compromising your right to defend yourself

8/12/2019 Compromising Your Right to Defend Yourself

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Compromising Your Right to

Defend YourselfAn In-depth analysis and the unintended consequences of SB 130 that could affect

your rights.

Analysis brought to you by

The Liberty First Network, 1334 Tampa Rd #6, Palm Harbor, FL, 34683

http://www.libertyfirstfl.org
http://www.google.com/url?q=http%3A%2F%2Fwww.libertyfirstfl.org&sa=D&sntz=1&usg=AFQjCNFVz6kPYDU6vyT6S426VR_NN5myhQ


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Table of Contents

Introduction

Background on Stand Your Ground and the Use of Justifiable Force

Point 1: Neighborhood Watch Programs

Point 2: Civil Immunity from Liability

Point 3: Criminal Investigation

Point 4: Stand Your Ground Hearing and Burden of Proof

Point 5: Aggressors in Disputes

Point 6: Unlawful Acts and Justifiable Use of Force

Liberty First Network Summary

Marion Hammers Analysis of SB 130

Justifiable Use of Force BEFORE the Passing of Stand Your Ground

Justifiable Use of Force AFTER the Passing of Stand Your Ground


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Introduction

Marion Hammer, the longtime lobbyist of the NRA, has come out with another statement in

support for SB 130 while making a veiled attack on the Liberty First Network. We have always

analyzed bills in a very accurate and methodical manner. We look for every detail and any

unintended consequences any legislation may cause. The Liberty First Network values ourreputation and the accuracy of our action alerts. We will continue to tell you our honest and

thorough take on legislation and other situations arising in Tallahassee.

Also, we would like for you to understand how we feel about compromise. Politicians and the

political elite have always said that compromise is the art of politics. We dont know about you,

but we are fed up with compromise, because it seems like we are always on the losing end.

Havent you had enough of politicians telling us that we have to accept compromise when it

comes to our core principles? Another thing we have learned in our experience in Tallahassee, is

once you compromise, the politicians will then expect you to always compromise and you will be

asked to accept compromise every year until they snuff out any semblance of liberty. Our

opponents will know we will cave in to pressure. A wise person once said that you cant make a

bad bill better with a couple of amendments, otherwise you cant put lipstick on a pig.

SB 130 is a compromise bill on Stand Your Ground. Everyone from legislators, lobbyist and the

media have said it is a compromise bill. Make NOmistake the anti-gun rights crowd, lead by

state Senator Chris Smith, Democrat from Miami, are on a mission to repeal Stand Your

Ground. In fact, the changes in SB 130 came from Senator Smiths bill SB 122. Their strategy is

to shred Stand Your Ground one compromise bill at a time. If we let SB 130 pass, as U.S.

Congresswoman Corrine Brown, Democrat from Jacksonville said, it is a start.

After the Liberty First Network analyzed the recent changes to SB 130, we shared our concerns

that this bill was a compromise bill and it did make changes to Stand Your Ground, that could

have unintended consequences. Nobody refutes that this is a compromise bill and that it makes

changes to Stand Your Ground. The only question is whether the changes could have

unintended consequences?

The founders knew that it was ultimately up to the citizens to be the best check against

government abuse. That means we should never accept any bill at face value or because

somebody said it was OK. We are sorry if we offended Marion Hammer, but we will never tell

you to just take our word for it, we have too much respect for you to be that condescending.

We do feel the need to explain in detail our review of Marion Hammers analysis of the

changes in SB 130, in which she states SB 130 by Sen. David Simmons & Sen. ChrisSmith is a bill about which much false information is being disseminated. Regardless of

what is being said, SB 130 as amended does not materially change or diminish the Stand

Your Ground law. It does clarify some provisions but doesn't change them. Marion

Hammer goes on to make 6 very short points to support her claim. We will take each

point one at a time and respond.


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Background on the current Stand Your Ground Law

In reality there is no such thing as the Stand Your Ground law. When people refer to the Stand

Your Ground law, they mean that SB 436, titled Protection of Persons and Property. SB 436

passed the Florida Legislature and was signed into law by then Governor Jeb Bush in 2005. SB

436 did not create a new law, it just added new language to Chapter 776 Justifiable Force.Before SB 436, the idea that a person had a right to force, including deadly force, if the person

had a reasonable fear of imminent death or great bodily harm already existed. The term Stand

Your Ground is mentioned once in SB 436, in regards to no duty to retreat, but it quickly

became the nickname of SB 436. The term Castle Doctrine also became a nickname for SB

436.

