Florida’s “Stand Your Ground” law has garnered significant attention and controversy since its inception. This legal doctrine has broad implications for individuals involved in self-defense situations, influencing how criminal defense cases are prosecuted and defended.

As the Florida Supreme Court explained in Dennis v. State (Fla. 2010), 51 So. 3d 456, 462 “[s]ection 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force.”

We will explore Florida’s Stand Your Ground statutes, including self-defense, defense of others, and the defense of real and personal property. By examining the relevant Florida Statutes—776.032, 776.031, 776.012, and 776.013—we will delve into the legal frameworks that shape how these cases are handled in Florida’s criminal justice system.

Historical Background of Stand Your Ground Laws

Before delving into the details of Florida statutes, a background of Stand Your Ground laws must be given. The legal doctrine of self-defense traditionally required a legal duty of retreat by an individual, when possible, before using deadly force in defense of one’s person. Central to this element was the “duty to retreat,” associated with common law, and the common objective was related to minimizing violence or loss of life as much as possible. However, with time, some states, including Florida, faded away from that approach and took up the doctrine of Stand Your Ground in various forms, where a person may use such force without the duty to retreat that comes from having a reasonable belief of death, great bodily harm, or an act of forcible felony. Many states, including Florida, also permit an individual to use reasonable force in response to non-deadly threats, or even in protection of personal and real property. Florida’s Stand Your Ground law, enacted in 2005 (it has since been modified via statute and case law precedent), was one of the first and most prominent in the United States, setting the stage for similar laws in other states.

Florida Statute 776.012: Use of Force in Defense of Person

Florida Statute 776.012 is one of the cornerstones of Florida’s self-defense laws. It outlines the conditions under which an individual may use force, including deadly force, to defend themselves or another person. See § F.S. 776.012 (“A person is justified in using or threatening to use force […] against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself […] or another against the other’s imminent use of unlawful force.”)

The statute is divided into two subsections:

1. Non-deadly Force: Under Florida Statute 776.012(1), a person is justified in using or threatening to use non-deadly force against another when they reasonably believe such force is necessary to defend themselves or another against the other’s imminent use of unlawful force. This provision allows for the use of force as long as it is proportionate to the threat faced.
2. Deadly Force: Florida Statute 776.012(2) permits the use of deadly force when an individual reasonably believes it is necessary to prevent imminent death or great bodily harm to themselves or another or to prevent the imminent commission of a forcible felony (“Forcible felony” means 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; and any other felony which involves the use or threat of physical force or violence against any individual. See § 776.08). Notably, this statute explicitly states that a person does not have a duty to retreat before using deadly force, even if they could safely do so. This is the essence of the Stand Your Ground principle.

The implications of this statute in criminal defense cases are profound. In situations where an individual is charged with a violent crime, the defense may argue that their actions were justified under Statute 776.012. The defense would need to demonstrate that the defendant had a reasonable belief that the force used or threatened was necessary to prevent imminent harm, thus potentially securing an acquittal or dismissal of charges.

Florida Statute 776.013: Home Protection and the Castle Doctrine

Florida Statute 776.013, often referred to as the “Castle Doctrine,” ratifies via statute the common law principles of self-defense to one’s home, vehicle, and other dwellings. This statute is crucial in cases involving defense against intruders and home invasions. It provides a strong presumption of reasonable fear of imminent harm when an individual uses force, including deadly force, against someone unlawfully entering their home or occupied vehicle.

The statute is divided into several key sections:

1. Presumption of Fear: Florida Statute 776.013(2) establishes a presumption that a person who uses deadly force against an intruder in their home or vehicle had a reasonable fear of imminent death or great bodily harm. This presumption applies if the intruder was unlawfully and forcibly entering, or had already unlawfully and forcibly entered, the residence or vehicle. The law does not require the person to retreat or try to escape before using force. See § F.S. 776.013(2) (“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 […] if: […] that person had removed […] another against that person’s will from” the dwelling,  residence, or occupied vehicle, and “the person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible […] act was occurring or had occurred.”
2. Exceptions to the Presumption: While the presumption of reasonable fear is powerful, it is not absolute. Florida Statute 776.013(2) outlines exceptions where this presumption does not apply, such as when the person against whom force was used had the legal right to be in the dwelling or vehicle (e.g., an invited guest) or if the person using force was engaged in unlawful activity themselves.
3. Immunity from Prosecution: One of the most significant aspects of Florida’s Stand Your Ground laws is the immunity from prosecution granted under Florida Statute 776.032. If an individual acts in accordance with the statute(s), they are immune from both criminal prosecution and civil liability.

