JUSTIFIABLE USE OF FORCE DEFENSE

SKILLED CRIMINAL DEFENSE IN ST. PETERSBURG

Florida recognizes the use of force as an affirmative defense in certain situations. The circumstances under which deadly force can lawfully be used differ somewhat from the circumstances under which non-deadly force can be used, as set forth more fully below. Justifiable use of force is often raised in situations where an accused person has been charged with murder, manslaughter, assault, battery, or other crime of violence. Under Florida law, a person is justified in using appropriate force to protect him or herself, to protect another, or to protect his or her property. Of course, the use of force must be commensurate with the threat, real or perceived (you cannot, for example, shoot someone for pulling your hair). Also, Florida law does not require a person to retreat from his or her home, vehicle, or other place he or she has a lawful right to be before meeting force with force. There are different rules altogether for the use of force by police officers, which are also set forth below.

In addition to raising justifiable use of force as an affirmative defense at trial, the issue may also be raised in a pre-trial motion to dismiss, based on the provisions of Florida statutes § 776.012 and § 776.032(1). This is sometimes referred to as a "Stand Your Ground" motion. When the defendant raises the issue of statutory immunity pre-trial, the court must determine, by a preponderance of the evidence, that immunity attaches. Unlike a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), factual disputes are not, in and of themselves, a basis to deny the motion. Instead, the court must apply an objective standard and determine whether, based on the circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances, and knowing what the defendant knew, would have used the same force as the defendant did. If the motion is denied, the accused person is not precluded from raising justifiable use of force and an affirmative defense at trial.

Applicable Florida Statutes

The following is a list of statutes that govern the circumstances under which the use of force is justified in defense of self, in defense of another, and in defense of property. It also includes the circumstances under which immunity from prosecution attaches for the justified use of force and special provisions pertaining to the use of force by law enforcement officers.

Florida statute § 776.012: Use of force in defense of person

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. However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony; or (2) under those circumstances permitted pursuant to s. 776.013.

Florida statute § 776.013: Home protection; use of deadly force; presumption of fear of death or great bodily harm

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if: (a) the person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and (b) the person who uses defensive force knew or had reason to believe that an unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth is section (1) does not apply if: (a) the person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against the person; or (b) the person or persons sought to be removed is a child or grandchild, or is otherwise in the the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or (c) the person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or (d) the person against whom defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) 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.

(4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

(5) As used in this section, the term: (a) "Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night; (b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest; (c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Florida statute § 776.031: Use of force in defense of others

A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling, or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have duty to retreat if the person is in a place where he or she has a right to be.

Florida statute § 776.032: Immunity from criminal prosecution and civil action for justifiable use of force

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.

(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution in subsection (1).

Florida statute § 776.041: Use of force by aggressor

The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless: (a) such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or (b) in good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminates the use of force, but the assailant continues or resumes the use of force.

Florida statute § 776.05: Law enforcement officers; use of force in making arrest

A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:

(1) Which he or she reasonably believes to be necessary to defend himself or herself from bodily harm while making an arrest;

(2) When necessary in retaking felons who have escaped;

(3) When necessarily committed in arresting felons fleeing from justice. However, this section shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and: (a) the officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or (b) the officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person.

Florida statutes § 776.051: Use of force in resisting arrest or making an arrest or in the execution of a legal duty; prohibition

(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

(2) A law enforcement officer, or any person who the officer has summoned or directed to assist him or her, is not justified in the use of force if the arrest or execution of a legal duty is unlawful and known by him or her to be unlawful.

Florida statutes § 776.06: Deadly force

(1) The term "deadly force" means force that is likely to cause death or great bodily harm and includes, but is not limited to: (a) the firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and (b) the firing of a firearm at a vehicle in which the person to be arrested in riding.

(2)(a) The term "deadly force" does not include the discharge of a firearm by a law enforcement officer or correctional officer during and within the scope of his or her official duties which is loaded with less-lethal munition. As used in this subsection, the term "less lethal munition" means a projectile that is designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person's body; (b) a law enforcement officer or correctional officer is not liable in any civil or criminal action arising out of the use any less lethal munition in good faith during and within the scope of his or her official duties.

Florida statues § 776.07: Use of force to prevent escape

(1) A law enforcement officer or other person who has an arrested person in his or her custody is justified in the use of any force which he or she reasonably believes to be necessary to prevent the escape of the arrested person from custody.

(2) A correctional officer or other law enforcement officer is justified in the use of force, including deadly force, which he or she reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.

