What is the “Stand Your Ground” Law?

Amending Self-Defense At Common Law 

Stand Your Ground is not technically a new law. In 2005, Florida legislators amended existing law to widen the scope of the existing common law. 

Lovett v. State, 30 Fla. 142, 163-64 (Fla. 1892) established the principle of an individual legally defending themselves if they believe that the force is necessary to prevent bodily harm or imminent death to themselves or another person. That has been in place for well over one hundred years. 

Before the introduction of Stand Your Ground, however, an individual could not use that deadly force without first using all reasonable means to retreat from the danger. Before Stand Your Ground, it meant that an individual must think very hard about their actions in situations where mere seconds could mean life or death and act out all reasonable measures to escape the violent attack before using deadly force. This principle was established in Weiand v. State, 732 So. 2d 1044 (Fla. 1999) and State v. Bobbitt, 415 So. 2d 724 (Fla. 1982).

The so-called “Castle Doctrine” was long recognized by Florida appellate courts, providing an exception for individuals to defend themselves with lethal force when the person using it is not the aggressor and when they are physically assaulted in or on their property. If the attack happened in a person’s dwelling, they were exempt from the obligation to retreat or take other non-violent measures to defuse the situation.

The Castle Doctrine was eventually also applied to places of business, but not to cases that involve co-occupants or co-workers attacking one another. 

State v. Smith, 376 So. 2d 261 (Fla. 3d DCA 1979) applied the Castle Doctrine to places of business, and State v. Bobbitt, 415 So. 2d 724 (Fla. 1982) stopped it from being applied to co-occupants in one residence. 

Under the “Castle Doctrine,” a person no longer needed to retreat from an attacker if the attack occurred in their home, but still required the owner of the building or the occupant to reasonably believe that their only course of action to defend themselves was taking the deadly action to prevent death or serious bodily harm. 

The Stand Your Ground law built on these decades-old examples of Common Law and broadened the scope of self-defense. 

How Things Stand Under Current Laws 

The Stand Your Ground law doesn’t create an entirely new kind of defense but instead broadens the scope of common law self-defense claims by doing the following three things:

1. Providing immunity to defendants if they can prove that the use of force falls within the statute’s specific protections.
2. Presumes legal justification for using deadly force in the event of violent attacks or unlawful entries of residences, vehicles, or dwellings.
3. Abolishes the “duty of retreat” rule and implements “Castle Doctrine” rules to all places where a person is legally present.  

Removing the Duty of Retreat 

Under § 776.012(2) of Florida Statutes, an individual may either use or threaten to use deadly force as long as they meet the following criteria: 

“[H]e or she reasonably believes that using or threatening to use 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.”

This part of the statute is a restatement of existing common law principles of self-defense, but it changes in § 776.012(2) on the issue of “retreat.”

“A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be (emphasis added),” it reads.

This change to the law means that in any scenario where a person is engaged in a legal activity, they do not need to retreat, disengage, or take other measures to calm the situation. It builds on the “Castle Doctrine” by making the same rules apply to any space where a person is legally present, meaning that somebody who has broken into a property without permission and claims self-defense will not find protection under this law.  

Building On Unlawful Entry 

The law was also expanded to protect anybody who uses deadly force to protect themselves against somebody who is attempting to gain unlawful property to their place of dwelling, residence, or vehicle. 

According to § 776.013(2), a person is presumed to have a reasonable fear of peril when somebody breaks into their property and may use threatening or deadly force as long as the following two conditions are met:

“(a) The person against whom the defensive force was used or threatened 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 or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.”

Under the law, a person must have “reasonable fear” in their dwelling, residence, or vehicle to act with deadly force or threaten deadly force. 

Furthermore, the law applies a new presumption to the attacker who is affected by deadly force from the victim.

 § 776.013(4) reads:

“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.”

This means that if a person is unlawfully present, they will be presumed to be doing so with the intent of committing violence or other unlawful acts.  

Immunity from Prosecution 

Under the Stand Your Ground law, immunity may be granted for an accused person if their actions are shown to fall within the provision set out within the statute. This is not guaranteed, and the defendant must show that their actions fell within the conditions stipulated in the law. This is one of the biggest departures from regular common-law self-defense claims.  

Common Law Offers No Immunity 

Under common law in Florida, there was no legal remedy for a defendant to pursue if they threatened or committed lethal force on self-defense grounds. 

