When Can an Individual Use Non-Deadly Force Against Another?
The previous article, Understanding Florida’s Stand Your Ground and Justifiable Use of Force Laws (Part I) focused on the legal premise of the individual’s right to use deadly force for self-defense. Because “Stand Your Ground,” “Justifiable Use of Deadly Force” and “Justifiable Use of Non-Deadly Force” laws are so important, and because understanding these laws may someday save your life or the life of another, or prevent a tragic or unwanted result, we would like to provide additional information on these topics, starting with the use of non-deadly force.
“Force, But Not Deadly Force”
Fl. Stat. 776.012(1) allows a person to use or threaten to use force, but not deadly force, if he or she reasonably believes it is necessary for self-defense or the defense of another. Further, in this situation the individual does not have a duty to retreat.
It is essential to understand that the statute permits using only the amount of force “to the extent” necessary to defend against another’s use of force.
- In a perfect world, an individual under attack would use just enough force to stop an attacker. However, in reality, when a person is engaged in self-defense or defense of others, especially a loved one, their primal urge – their urge for survival – kicks in harder than they ever could have imagined.
When a person is under attack, the victim’s natural tendency is often to use more force than necessary to stop the attack and attacker. This often results in severely injuring or killing the attacker. While law enforcement, the prosecution, and judge and/or jury may look upon the individual engaging in self-defense with a certain amount of understanding or even leniency, using too much force can and often does result in a charge such as aggravated assault, aggravated battery, or felony battery. If the defender kills the intruder, he or she may be charged with manslaughter, murder, or another violent offense.
Further, if a law enforcement officer intervenes and uses his or her lawful authority to stop the fight and is injured, the responsible party – whether the attacker or the defender, or both – may be charged with assault or battery upon a law enforcement officer. Obviously, these are very tricky and serious situations. An individual in such a position would want to make sure their legal rights are zealously protected.
Understanding “Stand Your Ground” and “Justifiable Use of Force” Laws Outside of the Home
We already know from the previous article that the use of deadly force is justified in a person’s home, assuming that the individual using deadly force complies with Sec. 776.012(2). Where else is a person potentially justified in using deadly force?
Sec. 776.012(2) broadly states that a person may use deadly force if they are “… in a place where he or she has a right to be.” This general statement leaves many questions unanswered:
- Is an individual justified in using deadly force, standing their ground and not retreating if they are threatened outside of their home?
- If so, where may an individual use deadly force outside their home?
- Are there any other applicable conditions or situations?
We look to Fl. Stat. Sec. 776.013 for additional information. Under this section, we learn that there are numerous conditions and locations in which the use of deadly force may be justified. To summarize, these include the following:
- If an individual unlawfully and forcefully enters a:
- Dwelling, or
- Residence, or
- Occupied vehicle,
- Or if a person was attempting to remove or did remove a person against their will, and
- Knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred,
- In these circumstances, deadly force would be justified.
Dwelling, Residence and Vehicle Defined
In Florida, dwelling, residence and vehicle have specific legal definitions.
A dwelling is any kind of a building or conveyance, whether temporary or permanent, mobile or immobile, as long as it has a roof and is designed for people to “lodge” in at night. Even a tent is legally considered to be a dwelling.
A residence is a dwelling in which a person resides temporarily, permanently, or visits as an invited guest.
A vehicle is any kind of a conveyance that is designed to transport people or property. Note that a vehicle does not have to be motorized. Thus, a travel trailer, truck trailer or camping trailer falls within the definition.
Immunity is Granted When Deadly Force is Justified
Under Section 776.032 , the individual using deadly force lawfully is granted immunity from both criminal prosecution and civil lawsuits.
However, immunity will not be granted in these circumstances:
- If deadly force is used against a law enforcement officer who was lawfully performing their duty,
- And who properly identified himself or herself,
- Immunity will not be granted if the person using or threatening to use deadly force knew or should have reasonably known that the individual was a law enforcement officer.
Other Instances When Defensive Deadly Force is Not Justified
- When used against a person who has a lawful right to be in the dwelling, residence or vehicle,
- Such as an owner, lessee or titleholder,
- When there is not a domestic violence protection order or no-contact order precluding the person from being there,
- Against a child or grandchild, or someone with lawful custody or guardianship,
- If the person is engaged in criminal activity or using the dwelling, residence or vehicle to further criminal activity.
In all of the above, the use of deadly force is not justified and can result in severe criminal charges.
Deadly Force Against Law Enforcement Officer is Not Justified
Deadly force is not justified when used against law enforcement officers engaged in official activity. However, the officer must identify himself or herself and the person attempting to use deadly force must know that it was an officer or should reasonably have known it was an officer.
A Person Attacked in Their Dwelling, Residence or Vehicle Has No Duty to Retreat
Section 776.013(3) is extremely important:
“(3) A person who is attacked in his or her dwelling, residence, or vehicle has no duty to retreat and has the right to stand his or her ground and use or threaten to use force, including deadly force, if he or she uses or threatens to use force in accordance with s. 776.012(1) or (2) or s. 776.031(1) or (2).”
Clearly, this is an interpretation and use of the Castle Doctrine, which states that a person has the ultimate right to defend himself, herself or others in their home. For all intents and purposes, a dwelling, residence and vehicle are the same as a home.
Cannot Use Deadly Force to Protect Property
It is important to understand that a person does not have the right to use deadly force to protect property unless they are in imminent danger. They are, however, justified in using or threatening to use less than deadly force to prevent or terminate another’s trespass or tortious or criminal conduct, or forcible felony.
(2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony — 776.031(2)
Attorney David W. Olson, West Palm Beach Use of Deadly Force Criminal Defense Attorney
For more than three decades, Attorney Olson has represented thousands of clients charged with serious felonies and misdemeanors, including those charged with excessive use of force and violations of Stand Your Ground laws. To schedule a complimentary consultation to discuss your case, contact Attorney Olson at 561-833-8866.