From a paper submitted to the Florida Task Force on Citizen Safety and protection. May 1, 2012
by Roy Bedard
Ladies and Gentlemen of the Florida Task Force on Citizens Safety and Protection. Your committee review of Florida Statute 776 provides a unique opportunity to dissect and analyze Florida’s laws governing self-defense as a group in order to debate the issues and educate yourselves and the citizens of Florida regarding the rules put in place regarding the safety and security of all citizens of the State of Florida.
I am honored to present this paper to provide a historical context and primer to help you better understand from which this statute was derived. I have done significant research in self-defense law for over twenty-five years and have testified in both state and federal court regarding the complexities of personal defense.
In 2009 I began authoring a draft of a non-fiction book entitled, The Winner Goes To Jail, The Sad State of Personal Defense in America. The book, still in production, describes the process one undergoes in the course of, and aftermath, of a legitimate use of force encounter.
Many of the committee members are surely aware that the statutory laws often loosely referred to as, The Castle Doctrine and Stand Your Ground Law first came into existence here in the State of Florida in 2005. But it is important to note that the provisions and protections provided by these laws did not spring forth suddenly from the minds of any particular special interest group, zealous legislator or other entity with a radical agenda.
They were drafted consistent with language that has been accepted in the State and Federal courts for well over 130 years. Though Florida was the first state to draft the Castle Doctrine and Stand Your Ground Laws into statute it has subsequently been repeated by more than half of all of the other states in the Union. Still many other States are currently in the midst of drafting their own legislation to provide their citizens with unambiguous language regarding the right to self-defense.
The creation of these laws were intended to bring the legislative language regarding “self-defense” in lock-step with previous judicial rulings that have governed self-defense claims for over a century and a half and to remove the ambiguity regarding an American’s right to defend himself against wanton aggression.
A Brief History
Florida Statute 776 has historically regulated force encounters between citizens who are aggressively confronted by other citizens and also between citizens who are confronted by law enforcement officials. The statute in its current form has origins dating back to the founding of the State of Florida in 1845.
The original statue was drafted, owing to the common law tradition that required citizens "retreat until your back is against the wall." Like many other states, Florida borrowed common law traditions (as they were accepted in 1776) as a framework for building its own laws that were the original blueprint for modern statehood. With respect to self-defense law the common law tradition is credited to Sir William Blackstone (1723-1780) who supported “the idea of all homicides[1] as public wrongs.” In the case of a homicide, the burden of proof was on the one accused to prove his innocence. While today, the burden of proving guilt has has shifted to the state in the case of unlawful murder, the burden of proving innocence remains on the accused in declarations of self-defense.
In the times of a King, any claim of self-defense was viewed with extreme skepticism by the crown, which historically preferred a monopoly over personal disputes. In England, the courts were extremely antagonistic to self-defense claims fearing that, “the right to defend might be mistaken as the right to kill.”
Florida Statute 776 was originally written in this vain, to limit a citizen’s ability to protect himself by requiring him to desist and retreat from any threat of real or perceived danger, presented to them by another citizen. [1]
If threatened by another, “you must not defend yourself with violence until you have attempted to get away-to flee from the scene altogether. If you are unable to leave the scene, you may not stand your ground and kill in self-defense. Instead you must retreat as far as possible from your enemy; to the wall at your back. Then and only then –with the wall at your back and your retreat cut off may you legally face your opponent and kill in self-defense.” [2]
Within statute 776, only law enforcement officials have enjoyed the privilege of standing their ground against assault or resistance, but still then, only in the course of making arrests.
In the early eighteenth century and throughout the nineteenth century, America continued to evolve from an English styled society to a rugged frontier society, as pioneers ventured into the untamed and unkempt wilderness. Brave men and women spread out across the vast continent making their way with caravans and stagecoaches as they headed west in pursuit of their “manifest destiny.”
Though these pioneers were cultured under the rich history of English common law and had been schooled in the tradition of the "duty to retreat" doctrine, they were venturing into an area where government protection was not immediately available to them and they often had to take the cause of self-defense upon themselves. Whereas Sir Blackstone recommended that personal disputes always be shifted from the streets to the courts, the environment for such civil action would not apply to America’s new frontier.
