Self Defense - Justifiable Use of Deadly Force


SHORSTEIN, LASNETSKI, & GIHON
explains the
Justifiable Use of Deadly Force
(Self Defense)
defense.
Justifiable use of deadly force, commonly referred to as self defense, is one of the more often used affirmative defenses.  People often find themselves charged with violent offenses when they truly believed they were acting in defense of themselves, others, or their property.  Law enforcement rarely gives self defense due consideration during their investigation and so it is often up to the client and the defense attorney to convince a prosecutor, a judge, or a jury that the act was reasonable self defense. If you believe that you acted in self defense, give us a call so we can discuss your options. 

What is Justifiable Use of Deadly Force?

Justifiable use of deadly force is defined in Florida Statute Section 776.012(2):
  • A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.  

What does "Stand Your Ground" mean?

"Stand your ground" means that you no longer have a duty to run away before using deadly force if you are in a place you have a right to be and if you aren't engaged in criminal activity.  
A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in criminal activity and is in a  place where he or she has a right to be. 
If you are standing on a public sidewalk and you see someone from 100 yards away walking towards you in a threatening manner with a knife , you do not have a duty to retreat and leave the area.  You can stand your ground and use deadly force to prevent the person from killing you or causing you great bodily harm.  But if you get in a fist fight with someone and they pull out a knife and you pull out a gun and shoot the person before they can stab you, the jury may find that you were engaged in criminal activity and therefore the use of deadly force was not justified. 

Can I shoot someone who breaks into my house?

The law tends to protect the sanctity of a person's home.  However, you need to understand that use of force is not cut and dry.  The law does not allow you to execute someone because they broke into your house.  However, there are certain protections a home owner has when someone forces there way inside the house.  Initially, a police officer will decide whether your use of force was justified, then a prosecutor will decide, then a judge will decide, and finally a jury will decide.  All four of those decision makers should presume, without you having to establish, that you had a reasonable fear of imminent death or peril if someone forces their way into your home. 

  Florida Statute Section 776.013 deals with justifiable use of force in a person's home or vehicle.
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 or threatening to use defensive force that is intended to likely to cause death or great bodily harm to another if:
  • the person against whom the defensive force was used  or threatened was in the process of unlawfully forcefully entering, or had unlawfully and forcibly entered, or had removed or attempted to remove another from, a:
    • dwelling
    • residence
    • occupied vehicle, and
  • the person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. 
However, this presumption does not apply if:
  • the person against whom the defensive force is used or threatened 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 that person, or
  • 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 threatened, or
  • the person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity, or
  • the person against whom the defensive force is used or threatened is a law enforcement officer 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 or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. 

What is "Deadly Force?"

"Deadly Force" is force likely to cause death or great bodily harm. 

Can I use deadly force to protect my property?

The short answer is no.  Florida Statute Section 776.031 provides for when and what kind of force a person can use to protect property.  You cannot use deadly force to protect property.  However, if you use justifiable use of non-deadly force to protect your property, but the person unlawfully attempting to take or destroy your property then causes you to reasonably believe that you must use deadly force to prevent the imminent commission of a forcibly felony, you would have the justifiable use of deadly force defense relating to the prevention of a forcible felony, rather than relating to protecting property.  So, for example, if someone walked up to your house and started walking away with your bicycle and you went to grab your bicycle back and the person pulled out a knife in a threatening manner; you would have the justifiable use of deadly force defense if you shot the man to prevent the commission of the robbery/aggravated assault, which are both forcible felonies.

What is a "Forcible Felony?"

A "forcible felony" includes the following offenses:
  • 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
  • any other felony which involves the use or threat of physical force or violence against any individual

Who decides if I acted in self defense?

There are three separate times when your actions will be reviewed to determine whether you used justifiable use of deadly force and therefore should not be prosecuted. 
1)   Law Enforcement - During investigation - Immunity
Florida Statute Section 776.032 provides that any person who uses justifiable use of force is immune from prosecution.   Therefore, law enforcement should make an initial determination whether you were justified in the use of force.  If they decide you were justified under the law, you are immune from prosecution and you should not be arrested.
2)   Judge - Before Trial - Immunity - Motion to Dismiss
If law enforcement disagrees with you and arrests you anyway, your attorney can file a Motion to Dismiss based on immunity.  You would have a hearing in front of the judge, who would hear from witnesses and consider other evidence and will make an independent decision on whether you are immune from prosecution based on justifiable use of force.  If the judge determined that you had immunity based on justifiable use of deadly force, he or she would dismiss the charges against you. 
3)   Jury - Trial - Defense
If both law enforcement and the judge determine that you do not have immunity from prosecution, you still have the defense of justifiable use of deadly force, which would be considered by the jury during your trial.  If the jury had a reasonable doubt about whether you were justified in your use of deadly force, they would find you not guilty. 

What if I defend myself against a police officer who is trying to unlawfully arrest me?

There are special laws relating to use of force against a police officer.  There is no immunity if you use force against a police officer, however, you still would have the defense at trial that your use of force was justifiable. 

Florida Statute Section 776.051 provides the law relating to use of force in resisting an arrest. 
  • A person is not justified in the use or threatened 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. 

If an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend himself or herself or another, but only to the extent that he or she reasonable believes such force is necessary. 


What if I thought at the time I had to defend myself, but I was wrong? For example, if I shot someone who I thought had a knife, but he didn't?

The jury would judge you by the circumstances by which you were surrounded at the time the force was used.  The danger facing you does not have to have been actual, but the appearance of the danger had to 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.  You must  have actually believed the danger was real, as well. 

So, usually the jurors will ask themselves, "what would I have done in that situation?"  They have to believe that a reasonable and prudent person would have believed the threat was real and that you actually believed the threat was real.

What if the person I used deadly force on has a violent reputation?

If there is evidence that you knew about the violent reputation before you committed the act of deadly force, you would be able to present that evidence to the jury to establish that your fear was reasonable based on the person's violent reputation. 

What if I'm a lot smaller than the person that was threatening me?

The jury can take into consideration the difference in size of the two people. So, if you are a 6'5" 250 pound man and you stab and 5'8" 110 pound woman who was unarmed, the jury can use the size difference to determine that your act of stabbing was not justified; if it was the smaller woman who stabbed the larger man, the jury could determine that the act was reasonable depending on the threat, because she is not likely to be able to overpower the man without the use of a deadly weapon. 

If you or a loved one is charged with a criminal offense and you think you have a
Justifiable Use of Deadly Force
defense,

Call Shorstein, Lasnetski & Gihon Now!

904-642-3332 (Jacksonville)
 
or

407-228-2019
(Orlando). 

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