In criminal defense cases, Statute 776.013 is often invoked when a defendant is charged with using force against an intruder. The defense would argue that the defendant was within their rights to protect their home or vehicle under the Castle Doctrine, and the presumption of reasonable fear should lead to a dismissal of charges.

Florida Statute 776.031: Use of Force in Defense of Property

Florida Statute 776.031 extends the right to use force beyond personal self-defense to include the protection of property. This statute is crucial in cases where an individual uses force or threatens force to prevent harm or to stop a crime involving property.

1. Defense of Property: Florida Statute 776.031(1) permits the use of force, including deadly force under limited circumstances (not solely to protect property – only if there is concern for physical safety as well), to prevent the interference with, or to recover, personal property. See § 776.031(1), Fla. Stat. (“A person is justified in using or threatening to use 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.” F.S. § 776.031 “clearly allows the use of non-deadly force within the curtilage of a home.” See Garrido v. State, 97 So. 3d 291 (Fla. 4th DCA 2012).

1. Deadly Force: Florida Statute 776.031(2) addresses the use of deadly force to prevent the unlawful interference with real or personal property. Deadly force may be used if the individual reasonably believes it is necessary to prevent the imminent commission of a forcible felony, such as in cases of a burglary or robbery where physical safety is also at issue.

In criminal defense cases, these provisions are pivotal when a defendant has acted to protect property. The defense would need to show that the use of force was reasonable and necessary under the circumstances, in accordance with Statute 776.031. Successfully doing so could lead to dismissal of criminal charges.

Florida Statute 776.032: Immunity from Criminal Prosecution and Civil Action

One of the most impactful aspects of Florida’s Stand Your Ground laws is the immunity provided under Florida Statute 776.032. This statute grants individuals who use force in self-defense, defense of others, or defense of property immunity from both criminal prosecution and civil lawsuits.

1. Immunity from Criminal Prosecution: Florida Statute 776.032(1) states that a person who uses force as permitted by Statutes 776.012, 776.013, or 776.031 is immune from criminal prosecution unless the person against whom force was used is a law enforcement officer performing their duties and the officer identified themselves as such. This immunity means that individuals who act in self-defense or defense of others or property cannot be arrested, charged, or prosecuted unless there is probable cause to believe that their use of force was unlawful. “[T]he agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.” See § 776.032(2).
2. Immunity from Civil Action: In addition to criminal immunity, Florida Statute 776.032(2) provides immunity from civil lawsuits. If a person is sued for using force under the circumstances described in the Stand Your Ground statutes, they can file a motion to dismiss the case based on this immunity. If the court finds that the use of force was justified, the defendant is immune from civil liability, and the court may also award attorney’s fees, court costs, and compensation for loss of income to the defendant.

The immunity provisions of Statute 776.032 have far-reaching consequences in criminal defense cases. Defendants can file a pre-trial motion to dismiss the charges based on this statute, effectively ending the prosecution if the court agrees that the use of force was justified. This can be a powerful tool in cases where the facts clearly support a self-defense claim. A defendant can also invoke the Stand Your Ground defenses at trial, at which point, the government has an even higher burden (proving the threat or use of force was unjustified “Beyond a Reasonable Doubt”).

Legal Application of Stand Your Ground Laws in Criminal Defense Cases

Florida’s Stand Your Ground laws significantly shape how criminal defense cases involving self-defense, defense of others, and defense of property are handled. These statutes provide a robust framework for justifying the use of force, and they offer powerful protections against prosecution and civil liability.

1. Case Law and Judicial Interpretation: Over the years, Florida courts have interpreted and applied these statutes in various ways, leading to a body of case law that further defines the boundaries of the Stand Your Ground laws. For example, the Florida Supreme Court has ruled on issues such as the burden of proof in Stand Your Ground hearings, determining that the defendant must present a prima facie case of self-defense, after which the burden shifts to the prosecution to disprove the claim.
2. High-Profile Cases: Several high-profile cases have brought Florida’s Stand Your Ground laws into the national spotlight. The most famous of these is the case of George Zimmerman, who was acquitted of murder charges in the shooting death of Trayvon Martin. Zimmerman’s defense team successfully argued that he acted in self-defense under Florida’s Stand Your Ground law, leading to widespread debate and criticism of the statute.
3. Challenges and Controversies: Florida’s Stand Your Ground laws have faced significant criticism and legal challenges. Opponents argue that the laws encourage unnecessary violence, disproportionately impact minority communities, and make it more difficult to prosecute cases involving the use of deadly force. Despite these challenges, the laws remain in place, and any changes would require legislative action.