Throughout the period of manifest destiny, pioneers where forced to stand their ground against marauders, brigands and others who intended to do them and their families harm. In the years to come they would unwittingly draft a new manifesto for self-protection that was uniquely American. They would stand their ground and protect their homelands (castles) using deadly force if necessary. Early American citizens were forced by circumstance to become extraordinarily self-reliant and a culture of self-protection unique in the world was established as part of the American heritage.
The American judicial system has recognized and supported the self-defense nation for well over 130 years and the US Supreme Court officially codified the American theme of “no duty to retreat” in Federal law in 1921[2]. Justice Oliver Wendell Holmes proclaimed, “A man is not born to run away” and affirmed the ideas that a man had the right to stand his ground and defend himself when attacked with a deadly weapon-- even to the extent of taking his assailant’s life if necessary to assure his own salvation. [3]
Law and culture are very complex institutions, where the prior is intended to reflect the latter. The law serves merely to provide a framework for common decency, morality and the ethical constructs of any given civilization.
At the turn of the nineteenth century Blackstone’s English notions of a duty to retreat had become passé in the United States as the new American frontier determined that the ancient laws of Europe did not best reflect the challenges of a new American society.
Whereas the British Crown had assured its monopoly over public disputes, the American frontiersman needed to be mostly self-reliant with respect to his own safety. The many occasions for early settlers to cross paths with unfriendly adversaries meaning to do them bodily harm; to rob or pillage them for whatever stores of food and possessions that they might hold led to a culture that regularly carried weapons for self protection.
A More Modern History
In time, America developed into an organized and sophisticated culture, passing from a rabble-rousing frontier nation into a more refined and civil union of states, with courts and constables integrated as part of the fabric of the more polished American Society.
It wasn’t long before government attempted to reclaim a monopoly on the use of force for private disputes and statutes were once again drafted that required citizens to flee from danger until their backs were against the wall before they be permitted the use of any defensive force. But the judicial system had already spoken to a citizen’s right to defend himself, which included his right to stand his ground and protect his castle from wanton aggression.
So, as statutes and state courts began to once again favor the position that one should retreat from aggression under nearly all circumstances, the laws regarding self-defense became murkier and less friendly towards what the Federal courts had deemed the “true man,” [4] the one who shows courage and bravery in the face of adversity and who is willing to use force if necessary to protect those things which are rightfully his own.
The judicial and the executive branches of government have since then not been in agreement regarding the self-defense issue. This has created an extraordinary situation in the United States for citizens who use legitimate force to protect themselves and others from imminent harm presented to them by the actions of predatory others.
In 2005, SB-436 and HB-249 aligned the legislative language of self-defense with the judicial rulings that had governed the subject for nearly a century and a half. The legislature did not invent new law, they merely brought Florida’s code into lock-step with the State and Federal Courts by further articulating the provisions of Florida Statute 776.012 and creating Florida Statute 776.013, removing the “duty to retreat” in the face of attack clause. The bills intended to create unambiguous protection for persons who used force in light of actual and perceived attacks and the language permitted that a defender be allowed to repel an attacker using any measure of force, including deadly force as a matter of self-defense so long as the force is reasonable and necessary in light of a perceived threat. [5]
The language is now clear; no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack. [6]
Perhaps of greatest importance, the statute prohibits prosecution and prohibits civil liability against persons who have a reasonable claim of self-defense, providing an investigating officer finds probable cause that the citizen’s affirmative defense is supported by facts and circumstances that demonstrate a proper and justified use of defensive force.
[Citing F.S.S. 716.032]
"(1) A person who uses force as permitted in s. 776.012 (in defense of persons), s. 776.013 (for home protection), or s. 776.031(in defense of others) 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)."
It is important to note that Florida statute 776 considers a variety of circumstances described within the body of the statute to clarify previously ambiguous areas of self-defense law.
The Castle doctrine is codified in F.S.S 776.013 and it addresses persons who defend themselves from attack, most specifically while within their private property to include a dwelling, residence or vehicle. Only in this subsection does the legislature use the language “a person who is not engaged in an unlawful activity.”[7]
Whereas statue 776.012 very obviously represents the expanded provisions of the castle doctrine, it is therefore often referred to as the “stand your ground” section of the statute.
