JUSTIFIABLE USE OF FORCE DEFENSE
SKILLED CRIMINAL DEFENSE IN ST. PETERSBURG
Florida recognizes the use of force as an affirmative defense in certain
situations. The circumstances under which deadly force can lawfully be
used differ somewhat from the circumstances under which non-deadly force
can be used, as set forth more fully below. Justifiable use of force is
often raised in situations where an accused person has been charged with
murder, manslaughter, assault, battery, or other crime of violence. Under
Florida law, a person is justified in using appropriate force to protect
him or herself, to protect another, or to protect his or her property.
Of course, the use of force must be commensurate with the threat, real
or perceived (you cannot, for example, shoot someone for pulling your
hair). Also, Florida law does not require a person to retreat from his
or her home, vehicle, or other place he or she has a lawful right to be
before meeting force with force. There are different rules altogether
for the use of force by police officers, which are also set forth below.
In addition to raising justifiable use of force as an affirmative defense
at trial, the issue may also be raised in a pre-trial motion to dismiss,
based on the provisions of Florida statutes § 776.012 and §
776.032(1). This is sometimes referred to as a "Stand Your Ground"
motion. When the defendant raises the issue of statutory immunity pre-trial,
the court must determine, by a preponderance of the evidence, that immunity
attaches. Unlike a motion to dismiss under Florida Rule of Criminal Procedure
3.190(c)(4), factual disputes are not, in and of themselves, a basis to
deny the motion. Instead, the court must apply an objective standard and
determine whether, based on the circumstances as they appeared to the
defendant when he or she acted, a reasonable and prudent person situated
in the same circumstances, and knowing what the defendant knew, would
have used the same force as the defendant did. If the motion is denied,
the accused person is not precluded from raising justifiable use of force
and an affirmative defense at trial.
-
Applicable Florida Statutes
The following is a list of statutes that govern the circumstances under
which the use of force is justified in defense of self, in defense of
another, and in defense of property. It also includes the circumstances
under which immunity from prosecution attaches for the justified use of
force and special provisions pertaining to the use of force by law enforcement officers.
- Florida statute § 776.012: Use of force in defense of person
A person is justified in using force, except deadly force, against another
when and to the extent that the person reasonably believes that such conduct
is necessary to defend himself or herself or another against the other's
imminent use of unlawful force. However, a person is justified in the
use of deadly force and does not have a duty to retreat if: (1) he or
she reasonably believes that such force is necessary to prevent imminent
death or great bodily harm to himself or herself or another, or to prevent
the commission of a forcible felony; or (2) under those circumstances
permitted pursuant to s. 776.013.
- Florida statute § 776.013: Home protection; use of deadly force; presumption
of fear of death or great bodily harm
(1) A person is presumed to have held a reasonable fear of imminent peril
of death or great bodily harm to himself or herself or another when using
defensive force that is intended or likely to cause death or great bodily
harm to another if: (a) the person against whom the defensive force was
used was in the process of unlawfully and forcefully entering, or had
unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle,
or if that person had removed or was attempting to remove another against
that person's will from the dwelling, residence, or occupied vehicle;
and (b) the person who uses defensive force knew or had reason to believe
that an unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth is section (1) does not apply if: (a) the
person against whom the defensive force is used has the right to be in
or is a lawful resident of the dwelling, residence, or vehicle, such as
an owner, lessee, or titleholder, and there is not an injunction for protection
from domestic violence or a written pretrial supervision order of no contact
against the person; or (b) the person or persons sought to be removed
is a child or grandchild, or is otherwise in the the lawful custody or
under the lawful guardianship of, the person against whom the defensive
force is used; or (c) the person who uses defensive force is engaged in
an unlawful activity or is using the dwelling, residence, or occupied
vehicle to further an unlawful activity; or (d) the person against whom
defensive force is used is a law enforcement officer, as defined in s.
943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in
the performance of his or her official duties and the officer identified
himself or herself in accordance with any applicable law, or the person
using force knew or reasonably should have known that the person entering
or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked
in any other place where he or she has a right to be has no duty to retreat
and has the right to stand his or her ground and meet force with force,
including deadly force if he or she reasonably believes it is necessary
to do so to prevent death or great bodily harm to himself or herself or
another or to prevent the commission of a forcible felony.
(4) A person who unlawfully and by force enters or attempts to enter a
person's dwelling, residence, or occupied vehicle is presumed to be
doing so with the intent to commit an unlawful act involving force or violence.
