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Stand Your Ground vs. Justifiable Use of Deadly Force

The George Zimmerman/Trayvon Martin incident has shed considerable light on Florida's "Stand Your Ground" law. Under this law, a person who is in a place where they have a right to be can use deadly force - without having to attempt a retreat - if they reasonably believe that deadly force is absolutely necessary to save their life, the life of another, or prevent seriously injury to themself or another.

Self-defense, however, is something different. Section 3.6(f) of the Florida Standard Jury Instructions In Criminal Cases is for trial. A Stand Your Ground claim only comes in the form of a pretrial motion whereby the defense asks the Court for prosecutorial immunity. Let me explain.

Stand Your Ground is not a trial defense. You don't go to trial and raise a Stand Your Ground claim before a jury. The Stand Your Ground law, as defined in Florida Statute section 776.013, provides for immunity from prosecution if

"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 reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."

Since the remedy provided by the statute is immunity, you cannot be put on trial if the Court finds that you acted within the bounds of the law. So if you are somewhere where you have a right to be - say a public parking lot - and somebody tries to carjack you at gunpoint, you do not have to run away. You can resort to the use of lethal force to either prevent the commission of the forcible felony (the carjacking), or because you believe such force is necessary to prevent death or great bodily harm.

If the victim of that attempted carjacking shoots and kills the carjacker and is subsequently arrested and charged with murder or manslaughter, you'd better believe that a Stand Your Ground claim is warranted. Everyone who moves for a declaration of immunity under Stand Your Ground is entitled to a pretrial hearing. At that hearing, the defense carries the burden of proof and must demonstrate to the Court by a preponderance of the evidence, that the accused acted in conformity with the Stand Your Ground law. This hearing, which occurs before a jury is even empanelled, permits the Court to decide whether the accused is immune from prosecution. If the Court decides that the accused is immune, then the case is dismissed. If the Court finds that the defense has failed to meet its burden and the accused is not entitled to immunity, the case will proceed to trial.

Justifiable use of deadly force, under the definition provided by jury instruction 3.6(f), is the trial defense. That is the defense that the jury will hear.

If you raise Stand Your Ground and do not prevail, you literally get a second bite at the apple by getting to raise the affirmative defense of justifiable use of deadly force before a jury.

The jury instruction states that a person is justified in using deadly force (force likely to cause death or great bodily harm) if they reasonably believe that such force is necessary to prevent imminent death or great bodily harm.

Furthermore - and much like the Stand Your Ground law - the jury instruction states

"If the defendant [was not engaged in an unlawful activity and] was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony."

So the jury instruction does permit an accused to argue to the jury that he or she had no duty to retreat if they were not engaged in criminal activity and they were in a place where they had a right to be.

You can see that Stand Your Ground and Justifiable Use of Deadly Force are similar. However, the remedies available are different. In 2005, the Florida legislature determined that victims of violent crime should not have to suffer the indignity of being put on trial for saving their own lives. That is where Stand Your Ground came from.

However, since no issue is black and white and facts can often be in dispute, the legislature also provided for a trial defense should a Stand Your Ground claim fail.

If a Stand Your Ground claim exists, at least on its face, it cannot hurt to file the motion. If you fail, you still have the trial defense available. Two bites at the apple. Two chances to beat your case.

Eric Matheny is a criminal defense attorney serving Miami-Dade County and Broward County. Eric Matheny is a former Miami-Dade prosecutor. Eric Matheny has handled thousands of criminal cases during the course of his career as both a prosecutor and criminal defense attorney, including Stand Your Ground and Justifiable Use of Deadly Force cases. Eric Matheny has tried approximately 50 cases in both Miami-Dade and Broward County.