This section does not require that the defender be engaged in lawful activity to assert immunity from prosecution if defensive force is used and it is perhaps here that the statute causes some confusion. To clarify the disparity:
Whereas Section 776.012 justifies the use of force when necessary to defend against another’s imminent use of unlawful force, section 776.013 justifies the use of force when “a person is attacked.”
Though a subtle distinction, these two sections are important to clarify and help define the difference between an imminent threat and an actual attack. Triers of the fact have historically argued about what type of force is appropriate and also when force is appropriate.
Because the affirmative defense of “self-defense” requires that defendants provide a reasonable explanation for when force was used, Florida Statute 776.013 explains that immunity is clearly provided to a person when “that person is attacked.” This statement requires a clear understanding of what actions constitute an attack under law. It seems reasonable to assume that an attack occurs during physical contact with an aggressor. But what about if no physical contact is made, can an attack still be levied against a person if there is no actual contact?
Recalling the provisions of SB-436 and HB-249 (2005) that established Florida Statute 776.013, a violator’s unwarranted entry into a person’s private domain gives a reasonable presumption of fear and perhaps death or great bodily harm to the occupants. To state it more plainly, a person attempting to unlawfully enter a private domain is considered to be attacking the occupants within even though direct contact has not yet been made. Under the statute it is not necessary that a defender attempt to calculate the danger posed by an intruder’s conduct when his home or conveyance is forcibly entered before using repelling force. The mere act of attempting to unlawfully enter, by itself, justifies the use of force as protection, and even permits deadly force if there exists reasonable and factual grounds to believe that unless used, a forcible felony would be committed. [8]
Burglary, for instance, is defined as entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein. [9] Unlawfully entering an occupied house presumes that the intruder intends to commit an offense therein and is by its very nature defined as a forcible felony. The use of deadly force to prevent forcible felonies has always been a remedy afforded by Florida Statute 776.012 and now it is further expounded upon in 776.013.
Section 3 of 776.013 expands the right to use force against an attack regardless of where it occurs but it reminds us that a person who is attacked outside of their private property must not be engaging in unlawful conduct in order to use the immunity provision of this statute.
It is reasonable to assume that the framers of this language considered the possibility that a person engaging in unlawful conduct outside of their homes or conveyance would be noticed and approached by other persons who had a mutual right to also be in a given public location. Blatant unlawful conduct often compels community intervention and there exists a great possibility that another person might attack a wrongdoer expressly for the purpose of preventing him from committing some unlawful action. Because the specific language regarding unlawful conduct is only found in statute 776.013, it was likely added in the abundance of caution that a wrongdoer would not be provided an immunity defense for repelling an attack that was intended to end his unlawful activity.
This statute can be juxtaposed with 776.012 that prescribe self-defense allowances for persons who are being threatened but have not yet been attacked. If a person is not in a place that affords the prima facia protections of the Castle Doctrine, then it is naturally more difficult to defend and justify an appropriate use of force. Absent an attack on a person who is in the safety and security of his own home or vehicle a defender must carefully recount very specific facts and circumstances that gave them fear that an attack was imminent in a public location.
It is perhaps not important that Statute 776.012 address unlawful conduct because it is assumed that a person who is engaging in unlawful conduct could reasonably anticipate a justifiable threat from a member of the public who observes him engaging in the unlawful conduct and attempts to stop him.
Statute 776.012 reasonably anticipates that any wrongdoer would be compelled to change his behavior if he reasonably expected to prevent the justifiable threat from escalating to an actual attack. Likewise it is anticipated that the person issuing the threat would not subsequently escalate to attacking the wrongdoer if the wrongdoer complied with the order to desist and stopped engaging in the unlawful behavior. Under this set of circumstances there would be no reason to address an immunity defense since the event would not likely escalate to physical contact. However, if the wrongdoer did continue in his unlawful behavior and was subsequently attacked, then the incident would be reviewed under the provisions of 776.013 and the wrongdoer would not be provided an immunity defense for fighting back. Conversely, if the wrongdoer did cease in his wrongdoing and was subsequently attacked after the unlawful behavior ended, then the former wrongdoer could assert self–defense under law and be afforded immunity for protecting himself.