(5) As used in this section, the term: (a) "Dwelling" means a
building or conveyance of any kind, including any attached porch, whether
the building or conveyance is temporary or permanent or mobile or immobile,
which has a roof over it, including a tent, and is designed to be occupied
by people lodging therein at night; (b) "Residence" means a
dwelling in which a person resides either temporarily or permanently or
is visiting as an invited guest; (c) "Vehicle" means a conveyance
of any kind, whether or not motorized, which is designed to transport
people or property.
- Florida statute § 776.031: Use of force in defense of others
A person is justified in the use of force, except deadly force, against
another when and to the extent that the person reasonably believes that
such conduct is necessary to prevent or terminate the other's trespass
on, or other tortious or criminal interference with, either real property
other than a dwelling, or personal property, lawfully in his or her possession
or in the possession of another who is a member of his or her immediate
family or household or of a person whose property he or she has a legal
duty to protect. However, the person is justified in the use of deadly
force only if he or she reasonably believes that such force is necessary
to prevent the imminent commission of a forcible felony. A person does
not have duty to retreat if the person is in a place where he or she has
a right to be.
- Florida statute § 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 in subsection (1).
- Florida statute § 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 terminates the use of force, but the
assailant continues or resumes the use of force.
- Florida statute § 776.05: Law enforcement officers; use of force in
making arrest
A law enforcement officer, or any person whom the officer has summoned
or directed to assist him or her, need not retreat or desist from efforts
to make a lawful arrest because of resistance or threatened resistance
to the arrest. The officer is justified in the use of any force:
(1) Which he or she reasonably believes to be necessary to defend himself
or herself from bodily harm while making an arrest;
(2) When necessary in retaking felons who have escaped;
(3) When necessarily committed in arresting felons fleeing from justice.
However, this section shall not constitute a defense in any civil action
for damages brought for the wrongful use of deadly force unless the use
of deadly force was necessary to prevent the arrest from being defeated
by such flight and, when feasible, some warning had been given, and: (a)
the officer reasonably believes that the fleeing felon poses a threat
of death or serious physical harm to the officer or others; or (b) the
officer reasonably believes that the fleeing felon has committed a crime
involving the infliction or threatened infliction of serious physical
harm to another person.
- Florida statutes § 776.051: Use of force in resisting arrest or making
an arrest or in the execution of a legal duty; prohibition
(1) A person is not justified in the use of force to resist an arrest by
a law enforcement officer, or to resist a law enforcement officer who
is engaged in the execution of a legal duty, if the law enforcement officer
was acting in good faith and he or she is known, or reasonably appears,
to be a law enforcement officer.
(2) A law enforcement officer, or any person who the officer has summoned
or directed to assist him or her, is not justified in the use of force
if the arrest or execution of a legal duty is unlawful and known by him
or her to be unlawful.
- Florida statutes § 776.06: Deadly force
(1) The term "deadly force" means force that is likely to cause
death or great bodily harm and includes, but is not limited to: (a) the
firing of a firearm in the direction of the person to be arrested, even
though no intent exists to kill or inflict great bodily harm; and (b)
the firing of a firearm at a vehicle in which the person to be arrested
in riding.
(2)(a) The term "deadly force" does not include the discharge
of a firearm by a law enforcement officer or correctional officer during
and within the scope of his or her official duties which is loaded with
less-lethal munition. As used in this subsection, the term "less
lethal munition" means a projectile that is designed to stun, temporarily
incapacitate, or cause temporary discomfort to a person without penetrating
the person's body; (b) a law enforcement officer or correctional officer
is not liable in any civil or criminal action arising out of the use any
less lethal munition in good faith during and within the scope of his
or her official duties.
- Florida statues § 776.07: Use of force to prevent escape
(1) A law enforcement officer or other person who has an arrested person
in his or her custody is justified in the use of any force which he or
she reasonably believes to be necessary to prevent the escape of the arrested
person from custody.
(2) A correctional officer or other law enforcement officer is justified
in the use of force, including deadly force, which he or she reasonably
believes to be necessary to prevent the escape from a penal institution
of a person whom the officer reasonably believes to be lawfully detained
in such institution under sentence for an offense or awaiting trial or
commitment for an offense.
- Florida statutes § 776.08: Forcible felony
"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.
-
Applicable Jury Instruction: Use of Deadly Force
Florida standard jury instruction 3.6(f) provides as follows:
An issue in this case is whether the defendant acted in self-defense. It
is a defense to the offense with which the defendant is charged if the
[death of][injury to] the victim resulted from the justifiable use of
deadly force.
"Deadly force" means force not likely to cause death or great
bodily harm.
