the queen of hers. It follows then, that one should not be required to retreat when attacked or threatened in their home or residence.
Accordingly, under the Castle Doctrine, if you were in your home, there was no duty to retreat. But remember, even though the Castle Doctrine removed the retreat requirement, the homeowner (or lawful occupant) was still required to show that he or she reasonably believed that force was necessary to prevent death or serious bodily harm.
Florida’s Stand Your Ground law is not a new development in American jurisprudence. In the mid-to-late nineteenth century, American courts began narrowing and restricting the duty to retreat regarding self-defense. Notably, the Ohio Supreme Court in 1876, ruled “the criminal law will not permit the taking of human life to repel a mere trespass, . . . but a true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.” Erwin v. State, 29 Ohio St. 186, 199 (1876). About a year after Erwin, the Supreme Court of Indiana also embraced the “no retreat” approach in Runyan v. State, 57 Ind. 80 (1877). In Runyan, the court held the following:
When a person, being without fault and in a place where he has a right to be, is violently assaulted, he may, without retreating, repel force by force, and if, in reasonable exercise of his right of self-defense, his assailant is killed, he is justifiable.1
In the years following, other state courts began to follow suit and endorse the “no retreat” approach, and at the close of the 19th century the United States Supreme Court joined the national conversation and embraced the “no retreat” approach in Beard v. United States, 158 U.S. 550 (1895). About 26 years later, in Brown v. United States, 256 U.S. 335 (1921), Supreme Court Justice Oliver Wendell Holmes rejected the retreat rule famously writing for the Court, “Detached reflection cannot be demanded in the presence of an uplifted knife.”
Today’s laws regarding Stand Your Ground are codified in Florida Statutes, section 776.012, and section 776.013. As we discussed, Stand Your Ground law does not replace traditional self-defense under the common-law, rather it expands the scope of common law self-defense. It does this in the following three ways:
First, the most obvious change from the common law doctrine of self-defense, is the absence of the “duty to retreat” requirement. Under section 776.012, someone can lawfully defend themself using deadly force without the duty to retreat, regardless of where that person is when faced with the threat/attack.2 The only requirement is that the individual must be in a place where he/she is lawfully entitled to be when the threat/attack occurs. This basically expands the Castle Doctrine to any place were a person has a right to be.
Today’s Stand Your Ground law further protects those who assert self-defense and extends the permissible use of force with regard to dwellings, residences, and occupied vehicles. It does this by creating two conclusive presumptions, that are codified in Florida Statute 776.013.3
“Subsections (1), (2), (4), and (5) of section 776.013 expand the “castle” to include a dwelling, residence, or occupied vehicle. These subsections all work together to provide for presumptions that make it easier for a person in the “castle” to establish the justifiable use of deadly force.” Little v. State, 111 So. 3d 214 (Fla. 2d DCA 2013).
These presumptions dramatically change the nature of a self-defense case. This means, that a person’s belief that it was necessary to use force—or deadly force—against an attack, will be presumed reasonable. This is an immensely powerful legal tool for a defendant asserting self-defense because it puts the burden on the prosecution to overcome the presumption with evidence proving that the defendant’s fear of imminent death or great bodily harm was unreasonable.
Finally, prosecutorial immunity is another significant change from the common law. Under section 776.032(1), Florida Statutes, the law gives you potential immunity from prosecution, if you can show that your actions fall within the statutory provisions of the law. Under the common law of self-defense, there was no such immunity. Instead, the issue of whether you acted in self-defense was a factual issue to be decided by a jury. Stand Your Ground law, therefore takes this decision out of the jury’s hands, and allows a defendant to assert, prior to trial, that his actions fall within the statutory criteria. If the defendant can successfully establish this, then the state is barred from further prosecuting the matter. That means no trial. And no charges.
When the law was first passed in 2005, there was no mention of the procedural mechanism by which prosecutorial immunity could be determined. Florida appellate courts wrestled with this issue initially. In Dennis v. State, 51 So.3d 456 (Fla. 2010), the Florida Supreme Court established that when a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. While the Florida Supreme Court in Dennis did touch on some of the procedural aspects of pre-trial immunity, questions with regard to the burden and standard of proof remained unanswered.
These lingering issues were put to rest by the Florida Supreme Court in 2015 in Bretherick v. State, 170 So. 3d 766 (Fla. 2015). Resolving this issue, Bretherick held that the Defendant may raise the issue of statutory immunity prior to trial at an evidentiary hearing, and the burden would rest with the defendant to show by a preponderance of the evidence that he was entitled to immunity.4 This ruling was problematic from a legal standpoint because it shifted the burden to the defendant, requiring him to prove his innocence; a concept that ran afoul of traditional criminal legal principles.
However, in 2017, the Florida Legislature, amended the Stand Your Ground statute and changed both the burden of proof and the standard of proof in pre-trial immunity proceedings. The law today requires the defendant need only make a showing of a prima facie case of self-defense immunity, at which point the burden shifts to the state to prove by clear and convincing evidence, that the defendant is not entitled to immunity. Love v. State, 247 So. 3d 609 (Fla. 3rd DCA 2018).
Section 776.032(1), Florida Statutes, gives “defendants a substantive right to assert immunity from prosecution and to avoid being subjected to trial.”5 When immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The trial court may not deny a motion simply because factual disputes exist. Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008).
The potential to have your case dismissed prior to trial, is what makes Florida’s Stand Your Ground law such a powerful tool for criminal defense lawyers. The Stand Your Ground hearing is an evidentiary hearing, where the judge must consider and weigh factual issues presented by witness testimony and other evidence. Like a trial, but without a jury. At this hearing, the prosecution would be required to prove by clear and convincing evidence, that the use of force was not justified. The clear and convincing evidence standard is higher than the “preponderance of the evidence” standard but lower than the “proof beyond a reasonable doubt” standard.
A skilled attorney can represent you at this hearing and persuasively present your case to the court. At the conclusion of the hearing, if the judge decides that the prosecution has not met its burden, your case would be dismissed.
When it comes to invoking Stand Your Ground law within residences or dwellings, Section 776.013(3)(a) – (d), Florida Statutes, specifies four key scenarios where the presumption of reasonableness does not apply.6
Florida’s Stand Your Ground law is complex and often leads to confusion among both the public and even some legal professionals. In essence, the statute removes the traditional common-law duty to retreat—a significant departure from common law—and introduces legal presumptions that ease the justification of self-defense measures. Additionally, the law provides the possibility of immunity from prosecution under certain conditions.
Florida’s Stand Your Ground law is an extremely powerful tool that has the potential to facilitate the dismissal of your charges, before trial. If you’re facing criminal charges and considering the use of a self-defense argument, it’s crucial to consult with an attorney well-versed in Florida’s Stand Your Ground legislation. To discuss your specific situation or to schedule a consultation, contact the Law Office of William B. Wynne today at 813-532-5057.