The language of Statute 776.012 is critical because it provides a justification for everyone who is forced to reasonably assess and predict a threatening person’s future behavior based solely upon that person’s words, actions and demeanor. Without the benefit of being able to show an actual attack a defender must carefully calculate the aggressor’s intent and recount those behaviors as the basis for his affirmative defense. A defender must measure the threat presented to him and reasonably conclude that an aggressor intends to cause him physical harm and that physical harm must be imminent.
The defender must postulate a reasonable belief that is supported by evidence and/or witnesses to explain why he believed that his life was in imminent jeopardy of death or great bodily harm to justify his use of deadly force. He is not under this statute required or compelled to await an actual physical attack as described in 776.013 before being permitted the use of deadly force to protect himself. In other words, he is not required to be shot before shooting in self-defense.
The Stand Your Ground Law
Where some adversaries of the law claim that the Stand Your Ground law is nothing short of a license to kill, a mature understanding of the law shows that they are not granting permissions to use deadly force but rather they are designed to support a user of deadly force in the aftermath of a justifiable homicide.
Stand your Ground laws require an affirmative defense, an admission that you committed a homicide but that your actions were not criminal, rather they were justified in light of the facts and circumstances which reasonably led you to believe that your life was in imminent danger of death or great bodily harm.
This is an unusual area of law, where the burden of proof resides upon the defendant. Unlike other criminal accusations where the defendant enjoys the pleasure of offering no admission of guilt but rather requires the State to prove criminal guilt through the collection of evidence and witness statements, the affirmative defense is a risky proposition for any person to evoke.
But because the judicial system often moves at a snails pace, a person who claims self-defense may sit in jail for months or years before his case is heard by a judge or jury.
An example of this is the case of Augustine Wylie, who in Fort Myers, Florida used self-defense and took the life of a knife-wielding assailant who attacked him. He won immunity under Florida’s Stand Your Ground Law but was only released from the Lee County jail three years after his arrest. For an innocent man of little means who could not afford bail, Wylie sat helplessly in a dismal jail cell as the judicious process churned slowly to a resolution in his favor. In the interim, Wylie lost his home, his job and a large part of his family life. It is difficult to call Wylie’s judicial win, a victory.
Law Enforcement officers are regularly entrusted with the power to weigh the facts and circumstances regarding incidents that may be considered criminal. Law Enforcement officers regularly make arrests based upon probable cause and release subjects when no probable cause can be determined.
In claims of self-defense, where the evidence points to a reasonable belief that a person used force to protect and defend themselves from harm, it is only right to allow a responding officer to make spot judgments based on the available evidence and to decide on the scene whether a person is arrested or allowed to remain free. There will be time to collect more evidence, to build a criminal case if necessary, and to return at a later time with warrants if the evidence so supports it. There should be no rush to judgment on such cases to lock someone up and take away their freedoms because they utilized the most sacred and important right afforded to them by a civilized society; the right to self-protection.
REFERENCES
[1] Among the first acts of the Florida Legislative Council was adoption of the "Common Law" as it existed in England on July 4, 1776. English Common Law dates roughly to 1000 A.D.
[2] Brown, Richard Maxwell (1991) No Duty to Retreat, Univ. of Oklahoma Press, pp: 4
[3] Brown v. United States - 256 U.S. 335 (1921)
[4] Erwin v. State, 29 Ohio St. 126 (1876). “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.”
[5] See HB 249 CS (2005) Substantive Analysis Sec. 1 (B)
[6] Senate Bill 436, 2005 legislature.
[7] (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.
[8] "Forcible felony" means 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.
[9] See Florida Statute 810.02(1)
About the Author:
Roy Bedard, a 25-year veteran of law enforcement is a law enforcement educator, consultant, subject matter expert, and president of Rapid Rotation Baton (RRB) Systems, International. Bedard has national and international notoriety in law enforcement, corrections, security and military circles with his original equipment and training programs. He has taught self-defense techniques and law to civilian audiences for over 30 years. His opinions and commentary regarding law enforcement procedures and defensive tactics have been presented on CBS, ABC, USA Today, and dozens of radio shows, newspapers and websites.