The use of deadly force is justifiable only if the defendant reasonably
believes that the force is necessary to prevent imminent death or great
bodily harm to himself or herself while resisting: (1) another's attempt
to murder [him][her], or (2) any attempt to commit (applicable felony)
upon him or her, or (3) any attempt to commit (applicable felony) upon
or in any dwelling, residence, or vehicle occupied by him or her.
A person is justified in using deadly force if he or she reasonably believes
that such force is necessary to prevent: (1) imminent death or great bodily
harm to [himself][herself][another] or (2) the imminent commission of
(applicable forcible felony) against [himself][herself] or another.
However, the use of deadly force is not justifiable if you find: (1) the
defendant was attempting to commit, committing, or escaping after the
commission of (applicable forcible felony), or (2) the defendant initially
provoked the use of force against himself or herself unless (a) the force
asserted toward the defendant was so great that he or she reasonably believed
that he or she was in imminent danger of death or great bodily harm and
had exhausted every reasonable means to escape the danger, other than
using deadly force on (assailant), (b) in good faith, the defendant withdrew
from physical contact with (assailant) and clearly indicated to (assailant)
that he or she wanted to withdraw and stop the use of deadly force, but
(assailant) continued or resumed the use of force.
- Force in resisting a law enforcement officer
A person is not justified in using force to resist arrest by law enforcement
officer, or to resist a law enforcement officer who is engaged in the
execution of a legal duty, if the law enforcement officer was acting in
good faith and he or she is known, or reasonably appears, to be a law
enforcement officer.
However, if an office uses excessive force to make an arrest, then the
person is justified in the use of reasonable force to defend [himself][herself][another]
but only to the extent he or she reasonably believes such force is necessary.
In deciding whether the defendant was justified in the use of deadly force,
you must judge him or her by the circumstances by which he or she was
surrounded at the time the force was used. The danger facing the defendant
need not have been actual; however, to justify the use of deadly force,
the appearance of danger must have been so real that a reasonably cautious
and prudent person under the same circumstances would have believed that
the danger could be avoided only through the use of that force. Based
upon appearances, the defendant must have actually believed that the danger was real.
If the defendant [was not engaged in an unlawful activity and] was attacked
in any place where he or she had a right to be, he or she had no duty
to retreat and had the right to stand his or her ground and meet force
with force, including deadly force, if he or she reasonably believed that
it was necessary to do so to prevent death or great bodily harm to [himself][herself][another]
or to prevent the commission of a forcible felony.
- Presumption of fear (dwelling, residence, or occupied vehicle)
If the defendant was in a [dwelling][residence][occupied vehicle] where
he or she had a right to be, he or she is presumed to have had a reasonable
fear of imminent death or great bodily harm to [himself][herself][another]
if (victim) had [unlawfully and forcibly entered] [removed or attempted
to remove another person against that person's will from] that [dwelling][residence][occupied
vehicle] and the defendant had reason to believe that had occurred. The
defendant had no duty to retreat under such circumstances.
- Exceptions to presumption of fear
The presumption of reasonable fear of imminent death or great bodily harm
does not apply if: (a) the person against whom the defensive force is
used has the right to be in [or is a lawful resident of the [dwelling][residence]]
[the vehicle], such as an owner, lessee, or titleholder, and there is
not an injunction from protection domestic violence or a written pre-trial
supervision order of no contact against that person; or (b) the person
or persons sought to be removed is a child or grandchild, or is otherwise
in the lawful custody or under the lawful guardianship of the person against
whom the defensive force is used; or (c) the person who used defensive
force is engaged in an unlawful activity or is using the [dwelling][residence][occupied
vehicle] to further an unlawful activity; or (d) the person against whom
the defensive force is used is a law enforcement officer, who enters or
attempts to enter a [dwelling][residence][vehicle] in the performance
of [his][her] official duties and the officer identified himself or herself
in accordance with any applicable law or the person using the force knew
or reasonable should have known that the person entering or attempting
to enter was a law enforcement officer.
A person who unlawfully and by force enters or attempts to enter another's
[dwelling][residence][occupied vehicle] is presumed to be doing so with
the intent to commit an unlawful act involving force or violence.
As used with regard to self defense,
"Dwelling" means a building or conveyance of any kind, including
any attached porch, whether the building or conveyance is temporary or
permanent or mobile or immobile, which has a roof over it, including a
tent, and is designed to be occupied by people lodging therein at night.
"Residence" means a dwelling in which a person resides either
temporarily or permanently or is visiting as an invited guest.
"Vehicle" means a conveyance of any kind, whether or not motorized,
which is designed to transport people or property.