The Stand Your Ground law (SB 436) passed in 2005 by the Florida Legislature created a statute

that basically did two things:

1.Added a new section (776.013) that had language to embrace the theory of

the Castle Doctrine. The Castle Doctrine was a common law doctrine statingthat an individual has no duty to retreatwhen in his or her home, or castle,

and may use reasonable force, including deadly force, to defend his or her

property, person, or another. This new section also expanded the Castle

Doctrine of no duty to retreat outside of one's castle, where they had a right

to be and allowing an individual to use force in self-defense when there is

reasonable belief of a threat.

2. Added a new section (776.032) dealing with Immunity. The Castle

Doctrine and the No Duty to Retreat sections added statutory definitions of

Justifiable Force in Chapter 776. these changes increased the ability for adefendant to be granted a Motion for Declaration of Immunity and Dismissal in

a Pretrial Hearing.

Justifiable force was allowed if it was determined:

1. The defendant was not otherwise engaged in unlawful activity

2. The defendant was at a place where he had a right to be

3. The defendant was attacked and

4. The defendant reasonably believed that he was about to suffer death or great bodily

injury.

However, if it is determined that the defendant provoked the incident, or was the initialaggressor, or was engaged in an unlawful activity, the Defendant lost his or her right to claim

justifiable use of force and the ability to receive immunity from prosecution.

Every homicide case must be investigated and the Stand Your Ground Law created a provision

that after an investigation and law enforcement determined that the suspect did have right to

justifiable force, they could decide not to pursue an arrest. However, it had to be thoroughly

investigated to reach that determination that it was extremely evident that the individual


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reasonably believed that the use of deadly force was necessary to prevent "imminent death or

great bodily harm.

Since 2005, there have been 130 cases that have used Stand Your Ground and 91 of those

cases involved a fatality. In the same time period there were 8,378 homicides throughout the1 2

state. This means only 1% of all fatalities, at the hand of another, have used the provisions inStand Your Ground.

Out of those cases that used Stand Your Ground, 50 people were never subjected to a lengthy

and expensive trial, 9 others were granted immunity by a judge and 9 cases were dismissed by

the prosecution.3

In 10 cases the person pleaded guilty to a lesser crime (took a plea deal), 28 cases made it to a

full trial and 19 of those cases the defendant was found guilty. Again, this law affects only 1% of4

all cases involving homicide and out of those only 52% received any immunity.

The anti-gun crowd would like to you to believe that a suspect could claim justifiable force and

just go free without any investigation or much of one. This is simply not true, all homicides musthave a thorough investigation and Stand Your Ground does not restrict or impede that procedure.

The truth is they want all suspects to be arrested and charged and have to go before a judge and

jury in a long drawn out trial. It is expensive not only for the suspect but also the taxpayers and is

unnecessary if it is clear and evident that the suspect had a reasonable fear of imminent harm to

himself or others.

Short of a full repeal, the lefts strategy is to make changes over time by:

Revoking immunity from Criminal prosecution or at least

Redefine criminal prosecution

Change the definition of Unlawful Activity

Mandate longer Investigation time

1Tally of 'stand your ground' cases rises as legislators rethink law, Tampa Bay Times, March 22, 2012

2Florida Statistical Analysis Center: FDLE (1991-2012). Crime in Florida, Florida uniform crime report [Computer program]. Tallahassee, FL.

3Tally of 'stand your ground' cases rises as legislators rethink law, Tampa Bay Times, March 22, 2012

4 Tally of 'stand your ground' cases rises as legislators rethink law, Tampa Bay Times, March 22, 2012


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Marion Hammer Point 1:

"The bill establishes guidelines and regulations for Neighborhood

Watch programs."

LFN Response

While this is true, our contention is that no person or group should have to get permission from

their government to protect themselves or others. A group of neighbors who have decided to look

out for each other should be encouraged not regulated. It is your inalienable right to protect

yourself and to protect others that come into harms way. There are also unintended

consequences that are not being disclosed.

