Self-defense stand your ground law under the microscope

Posted on January 03, 2011 3:00 AM EST

The defense of justifiable use of force has been on the books in the State of Florida for many years. The law was created to allow individuals to defend themselves in certain circumstances. Miami criminal lawyers have used the statute to defend clients charged with offenses including aggravated battery, manslaughter and in some instances, even murder. One of the original laws, referred to as the "Castle Doctrine", allows for individuals located in a residence, dwelling or occupied vehicle where they had lawful right to be, to use force if they had a reasonable fear of imminent death or great bodily harm. In other words, the law provided that a person had no duty to retreat if found in those circumstances.

In 2005, the legislature found that the stand your ground or no duty to retreat law applied outside of dwellings, residences and occupied vehicles. The new law provides that a person can defend himself or herself if that person was not engaged in criminal activity and was attacked in a place where he or she had a right to be and that there was no longer a duty to retreat. Force could be used if a person believed it was necessary to prevent death or serious injury. Since the passing of the new legislature many defendants have availed themselves of the new and improved version of the "stand your ground law."

Recently, a Daytona Beach man avoided prosecution for the charge of aggravated battery. The man facing up to fifteen years in prison was declared immune from prosecution by a state court circuit judge. The man was charged with striking another man in the face with a 2 by 4 in the course of defending himself and his girlfriend. In 2009, Miami-Dade County prosecutors dropped a murder charge against a defendant involved in a shooting with a long-time rival. Recent cases of drug dealers shooting others in self-defense have not been filed due to the new law. Prosecutors are pushing the legislature to amend the law because they feel that individuals involved in drug sales or dealing in controlled substances should not be permitted to avoid criminal prosecution. Criminal defense lawyers want the law to stay as is because it has been successful in defending many criminal prosecutions.

The appellate courts throughout the state have or will address the issue. However, the courts merely interpret the laws and any significant changes to the "stand your ground" law will have to come through the legislature. Defendants seeking the defense under the new law must appear at a hearing with their defense attorney and try to convince the judge that he or she was acting within the self-defense law. After taking testimony, a judge will have the ultimate decision to either grant or deny immunity from prosecution.

"Stand Your Ground" Cases on the Rise, The Daytona News-Journal Online.com, January 3, 2011.