Stand Your Ground, Round Two

by Nola

My last post lead me to the conclusion that Louisiana’s Stand Your Ground law was likely not the same as Florida’s. Turns out, that was an understatement. To understand how this Stand Your Ground law works in Louisiana, and likely other Stand Your Ground States, click here. Bottom-line: It’s an “affirmative defense” that the shooter can use at trial to mitigate the crime for which he is charged. It is not something that is weighed and determined at the police level.

Here’s the entirety of the applicable Florida statutes. I’ve highlighted the portions that are discussed below.

Florida Statutes, Chapter 776 JUSTIFIABLE USE OF FORCE

776.012 Use of force in defense of person.—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.

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.

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting 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 was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).

776.041 Use of force by aggressor. —The justification described in the preceding sections of this chapter is 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.

Here’s how it breaks down:

In Florida, the Stand Your Ground law is raised to a higher level than an “affirmative defense” that can be used by a shooter at trial to lessen his crime. When asserted by a shooter and there’s no evidence to contest it, the cops CANNOT ARREST the shooter. (“A person who uses force as permitted . . . is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. . . . The term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.” See 776.032(1).) If the cops DO arrest the shooter, then, according to the Sandford Florida City Manager, “the officer MUST swear and affirm that he/she is making the arrest in good faith and with probable cause. If the arrest is done maliciously and in bad faith, the officer and the City may be held liable.” In other words, the police department may have to pay the shooter for the act of having arrested him.

But, wait; there’s more. As if the cops’ hands being tied in merely arresting a shooter isn’t bad enough (such that the case never gets to a D.A., let alone a court), and oh, it is quite plenty bad enough, the law goes further to protect the shooter: The family of the one shot CANNOT civilly sue for Wrongful Death (think of Ron Goldman’s family’s civil suit against OJ Simpson after OJ’s criminal acquittal). And if the family DOES SUE, in addition to not having a case, they are charged for the shooter’s expenses, including lost wages, in defending the suit. (“The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).” See 776.032(3).)

The law does provide that if the shooter is the aggressor, he cannot invoke this self-defense immunity. But in cases where the shooter not only shoots but kills, well, we all know Dead Men Tell No Tales. Nor do they refute allegations of self-defense. Further, this aggressor/shooter limitation on the immunity isn’t applicable (this is to say that the shooter WILL be granted immunity for self-defense) when “[s]uch force is so great that the [shooter] 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 [shooter] 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.” See 776.041(2). Again, it’d be hard to refute the shooter’s allegations if the only witness is dead by the shooter’s hand.

It is clear, however, in cases where the shooter is the aggressor, the self-defense immunity is not intended to extend when the person pursued by the aggressor/shooter is armed with no weapon at all. Rather, the immunity for an aggressor is only intended to apply when the person pursued presents “imminent danger of death or great bodily harm.” This is NOT generally going to exist in cases where the person pursued by the aggressor is armed with nothing more than his fists. Unless, for example, those fists are of a prize fighter or a ninja or are holding a lead pipe, candlestick or revolver.

What a tragic mess of a law. And it seems to me that its fundamental flaw is rather apparent: It ignores that with rights come responsibilities. Yes, the Second Amendment to the U.S. Constitution grants Americans the right to bear arms. But no rights granted under our Constitution come unfettered. What this law has done has stripped that responsibility from the right. So instead of a person exercising a right and thus having the responsibility of having to account for its legal and responsible exercise, Florida’s Stand Your Ground law has turned that responsibility on its head—it has turned it on he who is shot (and may himself not have been armed and thus was exercising no right at all, well, other than the right to life, etc.) and it has turned it on the police and the judicial system. The shooter gets the benefit of the presumptions under this law and the person shot, the police, the D.A., and the courts get the obligations of having to prove it wasn’t self-defense and financially recompensing the shooter if unable to do so.

The Florida law has shifted the obligation of establishing the burden of proof from he who exercised the right, the shooter (who, in other Stand Your Ground States that use the law as an affirmative defense, is squarely placed with said burden of proof), to the police (and in cases where arrests ARE made, to the D.A.). The law has shifted the weighing of the evidence of the crime against the evidence of the defense from the D.A. (who decides whether to prosecute or not) to the police. The police! And the courts don’t even get involved unless the police actually arrest a shooter (and remember, an arrest for which self-defense exists gives rise to a cause of action by the shooter against the police). So, the police, absent an arrest, are also the triers of fact. Judge, Jury and Executioner. Or, as has been the case in Florida since this law has been enacted, The People Who Decide Not To Risk Financial Liability to Their Employer and Single-Handedly Decide Self-Defense is Warranted Without Needing the Involvement of the D.A. or Courts of Law.

If ever there was a travesty in the law, this is it. And it seems to me the NRA and its members would use the Martin-Zimmerman case to show their support of responsible gun ownership. But oddly, the members of the NRA I know are using their energies to besmirch Martin’s character as they build up Zimmerman’s. Why? Is Zimmerman really who they’d pick as the poster-boy for the NRA? What are they afraid of by having Zimmerman held responsible for having exercised his right? Mind you, I did not say found guilty of murder; rather, I said “held responsible for having exercised his right,” and by that I mean processed through the system of the D.A. and the courts to determine whether self-defense was at play here or not. All I can think is that gun owners fear a conviction against Zimmerman is a conviction against guns and such conviction would erode their right to bear arms, and thus they want to have this case disappear as quickly and quietly as possible without it making it to trial. And if that IS what is keeping gun owners from wanting Zimmerman to be held responsible to account for his exercise of his right in bearing arms, well, that’s as much a travesty as this unjust law.

Note: I am aware that the police have turned this case over to a grand jury to determine whether probable cause exists such that the police are warranted to arrest Zimmerman. To my knowledge, this is the first such use of the grand jury in a self-defense killing case since this law was passed in 2005, and it is the result of the high level of coverage this case has garnered. It does not change my analysis. The police are not obligated to take these self-defense killings to the grand jury and are doing so in this case, as best I can discern, in an attempt to alleviate potential liability for an arrest in the event a conviction at trial is not obtained. In prior incidents during the time from when this law was enacted and Martin was killed, arrests simply have not been made. 

I am neither a criminal attorney nor one licensed to practice in Florida. The opinions expressed herein are my own and are not intended to be conclusive on this area of law. It is expressed solely for the purpose of discussion and debate.

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