Is the self-defense force “deadly” or “non-deadly?”

In any self-defense case, the amount of force used in defending oneself or others is critical for the analysis. Whether a person used a reasonable level of force to defend against a threat is often what makes or breaks a self-defense case.

“Deadly force” is an amount of force that causes or is likely to cause death or great bodily harm.”

“Non-deadly force” is an amount of force that is not likely to cause great bodily harm.

In some cases, what level of force was used is question for either the judge and/or jury.

In most situations, a person can only use “deadly force” when that person is in fear of imminent, great bodily harm to oneself or others. By contrast, to use “non-deadly” force, a person must only be in fear of an “unlawful force” upon oneself or others.

What is the difference between “Stand Your Ground” and “Self-Defense?”

For many reasons, these two related concepts are used interchangeably in common conversation. However, in the legal context, the concepts are similar, but not the same.

Florida’s Stand Your Ground statute can be found at 776.032. In sum, the statute grants immunity from criminal and civil prosecution if a judge finds that the defendant was acting in self-defense. This is not the same as being found Not Guilty due to self-defense.

Under “Stand Your Ground,” a defendant has a burden of first showing that there is a “prima facie” case of self-defense. Assuming the defendant proves sufficient facts that he or she was acting self-defense, then the burden shifts to the prosecutor to prove by “clear and convincing evidence” that the defendant was not acting in self-defense. The trial judge, not a jury, decides whether the defendant is immune from prosecution.

In a traditional self-defense jury trial, the prosecutor must prove beyond a reasonable doubt to a jury that the defendant was not acting in self-defense. This is a much higher standard of evidence, and therefore harder to overcome for a prosecutor than is the “clear and convincing” evidence standard it must overcome during a Stand Your Ground hearing.

One of the benefits of running a Stand Your Ground Motion is that, in theory, the case could be dismissed without the defendant having to risk trial. However, there are some potential drawbacks.

By doing the Stand Your Ground hearing, the defense must necessarily unveil its strategy for showing self-defense. If the defense does not win the Stand Your Ground Motion, the result is that the defense gives away its strategy, typically well in advance of trial, such that the prosecution can better prepare for the defense.

Whether to advance “Stand Your Ground,” as opposed to saving the self-defense for trial, is a decision that must be made with full knowledge of the facts and circumstances of the case.

When can I use non-deadly force to defend myself?

Under Florida Statute 776.012(1), a person may use non-deadly force when, “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.”

In Florida, there is no duty to retreat if a person is being threatened by unlawful force.

Non-deadly Force is force that is not likely to cause death or great bodily harm.

When can I use deadly force to defend myself?

As compared to the use of non-deadly force, more circumstances must be in play before a person can legally use “deadly force” to defend oneself or others.

Under Florida Statute 776.012(2), a person may use deadly force if 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.”

In Florida, there is no duty to retreat from imminent great bodily harm before using deadly force. However, a person cannot use deadly force if he or she is already engaged in criminal activity and/or is in a place where the person using deadly force does not have a right to be.

Deadly force is a force which causes, or is likely to cause, death or great bodily harm.

My home is my castle. Can’t I protect it at all costs?

Longstanding legal concepts establish that a person has the greatest motivation and justification to protect themselves and others when he or she is in their own home. As opposed to threats occurring in public, a person is in the strongest possible self-defense position when he or she is in their own home.

Florida’s “Castle Doctrine” is codified in Florida Statute 776.013. Under this statute, a person is presumed to be in fear of imminent great bodily harm when another person is making unlawful, forcible entry into his or her home.

There are some exceptions to this, however. For example, the presumption of imminent great bodily harm does not exist when the homeowner is engaged in criminal activity, the person making entry has a lawful right to enter the home, or is a police officer.

Like all self-defense cases, including ones under the Castle Doctrine, a person has the best possible self-defense case when he or she uses the force as a last resort and uses only the force necessary to ward off the threat.

What can I do to defend my property?

Under Florida Statute 776.031, a person can use force to defend property if a person without a right to the property is either Trespassing or otherwise criminally interfering with the property.

Beware, however, one cannot use deadly force to defend property unless the force is necessary to prevent another from committing a “forcible felony.”

The list of “forcible felonies” can be found under Florida Statute 776.08 and includes, but is not limited to: Homicide, Burglary, Home-Invasion Robbery, Carjacking, Aggravated Battery, or any felony involving the use of force or physical violence.

Why wasn’t it self-defense?

There are some circumstances that will either complicate or prevent a person from successfully claiming self-defense. Some of those barriers include, but are not limited to:

• Person claiming self-defense was the initial aggressor.

• Amount of self-defense force was unreasonable compared to threat.

• Person using force perceived a threat that would not have been perceived by a reasonable person.

• Person claiming self-defense was engaged in criminal activity.

• Person claiming self-defense was not in a place where he or she had a right to be.

• Force used against a person who also had a right to be there.

• Force used against a p protected status person, such as a police officer, paramedic, or teacher

• Note: protected status does not apply if the protected status person was either not working in that capacity or, if on-duty, doing something outside the scope of his or her duty.