Florida statutes § 776.08: Forcible felony

"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Applicable Jury Instruction: Use of Deadly Force

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which the defendant is charged if the [death of][injury to] the victim resulted from the justifiable use of deadly force.

"Deadly force" means force not likely to cause death or great bodily harm.

Give if applicable

​The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself or herself while resisting: (1) another's attempt to murder [him][her], or (2) any attempt to commit (applicable felony) upon him or her, or (3) any attempt to commit (applicable felony) upon or in any dwelling, residence, or vehicle occupied by him or her.​

Give if applicable

A person is justified in using deadly force if he or she reasonably believes that such force is necessary to prevent: (1) imminent death or great bodily harm to [himself][herself][another] or (2) the imminent commission of (applicable forcible felony) against [himself][herself] or another.

However, the use of deadly force is not justifiable if you find: (1) the defendant was attempting to commit, committing, or escaping after the commission of (applicable forcible felony), or (2) the defendant initially provoked the use of force against himself or herself unless (a) the force asserted toward the defendant was so great that he or she reasonably believed that he or she was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on (assailant), (b) in good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that he or she wanted to withdraw and stop the use of deadly force, but (assailant) continued or resumed the use of force.

​Force in resisting a law enforcement officer

A person is not justified in using force to resist arrest by law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

However, if an office uses excessive force to make an arrest, then the person is justified in the use of reasonable force to defend [himself][herself][another] but only to the extent he or she reasonably believes such force is necessary.

Read in all cases

In deciding whether the defendant was justified in the use of deadly force, you must judge him or her by the circumstances by which he or she was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

No duty to retreat

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where he or she had a right to be, he or she had no duty to retreat and had the right to stand his or her ground and meet force with force, including deadly force, if he or 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.

Presumption of fear (dwelling, residence, or occupied vehicle)

If the defendant was in a [dwelling][residence][occupied vehicle] where he or she had a right to be, he or she is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself][herself][another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person's will from] that [dwelling][residence][occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

Exceptions to presumption of fear

The presumption of reasonable fear of imminent death or great bodily harm does not apply if: (a) the person against whom the defensive force is used has the right to be in [or is a lawful resident of the [dwelling][residence]] [the vehicle], such as an owner, lessee, or titleholder, and there is not an injunction from protection domestic violence or a written pre-trial supervision order of no contact against that person; or (b) the person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used; or (c) the person who used defensive force is engaged in an unlawful activity or is using the [dwelling][residence][occupied vehicle] to further an unlawful activity; or (d) the person against whom the defensive force is used is a law enforcement officer, who enters or attempts to enter a [dwelling][residence][vehicle] in the performance of [his][her] official duties and the officer identified himself or herself in accordance with any applicable law or the person using the force knew or reasonable should have known that the person entering or attempting to enter was a law enforcement officer.

A person who unlawfully and by force enters or attempts to enter another's [dwelling][residence][occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

• Definitions

As used with regard to self defense,

"Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

"Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

"Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

• Prior threats (give if applicable)

If you find that the defendant who because of threats or prior difficulties with the victim had reasonable grounds to believe that he or she was in danger of death or great bodily harm at the hands of the victim, then the defendant had the right to arm himself or herself. However, the defendant cannot justify the use of deadly force, if after arming himself or herself, he or she renewed his or her difficulty with the victim when he or she could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where he or she had a right to be, he or she had no duty to retreat.

• Reputation of victim (give if applicable)

If you find that the victim had a reputation of being a violent and dangerous person and that his or her reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable prudent person in dealing with an individual of that reputation.

• Physical abilities (read in all cases)

In considering the issue of self-defense, you may take into account the relative physical abilities and capabilities of the defendant and victim.

• Read in all cases

If in your consideration of the issue of self defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find him or her guilty if all the elements of the charge have been proved.

Applicable Jury Instruction: Use of Non-deadly Force

Florida standard jury instruction 3.6(g) provides as follows:

• In defense of person

The defendant would be justified in using non-deadly force against the victim if the following two facts were proved: (1) the defendant must have reasonably believed that such conduct was necessary to defend [himself][herself][another] against the victim's imminent use of unlawful force against the [defendant][another person]; (2) the use of unlawful force by the victim must have appeared to the defendant to be ready or take place.

• In defense of property

The defendant would be justified in using non-deadly force against the victim of the following three facts are provided: (1) the 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 or her immediate family or household, or in the possession of some person whose property he or she was under a legal duty to protect; (3) the defendant must have reasonably believed that his or her use of force was necessary to prevent or terminate the victim's wrongful behavior.