- Prior threats (give if applicable)
If you find that the defendant who because of threats or prior difficulties
with the victim had reasonable grounds to believe that he or she was in
danger of death or great bodily harm at the hands of the victim, then
the defendant had the right to arm himself or herself. However, the defendant
cannot justify the use of deadly force, if after arming himself or herself,
he or she renewed his or her difficulty with the victim when he or she
could have avoided the difficulty, although as previously explained if
the defendant was not engaged in an unlawful activity and was attacked
in any place where he or she had a right to be, he or she had no duty
to retreat.
- Reputation of victim (give if applicable)
If you find that the victim had a reputation of being a violent and dangerous
person and that his or her reputation was known to the defendant, you
may consider this fact in determining whether the actions of the defendant
were those of a reasonable prudent person in dealing with an individual
of that reputation.
- Physical abilities (read in all cases)
In considering the issue of self-defense, you may take into account the
relative physical abilities and capabilities of the defendant and victim.
If in your consideration of the issue of self defense you have a reasonable
doubt on the question of whether the defendant was justified in the use
of non-deadly force, you should find the defendant not guilty. However,
if from the evidence you are convinced that the defendant was not justified
in the use of non-deadly force, then you should find him or her guilty
if all the elements of the charge have been proved.
-
Applicable Jury Instruction: Use of Non-deadly Force
Florida standard jury instruction 3.6(g) provides as follows:
An issue in this case is whether the defendant acted in self-defense. It
is a defense to the offense with which the defendant is charged if the
[death of][injury to] the victim resulted from the justifiable use of
non-deadly force.
"Non-deadly" force means force not likely to cause death or great
bodily harm.
The defendant would be justified in using non-deadly force against the
victim if the following two facts were proved: (1) the defendant must
have reasonably believed that such conduct was necessary to defend [himself][herself][another]
against the victim's imminent use of unlawful force against the [defendant][another
person]; (2) the use of unlawful force by the victim must have appeared
to the defendant to be ready or take place.
The defendant would be justified in using non-deadly force against the
victim of the following three facts are provided: (1) the victim must
have been trespassing or otherwise wrongfully interfering with land or
personal property; (2) the land or personal property must have lawfully
been in the defendant's possession or in the possession of a member
of his or her immediate family or household, or in the possession of some
person whose property he or she was under a legal duty to protect; (3)
the defendant must have reasonably believed that his or her use of force
was necessary to prevent or terminate the victim's wrongful behavior.
- No duty to retreat (dwelling, residence, or occupied vehicle)
If the defendant is in his or her [dwelling][residence][occupied vehicle],
he or she is presumed to have held a reasonable fear of imminent peril
of death or bodily injury to [himself][herself][another] if the victim
has [unlawfully and forcibly entered][has removed or attempted to remove
another person against that person's will from] that [dwelling][residence][occupied
vehicle] and the defendant had reason to believe that had occurred. The
defendant had no duty to retreat under such circumstances.
A person who unlawfully and by force enters or attempts to enter another's
[dwelling][residence][occupied vehicle] is presumed to be doing so with
the intent to commit an unlawful act involving force or violence.
- No duty to retreat (location other than dwelling, residence or occupied vehicle)
If the defendant [was not engaged in an unlawful activity and] was attacked
in any place where he or she had a right to be, he or she had no duty
to retreat and had the right to stand his or her ground and meet force
with force, including deadly force, if he or she reasonably believed that
it was necessary to do so to prevent death or great bodily harm to [himself][herself][another]
or to prevent the commission of a forcible felony.
As used with regard to self defense,
"Dwelling" means a building or conveyance of any kind, including
any attached porch, whether the building or conveyance is temporary or
permanent or mobile or immobile, which has a roof over it, including a
tent, and is designed to be occupied by people lodging therein at night.
"Residence" means a dwelling in which a person resides either
temporarily or permanently or is visiting as an invited guest.
"Vehicle" means a conveyance of any kind, whether or not motorized,
which is designed to transport people or property.
A person does not have a duty to retreat if the person is in a place where
he or she has a right to be.
- Give only if the defendant is charged with an independent forcible felony
The use of non-deadly force is
not justified if you find: (1) the defendant was attempting to commit, committing,
or escaping after the commission of (applicable forcible felony); (2)
the defendant initially provoked the use of force against [himself][herself]
unless: (a) the force asserted toward the defendant was so great that
he or she reasonably believed that he or she was in imminent danger of
death or great bodily harm and had exhausted every reasonable means to
escape the danger other than using non-deadly force on (assailant).