[1] This includes homicide de defendendo, a term used in law to describe self-defense
[2] Many States had adopted this position long before the Supreme Court officially ruled upon it.
by Roy Bedard
Ladies and Gentlemen of the Florida Task Force on Citizens Safety and Protection. Your committee review of Florida Statute 776 provides a unique opportunity to dissect and analyze Florida’s laws governing self-defense as a group in order to debate the issues and educate yourselves and the citizens of Florida regarding the rules put in place regarding the safety and security of all citizens of the State of Florida.
I am honored to present this paper to provide a historical context and primer to help you better understand from which this statute was derived. I have done significant research in self-defense law for over twenty-five years and have testified in both state and federal court regarding the complexities of personal defense.
In 2009 I began authoring a draft of a non-fiction book entitled, The Winner Goes To Jail, The Sad State of Personal Defense in America. The book, still in production, describes the process one undergoes in the course of, and aftermath, of a legitimate use of force encounter.
Many of the committee members are surely aware that the statutory laws often loosely referred to as, The Castle Doctrine and Stand Your Ground Law first came into existence here in the State of Florida in 2005. But it is important to note that the provisions and protections provided by these laws did not spring forth suddenly from the minds of any particular special interest group, zealous legislator or other entity with a radical agenda.
They were drafted consistent with language that has been accepted in the State and Federal courts for well over 130 years. Though Florida was the first state to draft the Castle Doctrine and Stand Your Ground Laws into statute it has subsequently been repeated by more than half of all of the other states in the Union. Still many other States are currently in the midst of drafting their own legislation to provide their citizens with unambiguous language regarding the right to self-defense.
The creation of these laws were intended to bring the legislative language regarding “self-defense” in lock-step with previous judicial rulings that have governed self-defense claims for over a century and a half and to remove the ambiguity regarding an American’s right to defend himself against wanton aggression.
A Brief History
Florida Statute 776 has historically regulated force encounters between citizens who are aggressively confronted by other citizens and also between citizens who are confronted by law enforcement officials. The statute in its current form has origins dating back to the founding of the State of Florida in 1845.
The original statue was drafted, owing to the common law tradition that required citizens "retreat until your back is against the wall." Like many other states, Florida borrowed common law traditions (as they were accepted in 1776) as a framework for building its own laws that were the original blueprint for modern statehood. With respect to self-defense law the common law tradition is credited to Sir William Blackstone (1723-1780) who supported “the idea of all homicides[1] as public wrongs.” In the case of a homicide, the burden of proof was on the one accused to prove his innocence. While today, the burden of proving guilt has has shifted to the state in the case of unlawful murder, the burden of proving innocence remains on the accused in declarations of self-defense.
In the times of a King, any claim of self-defense was viewed with extreme skepticism by the crown, which historically preferred a monopoly over personal disputes. In England, the courts were extremely antagonistic to self-defense claims fearing that, “the right to defend might be mistaken as the right to kill.”
Florida Statute 776 was originally written in this vain, to limit a citizen’s ability to protect himself by requiring him to desist and retreat from any threat of real or perceived danger, presented to them by another citizen. [1]
If threatened by another, “you must not defend yourself with violence until you have attempted to get away-to flee from the scene altogether. If you are unable to leave the scene, you may not stand your ground and kill in self-defense. Instead you must retreat as far as possible from your enemy; to the wall at your back. Then and only then –with the wall at your back and your retreat cut off may you legally face your opponent and kill in self-defense.” [2]
Within statute 776, only law enforcement officials have enjoyed the privilege of standing their ground against assault or resistance, but still then, only in the course of making arrests.
In the early eighteenth century and throughout the nineteenth century, America continued to evolve from an English styled society to a rugged frontier society, as pioneers ventured into the untamed and unkempt wilderness. Brave men and women spread out across the vast continent making their way with caravans and stagecoaches as they headed west in pursuit of their “manifest destiny.”
Though these pioneers were cultured under the rich history of English common law and had been schooled in the tradition of the "duty to retreat" doctrine, they were venturing into an area where government protection was not immediately available to them and they often had to take the cause of self-defense upon themselves. Whereas Sir Blackstone recommended that personal disputes always be shifted from the streets to the courts, the environment for such civil action would not apply to America’s new frontier.
