The State of Florida has some of the toughest laws in the country regarding
violent crime. Laws, such as Florida's famous
10-20-Life law, impose mandatory sentences on offenders who use firearms during the
commission of their crimes.
Broken up into four basic components, Florida's Stand Your Ground law
basically outlines the following:
1)It establishes that law-abiding residents and visitors may legally presume
the threat of bodily harm or death from anyone who breaks into a residence
or occupied vehicle and may use defensive force, including deadly force,
against the intruder.
2)In any other place where a person “has a right to be,” that
person has “no duty to retreat” if attacked and may “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 to prevent the commission of a forcible felony.”
3)In either case, a person using any force permitted by the law is immune
from criminal prosecution or civil action and cannot be arrested unless
a law enforcement agency determines there is probable cause that the force
used was unlawful.
4)If a civil action is brought and the court finds the defendant to be
immune based on the parameters of the law, the defendant will be awarded
all costs of defense.
So what does this all mean?
Let's start with Number One. The law permits you to use deadly force
against anybody who breaks into your residence or occupied vehicle. That
means, if somebody commits a
against you, you have an absolute right to use lethal force against that
intruder. This right also extends to your car, because as you may know
- breaking into an occupied car, such as an attempted carjacking, is considered
a type of burglary. If somebody tries to break into your car while you
are inside of it, Stand Your Ground permits the use of lethal force as well.
Regarding Number Two, this is the most controversial prong of the law,
and one that is most frequently tested in the courts. As a
Miami-Dade County criminal defense attorney, I know that the Miami-Dade State Attorney's Office and the Broward
State Attorney's Office sometimes file criminal charges against people
whose self-defense rights may be protected under this law. Everyday, people
are charged with aggravated assault, aggravated battery,
, and even murder for using force (sometimes deadly) against their own
Number Two states that in any place you have a right to be, you have no
duty to retreat if attacked. First of all, you must be in a place where
you have a right to be. Generally, this means the public. You do not have
a right to be in somebody else's home or backyard if you do not have
that person's permission. Otherwise, you may find yourself on the
receiving end of this law's protection. Public may mean the roadway,
a parking lot, or a shopping center, just to name a few. Additionally,
Number Two states that you have no duty to retreat (or run away), and
that you may meet force with force, even deadly force, if you reasonably
believe it is necessary to prevent harm or death to yourself or another,
or to prevent the commission of a forcible felony. Examples of forcible
felonies would be robbery (armed or strongarm), burglary of an occupied
conveyance, carjacking, aggravated assault, aggravated battery, or
Let's do two quick hypotheticals to see how well you understand this law.
The first hypo deals with Number One of the Stand Your Ground law.
1) Homeowner is asleep one night and hears crashing sounds coming from
downstairs. Homeowner peers outside his bedroom door and sees a shadowy
figure trying to pry a flat screen television off the wall. Homeowner
grabs his gun from his nightstand, tip-toes downstairs, and shoots the
intruder in the back. Homeowner does not provide a verbal warning to the
intruder, just fires. The intruder falls dead. The intruder is unarmed.
In this situation, Homeowner would not be arrested or prosecuted. His protection
under Stand Your Ground is absolute. It doesn't matter if the intruder
wasn't armed, or if Homeowner didn't shout, "Freeze!"
or "Don't move!" The Homeowner doesn't have to hold
the intruder down at gunpoint and call the police. Florida's Stand
Your Ground law is very clear in this situation. If someone breaks into
your home, you may use lethal force against that intruder. The intruder
need not be armed.
This situation is less common for criminal defense attorneys because the
law is so clear. However, this next situation is where Stand Your Ground
becomes so important as a defense.
2) Driver is circling the parking lot at Publix for what seems like an
eternity. He finally finds a spot. Just as he is pulling in, Young Punk
zips in in front of him, stealing the spot and nearly taking off Driver's
front bumper. Driver is upset, and lowers his window to exchange words
with Young Punk. Young Punk has a cocky, cavalier attitude, and mutters
some choice, if not threatening words back to Driver. Angrily, Driver
concedes defeat, pulls away from the parking spot, but not before giving
Young Punk the middle finger. This gesture infuriates Young Punk, who
gets out of his car and begins approaching Driver's vehicle. Young
Punk is moving toward Driver's vehicle in a threatening manner. Young
Punk also has his right hand underneath his shirt, seemingly grabbing
for something tucked into his waistband. Driver, who has a concealed weapons
permit, reaches for his .38 in his glove box. As Young Punk continues
to approach Driver's car, he does not remove his hand from his waistband.
