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Practical Considerations of the Law: The Right to Remain Silent

May 12, 2017

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Practical Matters of the Law: Stand Your Ground

 

Author's Note - This is the second in a short series on the fundamentals of self-defense. Self-defense is a personal choice and a person considering arming themselves for that purpose should give all aspects of it full consideration. These posts are merely intended as a legal survey. They are not intended as a comprehensive discussion of self-defense legally, morally, or tactically.


So 'stand your ground' is kind of a trick title. Contrary to what our news media may believe there is no stand your ground law in the state of Florida.  What stand your ground actually refers to is the fact that in 2005, the Florida legislature, acting on the desires of voters to equalize the playing field between violent criminals and law abiding citizens, repealed any statutory duty to retreat in the face of criminal violence.

 

Most of our criminal laws and theories have developed from old country British common law. Going back hundreds of years courts have held to a greater or lesser degree depending on the jurisdiction, that a person confronted with violence had a duty to retreat before defending if they had the opportunity to do so. This had the undesirable effect of placing a law abiding citizen who successfully defended him or herself from a dangerous attack of first having to prove that they were indeed in serious danger and then that they had no opportunity to avoid defending with force. In litigation, all things being equal, the one with the higher burden of proof and persuasion is at a very real disadvantage.

 
For many years law abiding citizens found themselves on the wrong side of the law for defending themselves or others. Even when successful at criminal trial they were often still on the hook for the civil damages of the violent criminal attacker. Having had enough, the legislature finally acted.
In 2005 Chapter 776 of the Florida statutes was rewritten to provide very real protections for those choosing to defend themselves against hostile criminals. First it codifies the right for a person to defend themselves against criminal violence using 'force on force.' There is no longer a duty to retreat.  It also implemented an important presumption under the Castle Doctrine that a person forcing entry into an occupied dwelling is 'presumed' to pose a threat of serious harm or death to those inside and may be dealt with accordingly.

 
A new procedural regime was also implemented. Historically someone claiming self-defense was asserting an affirmative defense. Normally the judge would issue an appropriate jury instruction on the law at trial and give the jury the option of finding self-defense or guilt.  The new 2005 procedure required a pre-trial 'immunity hearing.' Should the 'defendant' prevail in that hearing in establishing by a preponderance of the evidence that they acted in self-defense, they were henceforth immune from both prosecution and civil liability.  Good stuff, right?


Not completely. While many of the changes were well accepted, such as the repeal of the duty to retreat, and the Castle Doctrine on steroids presumption, many courts resisted the new procedural requirements of holding immunity hearings. They could resist the change by several means.  They could find the request for a hearing was untimely - asked for after the preliminary hearing when most defendants have only recently secured an attorney - and then they would simply roll the self-defense assertion into the trial in the traditional manner. This approach often survived appeal - it's what everyone was used to. Though harder to prove, the results suggest that another approach the courts widely used was to go ahead and hold the hearing, then rule against virtually every defendant raising the issue, knowing that it would be re-litigated at trial. These realities gutted the intent of the legislature to protect law abiding citizens from being tried for defending themselves in the first place.


In response to this perceived judicial foot-dragging, the legislature took another swing at the problem. Last month the Governor signed into law a revised Section 776.032 Fla. Stats. (2017). The new law requires an immunity hearing when requested, and hugely, shifted the burden of proof from the defendant having to prove with a preponderance of the evidence that they had acted in self-defense, to the state having to prove with clear and convincing evidence that the defendant did not act in self-defense.  In litigation mechanics this is a truly seismic shift.

 
Okay so what does this mean to you the law abiding citizen?  

 

The law is viewing self-defense more and more favorably than ever before and the courts are being compelled to accommodate the self-defense assertion in ways they never have. But now I must editorialize with some words of caution.


When considering violent self-defense please think along two continuum's.  The first is the threat against you or your protected from extreme threat to a marginal threat. The second is your response to the threat from a full on magazine emptying free fire zone to a verbal warning, or even a cautious retreat.

 
If you use violence to defend yourself you are going to have to answer first to yourself. I'll leave that math to you. But judges and juries are not going to be impressed with disproportional responses to modest threats. Proportionality is still a living concept in self-defense. A couple years ago in Tampa a former police chief shot a man dead in a movie theater because after the retired cop challenged him about texting during the previews the man allegedly stood up, cussed, and threw some popcorn at him. The police chief's self-defense hearing recently failed. He's going to trial on murder-two. The concept of force on force does not allow for completely disproportionate responses to minor insults.


Having the right to use force on force in response to a threat of violence does not mean it's always wise. Often it is not. Despite what television shows might lead you to believe, the highest risk of homicide demographic in America isn't pretty blond joggers or the frail. It is 17-24 year old males. Why? Because too many will stand and fight over the slightest affront.  They bump shoulders in the beer aisle at Tom Thumb and five minutes later someone is dying in the parking lot. Do you have a right to defend yourself against an aggressor? Yes. Are you required to turn and walk away? No. Should you? Usually.


As you consider your personal self-defense policy please consider how what you believe you would do in given circumstances would look to others.  I have listened to too many people talking about self-defense in terms that would not play well in court. The ideal self-defense defendant is one who faced certain danger, had little choice, and used proportional, disciplined force. The worst is one who is hanging the rest of their life on some technical legal argument in the face of messy, ambivalent facts.


Finally, keep your personal self-defense plans and ideas close to the chest.  Most are good about this, but we all know the braggadocio friend who talks big game on this issue. I can assure you that having ten facebook posts describing how you would shoot someone then drag them inside your house is not something your defense attorney wants to have to explain to a skeptical jury. Be circumspect. We are talking life and death here. Having been cold or even eager at the prospect of shooting someone is not a great starting point in a self-defense case.


Michael P. Gilbert is a military veteran, and a second career attorney serving criminal defendants and accident victims throughout the Florida Panhandle.  His office is in Crestview, FL.
 

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