Throughout the period of manifest destiny, pioneers where forced to stand their ground against marauders, brigands and others who intended to do them and their families harm. In the years to come they would unwittingly draft a new manifesto for self-protection that was uniquely American. They would stand their ground and protect their homelands (castles) using deadly force if necessary. Early American citizens were forced by circumstance to become extraordinarily self-reliant and a culture of self-protection unique in the world was established as part of the American heritage.
The American judicial system has recognized and supported the self-defense nation for well over 130 years and the US Supreme Court officially codified the American theme of “no duty to retreat” in Federal law in 1921[2]. Justice Oliver Wendell Holmes proclaimed, “A man is not born to run away” and affirmed the ideas that a man had the right to stand his ground and defend himself when attacked with a deadly weapon-- even to the extent of taking his assailant’s life if necessary to assure his own salvation. [3]
Law and culture are very complex institutions, where the prior is intended to reflect the latter. The law serves merely to provide a framework for common decency, morality and the ethical constructs of any given civilization.
At the turn of the nineteenth century Blackstone’s English notions of a duty to retreat had become passé in the United States as the new American frontier determined that the ancient laws of Europe did not best reflect the challenges of a new American society.
Whereas the British Crown had assured its monopoly over public disputes, the American frontiersman needed to be mostly self-reliant with respect to his own safety. The many occasions for early settlers to cross paths with unfriendly adversaries meaning to do them bodily harm; to rob or pillage them for whatever stores of food and possessions that they might hold led to a culture that regularly carried weapons for self protection.
A More Modern History
In time, America developed into an organized and sophisticated culture, passing from a rabble-rousing frontier nation into a more refined and civil union of states, with courts and constables integrated as part of the fabric of the more polished American Society.
It wasn’t long before government attempted to reclaim a monopoly on the use of force for private disputes and statutes were once again drafted that required citizens to flee from danger until their backs were against the wall before they be permitted the use of any defensive force. But the judicial system had already spoken to a citizen’s right to defend himself, which included his right to stand his ground and protect his castle from wanton aggression.
So, as statutes and state courts began to once again favor the position that one should retreat from aggression under nearly all circumstances, the laws regarding self-defense became murkier and less friendly towards what the Federal courts had deemed the “true man,” [4] the one who shows courage and bravery in the face of adversity and who is willing to use force if necessary to protect those things which are rightfully his own.
The judicial and the executive branches of government have since then not been in agreement regarding the self-defense issue. This has created an extraordinary situation in the United States for citizens who use legitimate force to protect themselves and others from imminent harm presented to them by the actions of predatory others.
In 2005, SB-436 and HB-249 aligned the legislative language of self-defense with the judicial rulings that had governed the subject for nearly a century and a half. The legislature did not invent new law, they merely brought Florida’s code into lock-step with the State and Federal Courts by further articulating the provisions of Florida Statute 776.012 and creating Florida Statute 776.013, removing the “duty to retreat” in the face of attack clause. The bills intended to create unambiguous protection for persons who used force in light of actual and perceived attacks and the language permitted that a defender be allowed to repel an attacker using any measure of force, including deadly force as a matter of self-defense so long as the force is reasonable and necessary in light of a perceived threat. [5]
The language is now clear; no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack. [6]
Perhaps of greatest importance, the statute prohibits prosecution and prohibits civil liability against persons who have a reasonable claim of self-defense, providing an investigating officer finds probable cause that the citizen’s affirmative defense is supported by facts and circumstances that demonstrate a proper and justified use of defensive force.
[Citing F.S.S. 716.032]
"(1) A person who uses force as permitted in s. 776.012 (in defense of persons), s. 776.013 (for home protection), or s. 776.031(in defense of others) 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)."
It is important to note that Florida statute 776 considers a variety of circumstances described within the body of the statute to clarify previously ambiguous areas of self-defense law.
The Castle doctrine is codified in F.S.S 776.013 and it addresses persons who defend themselves from attack, most specifically while within their private property to include a dwelling, residence or vehicle. Only in this subsection does the legislature use the language “a person who is not engaged in an unlawful activity.”[7]
Whereas statue 776.012 very obviously represents the expanded provisions of the castle doctrine, it is therefore often referred to as the “stand your ground” section of the statute.
