By Rachel May Zysk and Eddie Suarez

October 6, 2016

Florida’s Stand Your Ground Law “substantially amended the affirmative defense of justifiable use of force by abrogating the common law duty to retreat before resorting to deadly force and by enacting section 776.032, which grants immunity from criminal prosecution and civil action to those who use force justifiably in self-defense.”  Dooley v. State, __ So. 3d __, 2016 WL 1602968 at *1 n.1 (Fla. 2d DCA Apr. 22, 2016) (per curiam).  “Section 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.”  Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010); Rosario v. State, 165 So. 3d 852 (Fla. 1st DCA 2015) (“Florida’s Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense.”); § 776.032(1), Fla. Stat. (2014) (“A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution.”).

Section 776.012 (use or threatened use of force in defense of person) provides:

  • A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that 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. 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.
  • A person is justified in using or threatening to use deadly force 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
  • 776.012, Fla. Stat. (2014). See also § 776.013, Fla. Stat. (2014) (regarding home protection); § 776.031, Fla. Stat. (2014) (regarding defense of property); McWhorter v. State, 971 So. 2d 154, 156 (4th DCA 2007) (Stand Your Ground Law “altered the law so that now there is ‘no duty to retreat’ under a broad array of circumstances.”) (citing Smiley v. State, 966 So. 2d 330, 335 (Fla. 2007) (“the broad context of this legislation (i.e. ‘not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be’) establishes that there is no duty to retreat before using deadly force in numerous other situations”)).

A rule 3.190(b) motion to dismiss is the appropriate mechanism for raising a pretrial claim of immunity under section 776.032.  Dennis, 51 So. 3d at 462-463 (resolving conflict amongst district courts of appeal regarding pretrial procedural requirements); see also, generally, Ray v. State, 176 So. 3d 1010, 1011-1012 (Fla. 5th DCA 2015) (trial counsel ineffective for failing to file a motion to dismiss pursuant to Stand Your Ground).  A defendant who asserts Stand Your Ground immunity through a motion to dismiss is entitled to an evidentiary hearing.  Rosario, 165 So. 3d at 854 (remanding following trial court denial of motion to dismiss without holding evidentiary hearing); Prof’l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524, 525 (Fla. 3d DCA 2014) (evidentiary hearing is required in both criminal and civil proceedings); Satyanand v. State, 147 So. 3d 662, 663 (Fla. 5th DCA 2014) (“the Florida Supreme Court expressly held [in Dennis] that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should conduct a pretrial evidentiary hearing”); Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012) (“When a defendant claims immunity from prosecution under the Stand Your Ground Law, a trial court is to conduct an evidentiary hearing”); Wonder v. State, 69 So.3d 371 (Fla. 4th DCA 2011) (defendant entitled to evidentiary hearing); see also Bretherick v. State, 170 So.3d 766, 768 (Fla. 2015) (“discussing burden of proof “at the pretrial evidentiary hearing.” (emphasis added)).[1]

At the evidentiary hearing, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to Stand Your Ground immunity.  Bretherick, 170 So.3d at 768 (“We now make explicit what was implicit in Dennis—the defendant bears the burden of proof by a preponderance of the evidence at the pretrial evidentiary hearing.”).  “[T]he trial court must decide the matter by confronting and weighing only factual disputes [not] deny a motion simply because factual disputes exist.”  Peterson v. State, 983 So. 2d 27, 29 (1st DCA 2008) (holding that disputed issues of material fact did not warrant denial of motion to dismiss), approved, Dennis, 51 So. 3d at 458 (“the trial court should decide the factual question of the applicability of the statutory immunity… [we] approve the reasoning of Peterson on that issue.”); Rosario, 165 So. 3d at 854 (the purpose of the evidentiary hearing “is to consider factual disputes.”) (quoting Mederos, 102 So. 3d at 11).

