When a person in Florida uses force against another, it may result in a criminal charge such as Assault, Battery, Manslaughter or Murder, just to name a few. However, it is a defense to such a charge if the person accused of using force was justified in doing so. Florida law defines the justifiable use of force in Chapter 776, of the Florida Statutes.
Traditionally, the justifiable use of force in Florida was known as “self-defense” or the “defense of others”. The traditional “self-defense” aspect of the law is still available. Under the old law, a person had a duty to retreat, if possible, and could not defend a home/property with force. The defense had to be asserted as an affirmative defense at trial only.
Florida’s so called “Stand your Ground” law allows for the defense of yourself or another without a duty to retreat. It creates a presumption that a person in a home is in reasonable fear of imminent harm when someone unlawfully enters their home, and therefore is justified in the use force. The law even extends outside the home when it states that if a person is not engaged in an unlawful activity and is attacked while in a place where the person has a right to be, he may stand his ground and have no duty to retreat- and may meet force with force, including deadly force, if he reasonably believes it necessary to do so to prevent death or great bodily harm to himself or another, or to prevent the commission of a forcible felony.
Furthermore, a person who asserts the Stand Your Ground law has a right to a pre-trial judicial determination as to whether he falls under the protection of the law; and, if so, he is immune from prosecution and may recover money damages if wrongfully arrested or prosecuted for the use of force under such circumstances.
Practically, this allows an attorney to seek to avoid the arrest and prosecution of a client who is accused of the unlawful use of force. Even if a client is arrested, a motion may be filed with the court to have the client declared immune from prosecution. This way we can get a hearing with the Judge and if we prove by a preponderance of evidence that the use of force falls under the Stand Your Ground law, the case must be dismissed. If successful the client never faces the risk of a jury trial.
If the judge isn’t willing to dismiss the case based on the Stand Your Ground Law, an attorney may still assert a traditional affirmative defense of justifiable use of force, such as a self-defense claim, at trial.