In the State of Florida, it is illegal for a convicted felon to possess a firearm. Possession of a firearm by a convicted felon is a second-degree felony punishable by up to 15 years in prison.
However, Florida also allows its citizens to defend their homes and lives with the use of lethal force. Florida’s self-defense law permits the use of lethal force inside of your home without any provocation or threat on the part of the intruder. In other words, if you are in your home and a person enters your home unlawfully, the law presumes that the intruder means to do you harm and you may use absolute lethal force against the intruder. The intruder need not be armed.
Florida’s Stand Your Ground law applies this “Castle Doctrine” to any place outside of your home where you have a legal right to be. If you are in public or in your car or anywhere you are allowed to be (you cannot use Stand Your Ground if you are committing a crime), you may use lethal force if somebody threatens you with lethal force or great bodily harm or if somebody attempts to kill or seriously injure you.
But where do convicted felons fall into things?
The Florida Supreme Court has decided to resolve this issue. Appellate districts around the state have issued differing opinions on this matter. Some districts believe that a convicted felon cannot claim Stand Your Ground immunity since they have no legal right to possess a firearm.
Other districts believe that being a convicted felon does not matter when asserting Stand Your Ground, so long as the other prongs of the law are met.
I believe that the Florida Supreme Court will side with the notion that all citizens have an absolute right to defend their lives, regardless of legal status. A convicted felon cannot legally possess a firearm, but if a person’s life is in jeopardy, then the use of an instrument of self-defense could be seen as a necessity.
Florida recognizes necessity as a defense to a crime. Florida Standard Jury Instruction 3.6(k) states that “it is a defense to the (crime charged) if the defendant acted out of necessity.”
The jury instruction goes on to list the elements of necessity as follows:
The defendant reasonably believed a danger/emergency existed which was not intentionally caused by himself/herself.
The danger/emergency threatened significant harm to himself/herself/a third person.
The threatened harm must have been real, imminent, and impending.
The defendant had no reasonable means to avoid the danger/emergency except by committing the crime.
The crime charged must have been committed out of necessity to avoid the danger/emergency.
The harm that the defendant avoided must outweigh the harm caused by committing the crime.
This defense goes hand-in-hand with the principals of self-defense/Stand Your Ground. It is a crime to murder or seriously injure somebody. But the law recognizes that this criminal act is excusable if you commit it in order to defend yourself or another.
I believe that the Florida Supreme Court will draw guidance from the necessity jury instruction, finding parallels between that defense and the principals contained within Stand Your Ground.
Stand Your Ground was passed in Florida so that ordinary citizens did not have to fear civil suits and prosecution for protecting their lives or the lives of others. I believe that the Florida Supreme Court will deem it a necessity to use a gun in the event of a life-threatening emergency and will permit Stand Your Ground to apply to convicted felons.
Eric Matheny is a criminal defense attorney serving Miami-Dade and Broward.