- Force in resisting a law enforcement officer
A person is not justified in using force to resist arrest by law enforcement
officer, or to resist a law enforcement officer who is engaged in the
execution of a legal duty, if the law enforcement officer was acting in
good faith and he or she is known, or reasonably appears, to be a law
enforcement officer.
However, if an office uses excessive force to make an arrest, then the
person is justified in the use of reasonable force to defend [himself][herself][another]
but only to the extent he or she reasonably believes such force is necessary.
In deciding whether the defendant was justified in the use of non-deadly
force, you must judge him or her by the circumstances by which he or she
was surrounded at the time the force was used. The danger facing the defendant
need not have been actual; however, to justify the use of non-deadly force,
the appearance of danger must have been so real that a reasonably cautious
and prudent person under the same circumstances would have believed that
the danger could be avoided only through the use of that force. Based
upon appearances, the defendant must have actually believed that the danger was real.
- Reputation of victim (give if applicable)
If you find that the victim had a reputation of being a violent and dangerous
person and that his or her reputation was known to the defendant, you
may consider this fact in determining whether the actions of the defendant
were those of a reasonable prudent person in dealing with an individual
of that reputation.
- Physical abilities (read in all cases)
In considering the issue of self-defense, you may take into account the
relative physical abilities and capabilities of the defendant and victim.
If in your consideration of the issue of self defense you have a reasonable
doubt on the question of whether the defendant was justified in the use
of non-deadly force, you should find the defendant not guilty. However,
if from the evidence you are convinced that the defendant was not justified
in the use of non-deadly force, then you should find him or her guilty
if all the elements of the charge have been proved.
-
Applicable Jury Instruction: Justifiable Use of Force by Law Enforcement Officer
Florida standard jury instruction 3.6(h) provides as follows:
- In making an arrest of a felon
A law enforcement officer, or any person he or she has summoned or directed
to assist him or her, need not retreat from or stop efforts to make a
lawful arrest because of resistance or threatened resistance to the arrest.
The officer is justified in the use of any force that he or she reasonably
believes necessary to defend himself, herself, or another from bodily
harm while making the arrest. The force is also justifiable when necessarily
used: (1) in retaking a felon who has escaped; or (2) in arresting a felon
who is fleeing from justice.
- Force in making unlawful arrest or unlawful execution of a legal duty prohibited
Use of any force by a law enforcement officer or any person summoned or
directed to assist the law enforcement officer is not justified if: (1)
the [arrest][execution of a legal duty] is unlawful and (2) it is known
by the officer or the person assisting him or her to be unlawful.
- To prevent escape from custody
A law enforcement officer or other person who has an arrested person in
his or her custody is justified in the use of any force that he or she
reasonably believes to be necessary to prevent the escape of the arrested
person from custody.
- To prevent escape from a penal institution
A guard or other law enforcement officer is justified in the use of any
force that he or she reasonably believes to be necessary to prevent an
escape from a penal institution of a person the officer reasonably believes
is lawfully detained.
"Deadly force" includes but is not limited to (1) firing a firearm
in the direction of the person to be arrested, even though no intent exists
to kill or inflict great bodily harm; and (2) firing a firearm at a vehicle
in which the person to be arrested is riding.
A "firearm" means any weapon (including a starter gun" which
will, is designed to, or may readily be converted to expel a projectile
by the action of an explosive; the frame or receiver of any such weapon;
any firearm muffler or firearm silencer; any destructive device; or any
machine gun. The term "firearm" does not include an antique
firearm unless the antique firearm is used in the commission of a crime.
The following is a list of outside sources and other website sections related
to the justifiable use of force:
-
HG. Org: St. Petersburg Battery Defense Attorney
- HG. Org: St. Petersburg Assault Defense Attorney
- HG. Org: St. Petersburg Domestic Violence Defense Attorney
-
HG. Org:
Florida Sentencing Enhancements Pt. 4: 10-20-Life
- The Aggravated Assault Exceptions to Florida's 10-20-Life Statute
- What is a Stand Your Ground Immunity Motion?
- Pinellas County Jury Finds Kilfin Law Firm, P.C. Client Not Guilty of Aggravated Battery
- Assault & Aggravated Assault
- Battery & Aggravated Battery
Under the right set of circumstances, justifiable use of force can be a
very effective defense against charges alleging the commission of a violent
crime. Florida's statutory immunity provisions authorize the dismissal
of the case, pre-trial, where the court makes certain factual finding
related to the justifiable use of force. If the motion is not successful,
the defense may still be raised at trial and, in many instances, successfully.
If you have been charged with a violent crime in St. Petersburg, Clearwater,
Tampa, or a surroundign area, feel free to contact me at any time to discuss
the merits of a use of force defense in your case.