Driver believes that he has just upset Young Punk so much that Young Punk
is about to pull a gun on him. From his car, Driver aims his .38 out the
open window, and tells Young Punk, "Back off!" Young Punk puts
his hands up. There is nothing in his waistband. Young Punk darts back
to his own car, grabs his cell phone, and calls the police. Driver is
arrested and charged with aggravated assault with a firearm.
This situation is common, and is not as clearly defined in the Stand Your
Ground law as the first scenario. In this situation, Driver had a reasonable
belief that Young Punk was approaching his car with the intent to do harm,
and in the possession of a weapon. Being in fear for his safety, Driver
threatened deadly force by aiming his gun at Young Punk. However, by aiming
a gun at somebody, Driver has committed the crime of aggravated assault
with a firearm. He has never been arrested, he has a wife and two children
in college, and is the owner of a small business. But now he will go to
jail, have to post a bond, and will face felony charges that carry a minimum
mandatory term of three years in state prison.
It's in situations like these where the hiring of a criminal defense
lawyer is so important. In my professional opinion, Driver had every right
under Stand Your Ground to show Young Punk his weapon. He possessed a
reasonable belief that Young Punk was approaching his car with the intent
of assaulting, or maybe seriously injuring Driver. Unfortunately, the
police will arrive at the scene and question Young Punk. Young Punk will
admit that the two men got into an argument over a parking space, but
that Driver then pulled a gun. Driver, who has never been in trouble and
truly believes he is right, admits to the officer that he did pull a gun
on Young Punk. Knowing that Driver has a gun in the car, the officer searches
the glove box and finds a loaded .38 caliber. The .38 is impounded as
evidence, and Driver is arrested.
This is just one of many factual scenarios where ordinary citizens are
arrested and prosecuted for exercising their right to self-defense. When I was a
prosecutor in Miami-Dade County
, I prosecuted many aggravated assault, aggravated battery, and other violent
felonies where Stand Your Ground protection was claimed by the defense
attorneys. I know that situations are not always clear, and that good
lawyering is needed in order to bring the truth to light.
If you are in your home and you use non-lethal or lethal force against
an intruder, chances are the law is 100% on your side. The police will
ask you a few questions, and then decide pretty quickly that you were
right, and the dead intruder was wrong. You won't get arrested and
you won't get prosecuted.
If the intruder was shot on your property, but not in or around your home
(you shot an intruder climbing over the fence to your yard), you may have
problems. This may be a situation in which you contact a criminal defense attorney.
If your situation involves a confrontation out in public, then it is in
your best interest to get an attorney right away because chances are,
you will be charged. In the hypothetical between Driver and Young Punk,
the only evidence is the statement of Young Punk, the "victim,"
the admission by Driver that he did pull a gun, the actual gun itself,
and nothing more. It's a he-said, he-said situation except the Defendant,
Driver, has admitted pulling a gun, and a gun was actually found. Without
good legal work, Driver could be convicted and sent to prison.
Say Driver hires a qualified criminal defense attorney who has experience
with the Stand Your Ground defense. The defense attorney pulls Young Punk's
criminal record to find that he is a six-time convicted felon. Furthermore,
the defense attorney subpoenas the parking lot security footage from Publix,
which clearly shows Young Punk getting out of his car and approaching
Driver's side window with his hand in his waistband. Defense attorney
takes a deposition of Young Punk wherein Young Punk admits that he did
get out of his car, and he did have his hand in his waistband, but only
because he wanted to scare Driver.
Defense attorney files a sworn motion to dismiss, and the motion is granted.
Defense attorney is able to
Where the law is clear but the facts are not, the hiring of a good criminal
defense attorney can be a powerful tool. We defense lawyers have the ability
to investigate and discover evidence otherwise looked over, or not found
by police officers and detectives. With so many cases being processed
through the Miami-Dade State Attorney's Office and the Broward State
Attorney's Office, sometimes matters are not given as much scrutiny
as they should. In our scenario with Driver and Young Punk, the arresting
officer is going to write up a one-page affidavit stating that,
"Defendant and Victim got into a verbal argument over a parking space.
Defendant became enraged and produced a firearm which he pointed at Victim
and stated, "Back off." Defendant spontaneously admitted that
he aimed a gun at Victim. Search of Defendant's vehicle revealed a
Smith & Wesson .38 caliber revolver in the glove compartment. Firearm
was loaded with six hollow-point defensive rounds. Firearm impounded under
police case number and Defendant arrested and transported to T.G.K."
The intake prosecutor will speak with two people. The arresting officer
and Young Punk. The prosecutor will have more than enough evidence to
file aggravated assault with a firearm charges.
The law is there to protect us, but it can be frustrating, even frightening,
when the law is against us. Don't take chances, especially when firearm
mandatory minimum sentences are in play.
Call me today
and we can discuss your matter further.