PART 1
Perhaps the most common claims of self-defense in the wake of an act of violence come from police officers who have used force as part of their job. It makes sense that with nearly 800,000 police officials in the United States working around the clock to enforce laws that they would be statistically more likely to experience episodes of violence compared to ordinary Americans. For sure they are a high profile group as recent episodes in New York and Missouri recently reminded us.

Incidents where police use force rarely go unnoticed. The law enforcement profession has in many ways been shaped by the fallout associated with police involved violence. This includes criminal liability, civil liability, media persecution and a loss of confidence by the community. To counter these effects, law enforcement officers are formally trained to capture the violent event in written form through an elaborate process of documentation. They use models and matrices to describe resistance and how it is countered by law enforcement response. This information not only serves an evidentiary role for the purpose of detailing specific facts for later review, it also provides officers with a blueprint to construct a model filled with relevant details that will ultimately become their personal defense for using force.

When a law enforcement officer uses force, including deadly force, it might be naturally assumed that it was necessary for the purpose of satisfying some law enforcement objective. This gives officers a marked advantage in any subsequent investigation.By law, police can only use force three reasons; to make arrests, prevent escapes and to protect oneself or another against harm. Officers who use force under the color of law (performing an occupational duty) have certain Constitutional and Statutory protections in place to assist them and shield them from liability. It is rare that civili liability is found against individual officers and rarer still that an officer is ever held criminally responsible for a use of force.  

It may not surprise the reader to learn that police uses of force are investigated by other law enforcement officials. Depending on an agencies policies the investigation may be conducted by the same agency or fielded out to another agency for the consideration of criminal charges. Ultimately the State prosecutor, arguably an ally of law enforcement must decide whether to bring charges against the officer by direct filing criminal charges or gathering an indictment from a Grand Jury. Like any other criminal investigation this decision is based upon a finding of probable cause.

Statistically, police officers are rarely charged with crimes after using force against members of the public and the mechanics of the police investigation may help to understand why. This is not to suggest that the protections in place for law enforcement officials are sinister or corrupt. Threats faced by police are often violent, sudden and rapidly unfolding. Law enforcement officers are forced to make split-second decisions that might have life altering consequences in a fraction of a moment. They need to be protected from the clarity of 20/20 hindsight.

For decades, law enforcement agencies have developed training and policies to help guide officers actions and to help them navigate the uncertain terrain of violent encounters. They are equipped with specialized  tools to help them control situations with finesse while orchestrating as peaceful an ending as possible. For all of the training, guidance and equipment the public has come to expect a lot out of its enforcers For the most part communities stand shoulder to shoulder with their officers against crime and they are often willing to accept the imperfect outcomes of police use of force. 

In 2005, the State of Florida passed sweeping legislation that allowed all persons, not just police officers, to stand their ground against an imminent assault for the purpose of self defense or the defense of others. Previously, average citizens had a duty to retreat from a threat and a duty to desist from engaging an overt physical attack upon them. Stemming from English Common Law, citizens were required to retreat "until their backs were against the wall." But that all changed in response to the proliferation of home invasions and carjackings observed in the 80s and 90s. Legislators recognized the many problems associated with requiring citizens to flee from their homes or cars simply to avoid conflict with the trespasser. Rather, the news laws now allowed citizens to stand up against personal invasion and to protect themselves or their property with violence if necessary.  Within a few years, several other States adopted some version of Florida’s stand your ground provisions availing new self-protection rights to millions of Americans. 

The consequence of this sweeping legislation is that it brought the average citizen in a very important way on par with law enforcement officers. Though it is true that average Americans still cannot generally use physical force to make arrests or prevent a prisoner's escape, they can now use force to protect themselves or others and they can do it without first retreating or desisting from the threat of an attack. The public, including law enforcement, has been slow to realize that now many American's in Stand your Ground States have a legal right to protect themselves using force, including deadly force if necessary and are now equally protected criminally and civilly in the hindsight of the violence. 

The major difference between police investigations of law enforcment use of force and civilian use of force is in the presumption that a crime has been committed during the initial onset of the investigation. As I previously noted, it is naturally assumed that when a police officer causes injury or death to another, that the use of violence was necessary to effect some lawful objective (make arrests, prevent escapes or self-defense).The investigator will often tackle the investigation looking for evidence to tell the story of why the law enforcement officer was required to use force. This is a psychological phenomena known as confirmation bias. 

The police officer who was involved in the use of force is almost immediately sent home after a quick debriefing. He or she is given time to rest, collect their thoughts, talk to a union attorney or private attorney (or both), given time to sleep (generally 24-72 hours) before writing a formatted report describing his or her actions. All of this is usually done before the officer is exposed to a formal criminal interview. Quite often the police officer is provided a force matrix and specific language that is used to account for and describe the officer's reasons for using force. In other words, police officers who use force are provided significant resources by the criminal justice system to justify their actions. By the time a formal statement is given, it is highly refined and brilliantly polished in anticipation of the coming media and judicial enquiries. Again, this is not to suggest or imply that anything is wrong or corrupt with this practice. It is part of organizational professionalism to show how an officer's actions are consistent with policy and law. 

Consider now what happens when a citizen uses violence in self defense. Like in the above description of events police investigators will show up to the scene to investigate. However, rather than naturally assuming the event was an act of self defense, the police investigator in the civilian case is looking for whether a crime has occurred (assault, battery, manslaughter, homicide, etc.). Raw violence often presents significant evidence that something terrible was perpetrated (blood, bruises, broken bones), particularly if the violence involves death. Without a pretext of self defense the bloody scene will often trigger a visceral effect in the investigator. Sometimes the only living witness is the one who used force and the investigator will often assume that anything that is said will be self serving. In this situation there is not a natural expectation on the part of the investigator that what they are observing might be a legal act of self defense. 

The actual victim, considering that the one who used force acted in self defense, will be immediately handcuffed and read his or her rights. They will be implicitly encouraged to not speak as any thing they say can and will be used against them. They will be immediately brought to the police station in the back of a police car. They will not be released or given time to rest, they will not be provided charts and language to justify their actions. They will be presented with a criminal interview immediately and their words, if they choose to speak, will be used against them...

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.