When a defendant makes a prima facie case and that case meets the elements for justifiable use of force, this will trigger the State’s burden to overcome the immunity claim by clear and convincing evidence. See Florida Statute § 776.032(4); see also Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018). In Jefferson, the Court held that that Defendant did not have to affirmatively prove an immunity claim under the statute for justifiable use of force. A Stand Your Ground immunity hearing merely requires the Defendant to allege a facially sufficient prima facie claim in the motion to dismiss and to present arguments. This is helpful for defendants and puts the onus on the government to disprove a claimed lawful use of force.

Other Commonly asked Questions

What is clear and convincing evidence (the burden of proof applied in Stand Your Ground hearings)?

Clear and convincing evidence is defined as, “Evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials.” 1228 Prima facie, Black’s Law Dictionary (8th ed. 2004). See Derossett v. State, 311 So. 3d 880 (Fla. 5th DCA 2019) (“Clear and convincing evidence is an exacting standard that requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.”

What legal standard is used in deciding on Stand Your Ground issues?

An objective, reasonable person standard is applied to determine whether the immunity provided by these provisions applies.  See Paese v. State, 381 So. 3d 4 (Fla. 4th DCA 2024); see also e.g., Montanez  v.  State, 24 So. 3d  799, 803  (Fla. 2d DCA 2010). This standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant. See Toledo v. State, 452 So. 2d 661, 663 (Fla. 3d DCA 1984); See also Cruz v. State, 189 So. 3d 822 (Fla. 4th DCA 2015) (“When the state’s evidence is legally insufficient to rebut a prima facie case establishing self-defense, the trial court must enter a judgment of acquittal”).

How can the prosecutor prove the use of force is unjustified if the “victim” is dead and there are no other witnesses?

To be frank – it is likely very difficult, if not impossible (absent video footage of the incident or some other substantial piece of evidence) for the Government to meet its burden, and this objective fact has been explicitly acknowledged by Florida appellate courts. See e.g., Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018) (“We are mindful that there will be situations where the accused is the only available witness to the events leading to an act that is claimed to be justifiable use of force. This may result in great difficultly for the State to overcome the accused’s prima facie claim by clear and convincing evidence.”)

Can Floridians open-carry their guns at home or in their place of business?

The short answer, yes! – “Florida provides a statutory right to openly carry a weapon or firearm while on one’s home property or place of business […] For a firearm to be useful for self-defense, it must be readily available and loaded, neither of which can be effectively and safely done if the firearm cannot be taken out of concealment or storage and openly displayed […]”. See Burns v. State, 361 So. 3d 372 (Fla. 4th DCA 2023).

Is it considered deadly force to point a gun without shooting?

Generally, no it is not – merely brandishing a firearm is now universally considered non-deadly force in Florida courts. See e.g., Jackson v. State, 179 So. 3d 443 (Fla. 5th DCA 2015) (“the mere display of a gun, or even pointing a gun at another’s head or heart without firing it, is not deadly force as a matter of law) (citing Cunningham v. State, 159 So. 3d 275 (Fla. 4th DCA 2015); citing Carter v. State, 115 So. 3d 1031, 1037 n. 3 (Fla. 4th DCA 2013); Rivero v. State, 871 So. 2d 953, 954 (Fla. 3d DCA 2004) (“The use-of force statute looks to the amount of force which is actually used. Pointing a firearm (without firing it) amounts to the use of nondeadly force.”); Stewart v. State, 672 So.2d 865, 868 (Fla. 2d DCA 1996))); see also Copeland v. State, 277 So. 3d 1137 (Fla. 5th DCA 2019); see also Garramone v. State, 636 So. 2d 869 (Fla. 4th DCA 1994); see also Howard v. State, 698 So. 2d 923 (Fla. 4th DCA 1997)

Can a convicted Felon claim self-defense with a gun under Florida’s Stand Your Ground laws?

