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Old July 4, 2013, 08:19 PM   #64
Frank Ettin
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Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,273
Quote:
Originally Posted by dave9969
...I can use deadly force to protect my home and possessions. This is further extended to my vehicle ie in a parking lot etc I can defend it and myself with deadly force legally....
Not exactly. You're leaving out or skipping over a lot of very important details, and details matter. I'll lay things out below.

So since Florida law has been brought up, let's look at it in some detail.

I outlined the general Florida use of force law in this post:
Quote:
...Too many people have extravagant and unrealistic expectations of Castle Doctrine/Stand Your Ground laws. People need to understand what they mean and how they work. They can help someone who has legitimately used force in self defense establish that his use of force was justified, but they are not "licenses to kill", "get out of jail free cards", or "commissions as a freelance vigilante."

I. How Pleading Self Defense Works

...


II. How a Castle Doctrine/Stand Your Ground Law Can Help

... we'll look specifically at Florida law. However, all the self defense/Castle Doctrine/Stand Your Ground laws I've looked at are pretty similar.

[1] In general, under Florida law the use of lethal force can be justified as provided in Title XLVI Florida Statutes, Section 776.012:
Quote:
...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.
[2] So if you claim your use of lethal force in self defense was justified, you will at least need to put forth evidence that the requirements of 776.012 were satisfied.

[3] The Florida's Castle Doctrine/Stand You Ground law at Section 776.013 helps by providing, among other things:
Quote:
(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:...
[3] A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

[4] So you can establish that your use of lethal force was justified, thus satisfying 776.012, if --
  1. You can show that

    1. The person you used force against 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..."; and

    2. You, "...knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred...."

  2. None of the exceptions in 776.013(2) apply.

And if you can do that, you don't have to specifically establish that you believed, "...that such force is necessary to prevent imminent death or great bodily harm to himself or herself...."

[5] But note that you don't get the presumption automatically. You need to show that the conditions that create the presumption exist. That might be easier than showing a fear of imminent death or great bodily harm, but you still must do some work to establish your claim of justification.

[6] And in the law, any available presumption is rebuttable. That means that even though one may be entitled to the benefit of a presumption as to a certain fact, the other side may try to prove that fact is not actually true. So, for example, even if you might have been entitled to a presumption that you were reasonably in fear for your life, the prosecutor could put on evidence and try to show that under the particular circumstances, a reasonable person could not have been reasonably in fear for his life.

III. The Bottom Line

Every Castle Doctrine/Stand Your Ground law has conditions, in general similar to those under the Florida statute, that you will need to show have been satisfied in order to be protected under those laws.
Another point of Florida law, which is really found in some form in the laws of every State is that one may not claim justification for an act of violence if he initiated the conflict. I outlined the specific Florida law in this post:
Quote:
Quote:
Originally Posted by KyJim
As I was glancing through the thread, I kept looking for mention of the "initial aggressor" limitation to the right of self-defense and its interplay with the "no duty to retreat" doctrine....
An excellent point, and it kind of got lost. Here's the Florida version, 776.041:
Quote:
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.
Quote:
Originally Posted by KyJim
...The initial aggressor limitation essentially takes away the right to use self-defense and make the no duty to retreat doctrine moot if the suspect/defendant is the initial aggressor....
I agree.
Florida appears to be unique in the manner it deals with the immunity provided under its Castle Doctrine law for a justified use of force. I outlined that feature of Florida law in this post:
Quote:
...As the laws of a number of States now do, Florida law provides for immunity from criminal prosecution and from civil suit for someone who uses force in justified self defense. See 776.032:
Quote:
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
The difficulty is that there will always be some threshold questions to be decided before it can be determined whether or not immunity applies. Immunity only applies when the use of force meets all the legal requirements for justification.

In Florida, as provided under 776.032, that would mean that the defendant's use of force was, "...as permitted in s. 776.012, s. 776.013, or s. 776.031..."; and each of those statutes has conditions that must be satisfied for there to be a finding of justification. If the DA agrees that someone's use of force was justified, that would resolve at least the criminal side of things.

Issues, however, arise when the DA thinks someone's use of force was not justified. If there is that fundamental disagreement, there needs to be a way to resolve it. Ordinarily, that would be done at a trial, as described above, in post 16, under "I. How Pleading Self Defense Works." Florida has established a slightly different procedure.

In Dennis v. State, 51 So.3d 456 (Fla., 2010), the Supreme Court of Florida ruled:
Quote:
We conclude that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. ... and [we] approve the reasoning of Peterson on that issue.
And in Peterson v. State, 983 So.2d 27 (Fla. App., 2008), referred to by the Florida Supreme Court, the appellate court ruled:
Quote:
Petitioner seeks a writ of prohibition to review an order denying his motion to dismiss based on the statutory immunity established by section 776.032(1), Florida Statutes (2006). We deny the petition and hold that a criminal defendant claiming protection under the statute must demonstrate by a preponderance of the evidence that he or she is immunized from prosecution...
Based on these seminal Florida court decisions, if a defendant is charged with a crime (or, it would appear, sued) based on a use of force, and if the defendant claims justification as his defense, instead of raising self defense as an affirmative defense at trial --
  1. The defendant would raise his defense in a motion to dismiss based on the immunity provided under 776.032; and

  2. The court would hold an evidentiary hearing on the motion; and

  3. The defendant at that hearing would need to prove by a preponderance of the evidence that each element required for legal justification has been satisfied.

  4. Should the court deny the motion, it appears from certain language in Peterson that he would still be able to raise self defense as an affirmative defense at trial.
....
Quote:
Originally Posted by dave9969
...with no law degree in my possession I can only say that these are my opinions as such,...
And not all opinions are equal. The opinion of a professional with the education and experience to back it up is one thing and can warrant serious attention. The opinion of someone without such backup -- not so much.
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Last edited by Frank Ettin; July 5, 2013 at 09:03 PM. Reason: spelling
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