There has never been guidelines or standards set by law enforcement on neighborhood watches

but there has always been a voluntary program that neighborhood watch groups could invite

local law enforcement out to train the participants. Any neighborhood or group of neighbors couldestablish a neighborhood watch and did not have to notify law enforcement. This new provision

would now force neighborhood watches to be under the authority of the local sheriff. The sheriff's

office also has to define when you are allowed to use force and how to conduct yourself while

watching your neighborhood. This entire section is beingADDEDto the law that never previously

existed:

(2) The county sheriff or municipal police department shall issue reasonable

guidelines for the operation of such programs. The guidelines must include,

but are not limited to, prohibiting a neighborhood crime watch patrol

participant, while on patrol, from confrontingor attempting to apprehend a

person suspected of improper or unlawful activity, subject, however, to those

circumstances in which a reasonable person would be permitted, authorized,

or expected to assist another person.

Unintended Consequences

If you and your neighbors all decide to watch each other's homes as good neighbors and do not

register or get trained with the sheriff's office you will not be recognized within the law. You spot

something suspicious at your neighbor's home and go out to "pursue" a suspect to find out what

is going on and what he is doing around your neighbor's house. He starts to harm you in some

way and you use deadly force. You have now pursued someone that turned into an incident

without retreating, without calling for help and without being a trained neighborhood watch

participant. You can now be defined as the aggressor and would not be immune from legal

action under Stand Your Ground any longer. This is the unintended consequences of allowing

government to regulate "good neighbor" actions.


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"The bill makes it clear that if you injure or kill an attacker, you cannot be

sued by the attacker, or his family or personal representative."

LFN response

The immunity from civil liability was already in the Stand Your Ground law, written in 2005. The

new language of the bill restricts this civil immunity only to the attacker or the attackers family.

Now, if you use deadly force in the defense of yourself or others but in the process of that force

someone else is harmed, the other person harmed does have legal standing to take action

against you. This is a weakening of the immunity provisions in that existed in the Stand Your

Ground law. Lets look at the change Ms. Hammer is referring too:

In the case of civil prosecution, the Stand Your Ground law currently reads:

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, unless the person against whom force was used is a law enforcement

officer,

What it would be changed to is:

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 by the person, personal representative, or heirs of the

person, against whom force was used for the use of such force, unless

the person against whom force was used is a law enforcement officer.

Unintended Consequence

This change is to limit the civil immunity to ONLY those that force was intended to be used on.

This would mean that if someone aside from the attacker was harmed unintentionally they

could now take legal action against you.


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"The bill makes it clear that a person who has used self-defense cannot

be arrested and taken into custody prior to an investigation and makes it

clear that law enforcement has the authority and duty to fully investigate

the use of force."

LFN Response

Marion Hammer is referring to the addition of a sub-section to Immunity Section 776.032 created

by SB130.(2)This subsection does not restrict a law enforcement agencys authority and

duty to fully and completely investigate the use of force upon which an

immunity may be claimed or any event surrounding such use of force.

Marion Hammers point here is stating what already existed in the current Stand Your GroundLaw. Law enforcement has and will continue not to arrest a suspect until they have probable

cause which has always required a full and complete investigation. Prosecutors never want to

arrest and charge a suspect until they have what they consider a mountain of evidence.

Immunity cannot be claimed until an arrest and only a Judge in a Pretrial motion can grant

Immunity.

It has always existed that Law Enforcement could not arrest a person without probable cause.

The probable cause in this type of case must be that the person did not have justifiable use of

force. Probable Cause is contained in the 4thAmendment of the U.S. Constitution. The

investigation begins when law enforcement arrives at the scene. At any point during the

investigation, law enforcement cannot arrest somebody without probable cause. ProbableCause can be determined at any point during the investigation and law enforcement can detain

or take a person into custody for questioning at any point during the investigation without

arresting the person- however once in custody, 5th Amendment rights apply for any

interrogation. Law Enforcement typically will wait to arrest a suspect until such time as they can

investigate and determine what the criminal charge will be and if there is probable cause for an

arrest. In order to arrest a person, law enforcement has to notify the suspect at the time of the

arrest what the specific charge will be. The charges could range from Murder One, Murder two

and so on. Due to speedy trial concerns, prosecutors never encourage arrest until an

investigation is completed, that is just how the system works regardless of Stand Your Ground.

