Self Defense - Justifiable Use of Non-Deadly Force


SHORSTEIN, LASNETSKI, & GIHON
explains the
Justifiable Use of Non-Deadly Force
(Self Defense)
defense.
Justifiable use of non-deadly force, commonly referred to as self defense, is one of the more often used defenses.  People often find themselves charged with 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 Non-Deadly Force?

Justifiable use of non-deadly force is defined in Florida Statute Section 776.012(1):
  • A person is justified in using or threatening to use 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.

What does "Stand Your Ground" mean?

"Stand your ground" means that you no longer have a duty to run away before using 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 force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. 
If you are standing on a public sidewalk and you see someone from 100 yards away walking towards you in a threatening manner, you do not have a duty to retreat and leave the area.  You can stand your ground and use force to prevent the person from using force against you. 

Can I use force to protect my property?

The short answer is yes.  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, but you can use reasonable force. 
A person is justified in using or threatening to use 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. 
A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

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 non-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 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 hit someone who I thought was going to hit me, I was wrong?

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 force on has a violent reputation?

If there is evidence that you knew about the violent reputation before you committed the act of 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 hit a  5'8" 110 pound woman who was unarmed, the jury can use the size difference to determine that your act of hitting her was not justified; if it was the smaller woman who hit, or bit, or used other non-deadly force against the larger man, the jury could determine that the act was reasonable depending on the threat and the amount of force used. 

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

Call Shorstein, Lasnetski & Gihon Now!

904-642-3332 (Jacksonville)
 
or

407-228-2019
(Orlando). 

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