Previously, a jury was tasked with deciding whether a person acted within justifiable self-defense. Juries would decide whether a person should be protected from criminal liability based on the facts established in the case. Before the Stand Your Ground rules, a person may have found themselves prosecuted for defending themselves in a public place.  

The Law Between 2005 and 2016 

When Stand Your Ground was passed in 2005, it offered complete immunity for defendants whose actions met the specified criteria. § 776.032 specified that a person was “immune from criminal prosecution and civil action” for using force within the parameters of the law. 

By “immune,” the law meant that if the defendant could establish before trial that their use of deadly force met the conditions of the statute, then the State of Florida would not be able to prosecute the individual. 

A Florida First District Court of Appeal decision,  Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008), outlined the procedures for a defendant to assert their immunity under Stand Your Ground rules. The decision established that 776.032 was made by Florida’s Legislature to create “true immunity” and not just an affirmative defense. The case established that defendants might raise the question of immunity during a pre-trial hearing, and when the claim is made, the burden of proof is then placed on the defendant to prove that they are immune under the law. The burden remained with the defendant to prove that they acted in self-defense and met the Stand Your Ground conditions after Dennis v. State, 51 So. 3d 456, 460 (Fla. 2010).

Defendants may file a Motion for Declaration of Immunity and/or Dismissal. When they are filed, a date is set for an evidentiary hearing in court where defendants would present evidence to show that they are immune under the law. If the court grants the motion, the case would be dismissed, but if it was denied because of a lack of compelling evidence, the case would proceed. 

However, the Petersen and Dennis decisions are controversial as they placed the burden of proof on the defendant and not on the state. Under Stand Your Ground rules until 2016, the burden of proof was not placed on the state as it would normally be in a trial situation.  

The Law from 2017 Onwards 

From 2017, the burdens and standards of proof in Stand Your Ground cases were changed. Florida’s Legislature amended the statute so that it only requires the defendant to put forward a prima facie case of immunity for self-defense. This meant that the burden moved to the prosecution – the state – to demonstrate that the individual did not act in self-defense. 

The state is now required to provide compelling evidence that a defendant is not eligible for immunity under Stand Your Ground laws. 

§ 776.032(4) now reads:

“In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).”

This means that the standard of proof has also been raised to “clear and convincing evidence” from “preponderance of the evidence” previously. 

Stand Your Ground’s Limitations 

There are some important limitations to the Stand Your Ground law which, among other things, ensure that people cannot abuse the law and seek immunity from prosecution after hurting or killing somebody for malicious reasons.  

1. Unlawful Presence and Criminality 

§§ 776.013(1) and 776.012(2) stipulate that those who are unlawfully present in a place or vehicle or who are engaged in other criminal activity cannot use the “no duty of retreat rule.” 

2. Aggressors and Forcible Felonies 

§ 776.041 ensures that those who are escaping after committing a forcible felony, attempting to commit a forcible felony, or committing a forcible felony are not protected by justifications for the use of force. 

If evidence shows the defendant was the initial aggressor in the incident, they will not be protected by the Stand Your Ground provisions.

For a person to successfully claim that they acted in self-defense, they are required under § 776.041 to show that they used all reasonable means short of using deadly force to remove themselves from the situation. They must also show that the degree of force used by the aggressor prompted them to reasonably believe that they were in imminent danger of being seriously hurt or killed due to their actions.

However, if a defendant was an initial aggressor, they can claim self-defense and immunity if they can prove that they:

- Withdrew from physical content in good faith.

- Clearly indicated to the aggressor that they did not want to continue with the aggression and use of force.

- The aggressor, despite withdrawal and communication stating that the defendant no longer wishes to engage, continued to use force.  

Scenarios Where Presumptions of Reasonableness Do Not Apply 

Finally, § 776.041 sets out four examples of where the presumption of reasonableness does not apply. 

These are:

1. The aggressor or the person who is subject to the defensive force is a lawful resident of the dwelling or resident or is legally allowed to be in the vehicle. Examples include titleholders, leaseholders, or owners. The exception does not, however, apply if the person is currently the subject of a no-contact order or an injunction.
2. The person who is subject to the defensive force was attempting to take their child or grandchild, or child who is legally in their guardianship, from the person who used the defensive force.
3. The person who either threatens or uses defensive force is using the dwelling, residence, or vehicle to commit criminal acts.
4. The person who is subject to the defensive force or who is threatened with defensive force is a law enforcement officer, and the officer has identified himself or herself to the person using force.