Unintended Consequences

There is no definition to the term "full and complete" in the law. So, who determines when an

investigation is deemed "full and complete" in a situation involving a charge of murder? There is

no statute of limitations on murder one, meaning the completeness of an investigation may never

actually occur. This new change comes from Senator Chris Smith, Democrat from Miami. This

was his language in his bill SB122 that eventually was incorporated in to SB130. This change


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The bill corrects an abuse of the defendant's rights created by judges

and prosecutors -- without any legislative authority. Nothing in the

Stand Your Ground (SYG) law provides for a SYG hearing where the

person who acted in self-defense is presumed guilty until he/she provesto a judge that it was self-defense. Yet that is what some judges and

prosecutors have done. The bill REVERSES that. Under this language

the defendant is entitled to a Pretrial hearing if he/she chooses, but the

burden of proof is ON THE PROSECUTOR to prove it was not lawful

self-defense.

LFN Response

While this is true, it is misleading. Stand Your Ground hearings are very common in caseswhere law enforcement did not apply Stand Your Ground at the conclusion of the investigation.

The Stand Your Ground law gives law enforcement and prosecutors authority to decide a

person was clearly and blatantly was in defense of their life, their property or the life of another.

Actually, when you hear the term Stand Your Ground hearing, what they are referring to is the

standard motion for a Preliminary Hearing or Pretrial Hearing. In this Pretrial hearing the

defendant can file a Motion for Declaration of Immunity and Dismissal that always existed. After

the Stand Your Ground Law, defendants could use the Stand Your ground Law as a basis for a

Motion for Declaration of Immunity and Dismissal.

In Gray v. State, 13 So. 2d 114 (Fla. 5th DCA 2009), the Fifth District Court of Appeal adopted the

procedures, and concluded that the right to immunity from criminal prosecution afforded by

Section 776.032 (commonly known as the stand your ground law) is to be determined by the

trial court after an evidentiary proceeding in which the criminal defendant has the burden of proof

by a preponderance of the evidence.

SB130 adds language that when the defense has a filed a Motion for Declaration of Immunity and

Dismissal based on Stand Your Ground, the Prosecution must show a preponderance of

evidence to have the Judge deny the defendants motion to dismiss.

The new change in SB130 goes on to say:

Section 4. Section 776.041 For purposes of the motion, the judge shall decide

all factual disputes relating to the defendants use of force, but any factual

findings are not established for the purposes of any subsequent trial. The

defendants testimony is not admissible in a subsequent hearing or trial except

for the purposes of impeachment. The denial of the defendants motion to


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dismiss or any factual findings at the hearing do not preclude the defendant

from raising any defense or presenting any evidence at trial.

LFN Response

Actually this could be seen as a good change, it is always expected that in our court system the

burden of proof is always on the state. While this could be a good change, it may not make that

much of a difference considering the other changes that are concerning in SB 130.

When the defense files a Motion for Declaration of Immunity and Dismissal in a preliminary

hearing, the Judge will decide if there is probable cause to believe that the defendant committed

the crime? If the Judge should find that there is no probable cause, then typically the prosecution

will cease. If a judge determines that there is sufficient evidence to believe that the defendant

committed the crime, it is said that the defendant is "bound over". This new change really does

not change the way a preliminary hearing is decided.


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The bill clarifies that the person who is the initial aggressor [attacker] is

not entitled to the law's protections.

LFN Response:

The Stand Your Ground law already had this provision. This was not a change made in SB 130.

The Stand Your Ground Law currently says:

776.041 Use of force by aggressor.The justification described in the

preceding sections of this chapter is not available to a person who:

(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

terminate the use of force, but the assailant continues or resumes the use of

force.

Unnecessary Change

This section is unnecessary and does nothing to change the meaning of the law. There is just

added wording to an already existing provision in the law. The change to this section in SB 130

are slight and only in the first section.

776.041 Use of force by aggressor.The justifications described in the

preceding sections of this chapter, including, but not limited to, the immunity

provided for in s. 776.032, are not available to a person who:

The word "justification" was changed to "justifications" and the language of "including, but not

limited to, the immunity provided for in s. 776.032 are" has been added. This does not change

the meaning of the law. It has always stated that a person could not be involved in an unlawful

act or be the aggressor and claim Stand Your Ground immunity.


