For those of you who frequently read this blog, it is no surprise that I am a firm advocate of self-defense. I am a card-carrying member of the NRA, a concealed weapon permit holder, the owner of multiple firearms, and a trained submission grappler.
In other words, I believe that the police are good for two things when it comes to defending your life and the lives of others. They will (1) take a photograph of your dead or otherwise severely injured body, and (2) write a report.
In a life-or-death situation, the police will not be able to save you. A 911 response takes longer than the amount of time you have.
But before you do anything, you ought to know the law in the State of Florida and how it applies to the use of force.
I have discussed Florida's Stand Your Ground Law and the use of lethal force. For today's discussion, let's talk about times when lethal force is not permitted by law but non-lethal force is.
Non-deadly force, or force that doesn't kill your opponent, is justified in Florida. In situations where you are threatened with non-deadly force you have an absolute right to respond with your own non-deadly force.
Florida's standard jury instruction for the justifiable use of non-deadly force (3.6.(g)) defines "non-deadly force" as, "force not likely to cause death or great bodily harm."
For example, shooting somebody with a firearm would be deadly force. Striking somebody with your fist would be an example of non-deadly force.
Under Florida law, Section § 776.012, self-defense or the defense of another person provides for the following standard jury instruction:
"The defendant would be justified in using non-deadly force against the alleged victim if the following two facts are proved: (1) Defendant must have reasonably believed that such conduct was necessary to defend himself or a third person against the alleged victim's imminent use of unlawful force against the defendant or the third person; and (2) The use of unlawful force by the alleged victim must have appeared to the defendant to be ready to take place."
What this says is that the defendant (the person who is criminally charged for using non-deadly force) must have reasonably believed that the use of non-deadly force was necessary to either defend him or herself, or a third person. Also, the "victim's" use of force or threat of force must have been imminent, or present at the precise moment the non-deadly force was used.
You cannot use non-deadly force to retaliate when your opponent is not being the aggressor or has retreated from being aggressive. If somebody threatens to hit you, then walks away, you cannot chase them down and beat them from behind and claim self-defense. The use of non-deadly force was not justified in this scenario because the threat of harm was not imminent.
How about the use of non-deadly force to protect your property?
Under Florida law, Section § 776.031, defense of property provides for the following standard jury instruction:
"The Defendant would be justified in using non-deadly force against (victim) if the following three facts are proved: (1) The alleged 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 immediate family or household, or in the possession of some person whose property he was under a legal duty to protect; and (3) The Defendant must have reasonably believed that his use of force was necessary to prevent or terminate the alleged victim's wrongful behavior."
This is different from Stand Your Ground, which permits the unrestricted use of lethal force against an intruder
inside of your home, or attempting entry inside of your own
. This provision addresses intruders on your property, not inside your home.
You cannot shoot and kill a trespasser in Florida. You will be prosecuted and charged with murder.
You can use non-deadly force against a trespasser if the trespasser is, in fact, trespassing, you have some possesory interest in the property, and you reasonably believe that the non-deadly force is necessary to prevent or put an end to the trespasser's behavior.
If the trespasser attacks you or pulls out a weapon, you may use force commensurate with the attack. If the trespasser pulls a weapon, Florida law permits the use of lethal force if you reasonably believe it is necessary to save your life. Even if the trespasser is unarmed but is physically superior to you (you are 5'6, 150 pounds, the trespasser is 6'5, 300 pounds), you may use lethal force as Florida courts consider the physical differences of defendant and victim in self-defense cases. It is reasonable that an unarmed attack by somebody so much larger and stronger could kill you and that an unarmed response would be futile.
Florida is a "No Duty to Retreat" jurisdication, meaning that when confronted with force or the threat of force, you have no legal obligation to run away from your attacker.
The case of Novak v. State, 974 So. 2d 520 (4th DCA 2008) stands for the proposition that there is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crime(s) for which the defendant asserts the justification. If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or a third person or to prevent the commission of a forcible felony.
This provision is important in that victims of aggression do not have to retreat before resorting to the use of force. Some jurisidictions, believe it or not, require the victim of a confrontation to at least attempt to flee before resorting to force.
Florida wisely believes that human beings have an inherent right to defend their own lives.
So when is the use of non-deadly force
not
justified?
The use of non-deadly force is not justified if the aggressor was retreating or attempting to retreat and was no longer showing aggression. It is also not justified if the defendant initially provoked the use of force against himself. In other words, you started it.
However, you may still be entitled to justified use of non-deadly force, even if you started the confrontation, if:
(a) The force asserted toward the defendant was so great that he reasonably believed that he 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 the assailant.
(b) In good faith, the defendant withdrew from physical contact with the assailant and indicated clearly to the assailant that he wanted to withdraw and stop the use of non-deadly force, but the assailant continued or resumed the use of force.
In layman's terms, section (a) states that while you may have started the confrontation, the force asserted against you is far greater than that asserted against the opponent. In this scenario, the defendant must make efforts to flee. If you are now running away from the person you initially confronted and he or she is coming at you will greater force than you provided, you may lawfully defend yourself.
Section (b) states that even though you started the confrontation, you retreated but your opponent continues to use force. You may now defend yourself.
You will see that these statutory provisions are incorporated into our jury instructions. You know what that means? That means that since the justifiable use of non-deadly force is a defense to criminal charges, people who use justifiable non-deadly force are still charged with crimes. Often it is up to a jury to decide whether the accused was lawfully defending themselves or others.
Use of non-deadly force is typically a defense to battery,
assault, or any felony variants of those crimes.
I am a criminal defense attorney who represents clients where the use of non-deadly force is a defense to their charges. I serve clients in Miami-Dade and Broward exclusively.
Call me today if you or a loved one have been charged with a crime and you believe that there may be a use of non-deadly force defense available to the charge or charges.