• No duty to retreat (dwelling, residence, or occupied vehicle)

If the defendant is in his or her [dwelling][residence][occupied vehicle], he or she is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself][herself][another] if the victim has [unlawfully and forcibly entered][has removed or attempted to remove another person against that person's will from] that [dwelling][residence][occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another's [dwelling][residence][occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

• No duty to retreat (location other than dwelling, residence or occupied vehicle)

If the defendant [was not engaged in an unlawful activity and] was attacked in any place where he or she had a right to be, he or she had no duty to retreat and had the right to stand his or her ground and meet force with force, including deadly force, if he or 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.

• Definitions

As used with regard to self defense,

"Dwelling" means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

"Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

"Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

• Give in all cases

A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

• Give only if the defendant is charged with an independent forcible felony

The use of non-deadly force is not justified if you find: (1) the defendant was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); (2) the defendant initially provoked the use of force against [himself][herself] unless: (a) the force asserted toward the defendant was so great that he or she reasonably believed that he or she 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 (assailant).

• Force in resisting a law enforcement officer

A person is not justified in using force to resist arrest by law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

However, if an office uses excessive force to make an arrest, then the person is justified in the use of reasonable force to defend [himself][herself][another] but only to the extent he or she reasonably believes such force is necessary.

• Read in all cases

In deciding whether the defendant was justified in the use of non-deadly force, you must judge him or her by the circumstances by which he or she was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. Based upon appearances, the defendant must have actually believed that the danger was real.

• Reputation of victim (give if applicable)

If you find that the victim had a reputation of being a violent and dangerous person and that his or her reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable prudent person in dealing with an individual of that reputation.

• Physical abilities (read in all cases)

In considering the issue of self-defense, you may take into account the relative physical abilities and capabilities of the defendant and victim.

• Read in all cases

If in your consideration of the issue of self defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force, then you should find him or her guilty if all the elements of the charge have been proved.

Applicable Jury Instruction: Justifiable Use of Force by Law Enforcement Officer

Florida standard jury instruction 3.6(h) provides as follows:

• In making an arrest of a felon

A law enforcement officer, or any person he or she has summoned or directed to assist him or her, need not retreat from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force that he or she reasonably believes necessary to defend himself, herself, or another from bodily harm while making the arrest. The force is also justifiable when necessarily used: (1) in retaking a felon who has escaped; or (2) in arresting a felon who is fleeing from justice.

• Force in making unlawful arrest or unlawful execution of a legal duty prohibited

Use of any force by a law enforcement officer or any person summoned or directed to assist the law enforcement officer is not justified if: (1) the [arrest][execution of a legal duty] is unlawful and (2) it is known by the officer or the person assisting him or her to be unlawful.

• To prevent escape from custody

A law enforcement officer or other person who has an arrested person in his or her custody is justified in the use of any force that he or she reasonably believes to be necessary to prevent the escape of the arrested person from custody.

• To prevent escape from a penal institution

A guard or other law enforcement officer is justified in the use of any force that he or she reasonably believes to be necessary to prevent an escape from a penal institution of a person the officer reasonably believes is lawfully detained.

• Give if applicable

"Deadly force" includes but is not limited to (1) firing a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and (2) firing a firearm at a vehicle in which the person to be arrested is riding.

A "firearm" means any weapon (including a starter gun" which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime.

Resources

The following is a list of outside sources and other website sections related to the justifiable use of force:

Links

1. ​HG. Org: St. Petersburg Battery Defense Attorney
2. HG. Org: St. Petersburg Assault Defense Attorney
3. HG. Org: St. Petersburg Domestic Violence Defense Attorney
4. HG. Org: Florida Sentencing Enhancements Pt. 4: 10-20-Life

Blog Posts

1. The Aggravated Assault Exceptions to Florida's 10-20-Life Statute
2. What is a Stand Your Ground Immunity Motion?
3. Pinellas County Jury Finds Kilfin Law Firm, P.C. Client Not Guilty of Aggravated Battery

Related Sections

1. Assault & Aggravated Assault
2. Battery & Aggravated Battery

The Bottom Line

Under the right set of circumstances, justifiable use of force can be a very effective defense against charges alleging the commission of a violent crime. Florida's statutory immunity provisions authorize the dismissal of the case, pre-trial, where the court makes certain factual finding related to the justifiable use of force. If the motion is not successful, the defense may still be raised at trial and, in many instances, successfully. If you have been charged with a violent crime in St. Petersburg, Clearwater, Tampa, or a surroundign area, feel free to contact me at any time to discuss the merits of a use of force defense in your case.