This section does not require that the defender be engaged in lawful activity to assert immunity from prosecution if defensive force is used and it is perhaps here that the statute causes some confusion. To clarify the disparity:
Whereas Section 776.012 justifies the use of force when necessary to defend against another’s imminent use of unlawful force, section 776.013 justifies the use of force when “a person is attacked.”
Though a subtle distinction, these two sections are important to clarify and help define the difference between an imminent threat and an actual attack. Triers of the fact have historically argued about what type of force is appropriate and also when force is appropriate.
Because the affirmative defense of “self-defense” requires that defendants provide a reasonable explanation for when force was used, Florida Statute 776.013 explains that immunity is clearly provided to a person when “that person is attacked.” This statement requires a clear understanding of what actions constitute an attack under law. It seems reasonable to assume that an attack occurs during physical contact with an aggressor. But what about if no physical contact is made, can an attack still be levied against a person if there is no actual contact?
Recalling the provisions of SB-436 and HB-249 (2005) that established Florida Statute 776.013, a violator’s unwarranted entry into a person’s private domain gives a reasonable presumption of fear and perhaps death or great bodily harm to the occupants. To state it more plainly, a person attempting to unlawfully enter a private domain is considered to be attacking the occupants within even though direct contact has not yet been made. Under the statute it is not necessary that a defender attempt to calculate the danger posed by an intruder’s conduct when his home or conveyance is forcibly entered before using repelling force. The mere act of attempting to unlawfully enter, by itself, justifies the use of force as protection, and even permits deadly force if there exists reasonable and factual grounds to believe that unless used, a forcible felony would be committed. [8]
Burglary, for instance, is defined as entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein. [9] Unlawfully entering an occupied house presumes that the intruder intends to commit an offense therein and is by its very nature defined as a forcible felony. The use of deadly force to prevent forcible felonies has always been a remedy afforded by Florida Statute 776.012 and now it is further expounded upon in 776.013.
Section 3 of 776.013 expands the right to use force against an attack regardless of where it occurs but it reminds us that a person who is attacked outside of their private property must not be engaging in unlawful conduct in order to use the immunity provision of this statute.
It is reasonable to assume that the framers of this language considered the possibility that a person engaging in unlawful conduct outside of their homes or conveyance would be noticed and approached by other persons who had a mutual right to also be in a given public location. Blatant unlawful conduct often compels community intervention and there exists a great possibility that another person might attack a wrongdoer expressly for the purpose of preventing him from committing some unlawful action. Because the specific language regarding unlawful conduct is only found in statute 776.013, it was likely added in the abundance of caution that a wrongdoer would not be provided an immunity defense for repelling an attack that was intended to end his unlawful activity.
This statute can be juxtaposed with 776.012 that prescribe self-defense allowances for persons who are being threatened but have not yet been attacked. If a person is not in a place that affords the prima facia protections of the Castle Doctrine, then it is naturally more difficult to defend and justify an appropriate use of force. Absent an attack on a person who is in the safety and security of his own home or vehicle a defender must carefully recount very specific facts and circumstances that gave them fear that an attack was imminent in a public location.
It is perhaps not important that Statute 776.012 address unlawful conduct because it is assumed that a person who is engaging in unlawful conduct could reasonably anticipate a justifiable threat from a member of the public who observes him engaging in the unlawful conduct and attempts to stop him.
Statute 776.012 reasonably anticipates that any wrongdoer would be compelled to change his behavior if he reasonably expected to prevent the justifiable threat from escalating to an actual attack. Likewise it is anticipated that the person issuing the threat would not subsequently escalate to attacking the wrongdoer if the wrongdoer complied with the order to desist and stopped engaging in the unlawful behavior. Under this set of circumstances there would be no reason to address an immunity defense since the event would not likely escalate to physical contact. However, if the wrongdoer did continue in his unlawful behavior and was subsequently attacked, then the incident would be reviewed under the provisions of 776.013 and the wrongdoer would not be provided an immunity defense for fighting back. Conversely, if the wrongdoer did cease in his wrongdoing and was subsequently attacked after the unlawful behavior ended, then the former wrongdoer could assert self–defense under law and be afforded immunity for protecting himself.