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"The bill contains language that makes it clear that it is not the

Legislature's intent that the law be used for unlawful purposes."

LFN Response

Marion Hammer is referring to a new section of Stand Your Ground Law created by SB130:

Line 128-132 776.09 Justifiable use of force legislative intent.The use of

force authorized by this chapter is not intended to encourage vigilantism or

acts of revenge, authorize the initiation of a confrontation as a pretext to

respond with deadly force, or negate a duty to retreat for persons engaged in

unlawful mutual combat.

Unnecessary Change

This section is unnecessary, it just states what already existed, that a person engaged in an

unlawful activity cannot claim justifiable force. This should not be confusing, the definition of

unlawful activity is any activity that is against the law!


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LFN Summary

The Stand Your Ground law has been a strong protection of your right to defend your life and

property. In our opinion, the changes located in SB 130 will weaken those protections and lead

the way for a further erosion of those rights.

Good laws are never changed in large amounts at one time. It is done methodically and in small

increments until our liberties are gone.

We see this over and over again in Tallahassee and this is one law that we cannot afford to have

"chipped away" for political posturing and that is an INTENDED CONSEQUENCE.

In Liberty,

John Hallman and the Team at Liberty First Network


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Marion Hammers email analysis of SB 130:


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Justifiable Use of Force before the passing of Stand Your Ground - 2005

CHAPTER 776

JUSTIFIABLE USE OF FORCE

776.012Use of force in defense of person.776.031Use of force in defense of others.776.041Use of force by aggressor.776.05Law enforcement officers use of force in making an arrest.776.051Use of force in resisting arrest or making an arrest or in the execution of a legal duty prohibition.776.06Deadly force.776.07Use of force to prevent escape.776.08Forcible felony.776.085Defense to civil action for damages party convicted of forcible or attempted forcible felony.

____________________________________________________________________________________

776.012Use of force in defense of person.A person is justified in using force, except deadly force, against another whenand to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another

against the others imminent use of unlawful force. However, a person is justified in the use of deadly force if:

(1)He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harmto himself or herself or another or to prevent the imminent commission of a forcible felony.

History.s. 13, ch. 74-383 s. 1188, ch. 97-102 s. 2, ch. 2005-27.

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_____________________________________________________________________________________

776.031Use of force in defense of others.A person is justified in the use of force, except deadly force, against anotherwhen and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the others

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.


_____________________________________________________________________________________

_____________________________________________________________________________________

776.041Use of force by aggressor.The justification described in the preceding sections of this chapter is notavailable 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 orgreat 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


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Justifiable Use of ForceAFTER passing of Stand Your Ground - 2005

CHAPTER 776

JUSTIFIABLE USE OF FORCE

776.012Use of force in defense of person.(Amended by SYG)776.013Home protection use of deadly force presumption of fear of death or great bodily harm.776.031Use of force in defense of others. (Amended by SYG)776.032Immunity from criminal prosecution and civil action for justifiable use of force.776.041Use of force by aggressor.776.05Law enforcement officers use of force in making an arrest.776.051Use of force in resisting arrest or making an arrest or in the execution of a legal duty prohibition.776.06Deadly force.776.07Use of force to prevent escape.776.08Forcible felony.776.085Defense to civil action for damages party convicted of forcible or attempted forcible felony.

____________________________________________________________________________________

776.012Use of force in defense of person.A person is justified in using force, except deadly force, againstanother when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself

or another against the others imminent use of unlawful force. However, a person is justified in the use of deadly force and

does not have a duty to retreatif:

(1)He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself orherself or another or to prevent the imminent commission of a forcible felony or

(2)Under those circumstances permitted pursuant to s. 776.013.History.s. 13, ch. 74-383 s. 1188, ch. 97-102 s. 2, ch. 2005-27.

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776.013Home protection use of deadly force presumption of fear of death or greatbodily harm.(1)A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm tohimself 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 forcefullyentering, 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 persons 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 entry orunlawful and forcible act was occurring or had occurred.