Yes, convicted Felons are still entitled to defend themselves and are entitled to the same protections under Florida’s Stand Your Ground statutes. However, the issue becomes a little bit more complex because Felons are also prohibited from possessing a firearm and risk criminal charges for doing so. Still, if the use of force with a gun is deemed justified and reasonable under the circumstances pursuant to Florida’s Stand Your Ground laws, a convicted Felon may still be free and clear of all wrongdoing if they also meet the requirements for what has been described by the Third District in Marrero v. State, 516 So. 2d 1052 (Fla. 3d DCA 1987), as the “necessity” or “justification” defense to a violation of F.S. 790.23:

1. the defendant must be in present, imminent, and impending peril of death or serious bodily injury, or reasonably believe himself or others to be in such danger;
2. the defendant must not have intentionally or recklessly placed himself in a situation in which it was probable that
   he would be forced to choose the criminal conduct (possessing the gun as a convicted felon);
3. the defendant must not have any reasonable, legal alternative to possessing the firearm;
4. the firearm must be made available to the defendant without preconceived design (the defendant must not have been aware that a gun would be readily available prior to possession or the confrontation); and
5. the defendant must give up possession of the firearm as soon as necessity or apparent necessity ends (once the threat is gone or the assailant is incapacitated, the defendant must immediately and as safely as possible, get rid of the weapon – not intentionally dispose of it, but release possession).

See also Hill v. State, 143 So. 3d 981, 985 (Fla. 4th DCA 2014) (holding that a felon in possession of a firearm could still rely upon Stand Your Ground under section 776.012, because that section had “no language precluding the justifiable use of deadly force where the person claiming self-defense is engaged in an unlawful activity” as compared to section 776.013(3));

See also Andujar-Ruiz v. State, 205 So.3d 803 (Fla. 2d DCA 2016) (holding that although section 776.013(3) of Florida’s Stand Your Ground law requires that a defendant not be engaged in unlawful activity, “a defendant’s felonious possession of a firearm does not preclude such a defendant from raising a defense” under statute, providing that person is justified in the use of deadly force and does not have a duty to retreat if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another)

Do you have to warn your attacker before using non-deadly force or deadly force?

Absolutely not. No warning is necessary before standing your ground and reasonably taking necessary action, in both non-deadly and deadly force situations. See Mobley v. State, 132 So.3d 1160 (Fla. 3d DCA 2014) (explaining “[t]he statute contains no warning requirement” in finding the defendant was not required to warn attackers that he had a gun in order to have immunity from second-degree murder prosecution under the Stand Your Ground Law)

Concluding Thoughts

Florida’s Stand Your Ground statutes play a crucial role in the state’s criminal justice system, particularly in cases involving self-defense, defense of others, and defense of property. Florida Statutes 776.012, 776.013, 776.031, and 776.032 provide a comprehensive legal framework that protects individuals who use force under certain circumstances, offering immunity from criminal prosecution and civil liability.

For those involved in criminal defense cases in Florida, understanding these statutes is essential. The laws provide powerful tools for defending against charges related to the use of force, but they also come with significant responsibilities and limitations. As the legal landscape continues to evolve, so too will the interpretation and application of these statutes, making it crucial for legal professionals and the public alike to stay informed and engaged with the ongoing debates surrounding Florida’s Stand Your Ground laws.

Stand Your Ground applied in Appellate Practice: Positive Outcome for Client

• Paese v. State – granting client a Stand Your Ground self-defense immunity writ of prohibition

Florida’s Leading Stand Your Ground Self-Defense Attorneys

Florida’s leading self-defense attorneys at Kenneth Padowitz, P.A. strategically and aggressively defend those accused of State and Federal crimes. If you have been charged or believe you may be charged with a crime, contact Broward Stand Your Ground lawyers Kenneth Padowitz and Joshua Padowitz today. If you’re facing criminal charges in Florida involving a use of force requiring a defense rooted in Florida’s Stand Your Ground laws, you deserve an attorney who knows the intricacies of this crucial legal protection. At Kenneth Padowitz, P.A., we specialize in defending clients who acted in self-defense, defense of others, or defense of property. We understand the importance of these laws and how to effectively leverage them to protect your rights. Whether you’re dealing with a complex case or simply seeking peace of mind, our expertise in Florida’s Stand Your Ground laws ensures you have a strong advocate by your side, committed to achieving the best possible outcome for your case.