The language of Statute 776.012 is critical because it provides a justification for everyone who is forced to reasonably assess and predict a threatening person’s future behavior based solely upon that person’s words, actions and demeanor. Without the benefit of being able to show an actual attack a defender must carefully calculate the aggressor’s intent and recount those behaviors as the basis for his affirmative defense. A defender must measure the threat presented to him and reasonably conclude that an aggressor intends to cause him physical harm and that physical harm must be imminent.
The defender must postulate a reasonable belief that is supported by evidence and/or witnesses to explain why he believed that his life was in imminent jeopardy of death or great bodily harm to justify his use of deadly force. He is not under this statute required or compelled to await an actual physical attack as described in 776.013 before being permitted the use of deadly force to protect himself. In other words, he is not required to be shot before shooting in self-defense.
The Stand Your Ground Law
Where some adversaries of the law claim that the Stand Your Ground law is nothing short of a license to kill, a mature understanding of the law shows that they are not granting permissions to use deadly force but rather they are designed to support a user of deadly force in the aftermath of a justifiable homicide.
Stand your Ground laws require an affirmative defense, an admission that you committed a homicide but that your actions were not criminal, rather they were justified in light of the facts and circumstances which reasonably led you to believe that your life was in imminent danger of death or great bodily harm.
This is an unusual area of law, where the burden of proof resides upon the defendant. Unlike other criminal accusations where the defendant enjoys the pleasure of offering no admission of guilt but rather requires the State to prove criminal guilt through the collection of evidence and witness statements, the affirmative defense is a risky proposition for any person to evoke.
But because the judicial system often moves at a snails pace, a person who claims self-defense may sit in jail for months or years before his case is heard by a judge or jury.
An example of this is the case of Augustine Wylie, who in Fort Myers, Florida used self-defense and took the life of a knife-wielding assailant who attacked him. He won immunity under Florida’s Stand Your Ground Law but was only released from the Lee County jail three years after his arrest. For an innocent man of little means who could not afford bail, Wylie sat helplessly in a dismal jail cell as the judicious process churned slowly to a resolution in his favor. In the interim, Wylie lost his home, his job and a large part of his family life. It is difficult to call Wylie’s judicial win, a victory.
Law Enforcement officers are regularly entrusted with the power to weigh the facts and circumstances regarding incidents that may be considered criminal. Law Enforcement officers regularly make arrests based upon probable cause and release subjects when no probable cause can be determined.
In claims of self-defense, where the evidence points to a reasonable belief that a person used force to protect and defend themselves from harm, it is only right to allow a responding officer to make spot judgments based on the available evidence and to decide on the scene whether a person is arrested or allowed to remain free. There will be time to collect more evidence, to build a criminal case if necessary, and to return at a later time with warrants if the evidence so supports it. There should be no rush to judgment on such cases to lock someone up and take away their freedoms because they utilized the most sacred and important right afforded to them by a civilized society; the right to self-protection.
REFERENCES
[1] Among the first acts of the Florida Legislative Council was adoption of the "Common Law" as it existed in England on July 4, 1776. English Common Law dates roughly to 1000 A.D.
[2] Brown, Richard Maxwell (1991) No Duty to Retreat, Univ. of Oklahoma Press, pp: 4
[3] Brown v. United States - 256 U.S. 335 (1921)
[4] Erwin v. State, 29 Ohio St. 126 (1876). “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.”
[5] See HB 249 CS (2005) Substantive Analysis Sec. 1 (B)
[6] Senate Bill 436, 2005 legislature.
[7] (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.
[8] "Forcible felony" means 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.
[9] See Florida Statute 810.02(1)
About the Author:
Roy Bedard, a 25-year veteran of law enforcement is a law enforcement educator, consultant, subject matter expert, and president of Rapid Rotation Baton (RRB) Systems, International. Bedard has national and international notoriety in law enforcement, corrections, security and military circles with his original equipment and training programs. He has taught self-defense techniques and law to civilian audiences for over 30 years. His opinions and commentary regarding law enforcement procedures and defensive tactics have been presented on CBS, ABC, USA Today, and dozens of radio shows, newspapers and websites.
[1] This includes homicide de defendendo, a term used in law to describe self-defense
[2] Many States had adopted this position long before the Supreme Court officially ruled upon it.
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