(2)The presumption set forth in subsection (1) does not apply if:


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(a)The person against whom the defensive force is used has the right to be in or is a lawful resident of thedwelling, 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

(b)The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custodyor 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 the 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 shehas a right to be has no duty to retreat and has the right to stand his or her ground and meet force withforce, 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 persons dwelling, residence, oroccupied 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 buildingor conveyance is temporary or permanent, 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 asan invited guest.

(c)Vehicle means a conveyance of any kind, whether or not motorized, which is designed to transportpeople or property.

History.s. 1, ch. 2005-27.

_____________________________________________________________________________________

776.031Use of force in defense of others .A person is justified in the use of force, except deadly force, againstanother when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the

others 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 a duty to retreat if the person is in a place where he or she has a right to be.


_____________________________________________________________________________________

776.032Immunity 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 forceand 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.


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(2)A law enforcement agency may use standard procedures for investigating the use of force as described insubsection (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 attorneys fees, court costs, compensation for loss of income, and allexpenses 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 as provided in subsection (1).

History.s. 4, ch. 2005-27.

_____________________________________________________________________________________

776.041Use of force by aggressor.The justification described in the preceding sections of this chapter is notavailable 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 harmand 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 orshe desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

History.s. 13, ch. 74-383 s. 1190, ch. 97-102.

_____________________________________________________________________________________

776.05Law enforcement officers use of force in making an arrest .A law enforcement officer, or anyperson 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 or another from bodily harm while makingthe arrest

(2)When necessarily committed in retaking felons who have escaped or(3)When necessarily committed in arresting felons fleeing from justice. However, this subsection shall not constitute a defensein any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary toprevent 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 orothers or

(b)The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction ofserious physical harm to another person.

History.s. 13, ch. 74-383 s. 1, ch. 75-64 s. 1, ch. 87-147 s. 54, ch. 88-381 s. 1191, ch. 97-102.

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776.051Use of force in resisting arrest or making an arrest or in the execution of a legal dutyprohibition.(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 enforcementofficer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she isknown, or reasonably appears, to be a law enforcement officer.

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



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776.06Deadly 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 bodilyharm and

(b)The firing of a firearm at a vehicle in which the person to be arrested is riding.

(2)(a)The term deadly force does not include the discharge of a firearm by a law enforcement officer or correctional officerduring and within the scope of his or her official duties which is loaded with a 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 persons body.

(b)A law enforcement officer or a correctional officer is not liable in any civil or criminal action arising out of the use of anyless-lethal munition in good faith during and within the scope of his or her official duties.

History.s. 13, ch. 74-383 s. 1, ch. 99-272.

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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 anyforce 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 orshe 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.


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776.08Forcible felony.Forcible felony means treason murder manslaughter sexual battery carjackinghome-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.

History.s. 13, ch. 74-383 s. 4, ch. 75-298 s. 289, ch. 79-400 s. 5, ch. 93-212 s. 10, ch. 95-195.

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776.085Defense to civil action for damages party convicted of forcible or attempted forciblefelony.(1)It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that suchaction arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The

defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible

felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the

evidence.

(2)For the purposes of this section, the term forcible felony shall have the same meaning as in s. 776.08.(3)Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of thecivil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a

conviction in the criminal action would not form a valid defense under this section.

(4)In any civil action where a party prevails based on the defense created by this section:(a)The losing party, if convicted of and incarcerated for the crime or attempted crime, shall, as determined by the court, loseany privileges provided by the correctional facility, including, but not limited to:

1.Canteen purchases2.Telephone access


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3.Outdoor exercise4.Use of the library and5.Visitation.(b)The court shall award a reasonable attorneys fee to be paid to the prevailing party in equal amounts by the losing party andthe losing partys attorney however, the losing partys attorney is not personally responsible if he or she has acted in good faith,

based on the representations of his or her client. If the losing party is incarcerated for the crime or attempted crime and has

insufficient assets to cover payment of the costs of the action and the award of fees pursuant to this paragraph, the party shall,

as determined by the court, be required to pay by deduction from any payments the prisoner receives while incarcerated.

(c)If the losing party is incarcerated for the crime or attempted crime, the court shall issue a written order containing its findingsand ruling pursuant to paragraphs (a) and (b) and shall direct that a certified copy be forwarded to the appropriate correctional

institution or facility.

History.s. 1, ch. 87-187 s. 72, ch. 96-388.

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