Written by attorney N. Ryan Labar

Florida Stand Your Ground and Issues of Self Defense Occuring Outside the Home

I. Applicable Law

Under Florida Statute 776.032, “a person who uses force as permitted in §776.012, §776.013 or §776.031 is justified in using such force and is immune from criminal prosecution . . ."F.S. §776.032 (2012).

Florida Statute 776.012 states:

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. F.S. § 776.012 (2012).

Florida Statute 776.013(3) discusses the issue of duty to retreat and states:

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 reasonable believes it is necessary to do so to prevent death or great bodily harm to himself, herself or another or to prevent the commission of a forcible felony. F.S. § 776.013 (2012).

II. Material Facts in Dispute

In Peterson v. State,983 So.2d 27 (Fla. 1st DCA 2008), the defendant raised the issue of immunity under F.S. §776.032 via a motion to dismiss. The Court inPeterson held “that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes". Id. at 29.

It is well known that if there are material facts in dispute, a Motion to Dismiss under Florida Rule of Criminal Procedure 3.190 (c)(4) Motion should be summarily denied; however, the very concept of raising immunity as a defense under F.S. § 776.032 comports with the notion that there will be facts, most probably material facts, that are in dispute.

III. Who Makes the Decision Regarding Application of the Statute

The decision regarding immunity is not confined to the trial courts. The Fourth District Court inVelasquez v. State, expounded on the mechanism of F.S. §776.032 which provides that a law enforcement agency can make a determination regarding a citizen’s immunity before an arrest is even made. 2009 WL 223109 (Fla 4th DCA 2009). It mentions in part that, “the statute authorize[s] the immunity determination to be made by law enforcement officers, prosecutors, judges, and juries."Id. at 2.

IV. Timeline for Asserting the Defense

In enacting the Statute, however, the legislature “did not restrict the time frame for determining immunity, but rather provided a time continuum stretching across the entire criminal process."Id. This is further supported by the notion that any entity can apply the defense, from the very inception of the event, at the police investigatory level, all the way to the final stages at trial where a jury can acquit under the statute.

V. Burden of Proof

When a claim under the Statute is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches. Petersonat 29.

The Florida Supreme Court has quoted McCormick on what constitutes a preponderance of the evidence: “the most acceptable meaning to be given the expression, proof by preponderance seems to be proof which leads the jury to find the existence of the contested fact is more probable than its nonexistence. Thus the preponderance of the evidence becomes the trier’s belief in the preponderance of probability." McCormick on Evidence 575 (4th ed 1992). Department of Health and Rehabilitative Services v. M.B., 701 So.2d 1155 (Fla. 1997).

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