If the defendant demonstrates by the preponderance of the evidence that he used deadly force in a manner statutorily authorized by section 776.032, he should be declared immune from prosecution.  See State v. Gallo, 76 So. 3d 407, 409 n.2 (2d DCA 2011).  In Gallo, “[a]t around 2:30 in the morning, [the defendant and victim] confronted each other outside of a busy night club.”  Id. at 408.  Their argument became physical and at least two other men became involved.  Id.  Gun shots were fired and the victim was hit multiple times, resulting in his death.  Id.  The trial court “held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings.”  Id. at 409.  The Second DCA affirmed, noting:

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders.  In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010.  The trial judge performed that duty without legal error.Id.

“An objective standard is applied to determine whether the immunity provided by [Stand Your Ground] attaches.”  Mobley v. State, 132 So. 3d 1160, 1164 (Fla. Dist. Ct. App.), reh’g denied (Mar. 13, 2014), review denied, 147 So. 3d 527 (Fla. 2014) (citing Montanez v. State, 24 So. 3d 799, 803 (2d DCA 2010)).  “That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she 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.”  Viera v. State, 163 So. 3d 602, 604–05 (Fla. 3d DCA 2015) (emphasis added).  However, a defendant’s honest, but mistaken, perception of an imminent threat[2] may not be sufficient to prove that immunity should attach.  See Bretherick v. State, 135 So.3d 337, 341 (Fla. 5th DCA 2013) (per curiam), approved, 170 So.3d 766 (Fla. 2015) (“The issue of who bears the burden of proof may well be significant where the case is an extremely close one”); see also Rudin v. State, 182 So. 3d 724, 726 (Fla. 1st DCA 2015) (defendant failed to prove he was justified in stabbing his stick-wielding father; the two-inch wide, four-foot long stick was not a deadly weapon and caused only minor injuries to the defendant, father testified he did not intend to seriously hurt the defendant, and defendant did not testify).

Accordingly, immunity does not attach to a defendant’s actions once a reasonable person would believe the imminence of the danger had passed.  Bretherick, 135 So.3d at 340.  In Bretherick, a vacationing family was driving to Downtown Disney when a truck nearly sideswiped them while passing in the right lane.  Id. at 338-338.  The truck driver stared at the family in a threatening manner, cut in front of the family’s vehicle, slammed on the brakes, and came to a full stop although traffic was moving.  Id. at 339.  The truck driver got out of his truck and approached the family’s vehicle.  Id.  The father in the family held up a holstered handgun and the truck driver got back into his truck.  Id.  The son in the family (and the defendant in the case) then approached the driver side of the truck while pointing a handgun at the driver.  Id.  The defendant told the truck driver to move his vehicle or he would be shot.  Id.  Unfortunately, the truck driver thought that the defendant told him “if he moved, he would be shot.”  Id.  The defendant, while maintaining his target, told his family the truck driver had a gun.  Id.  The defendant’s mother and sister ran for cover to a ditch.  Id.  At one point, the truck rolled approximately a foot back toward the family’s vehicle.  Id.  The stand-off continued until police arrived, and the defendant was charged with aggravated assault.  Id.  The Fifth DCA held that the trial court “properly determined that there was no longer an imminent threat [when the defendant approached with the gun] and that the Defendant’s subjective fear at that point was objectively unreasonable.”  Id. at 340 (emphasis added).  Thus, “[i] It was not reasonable for the Defendant to believe that it was necessary for him to approach [the] truck with a gun drawn in order to defend himself or his family.”  Id. at 341.

If, however, “the totality of the circumstances leading up to the attack” demonstrate that the “appearance of danger” was real and could only be avoided by force, Florida law makes clear that a person has no duty to retreat.  Mobley, 132 So. 3d at 1166.  In Mobley, the defendant was charged with two counts of second-degree murder after he shot and killed two men outside of a restaurant.  Id. at 1162.  The defendant, his friend, and the two victims were involved in a “petty disagreement” inside of the restaurant.  Id. at 1162-1163.  After the altercation appeared to have ended, one of the victim continued to stare at the defendant and his friend.  Id. at 1163.  The defendant and his friend left the restaurant to smoke a cigarette, and the defendant retrieved his gun from his vehicle.  Id.  The first victim left the restaurant and “delivered a vicious punch” to the defendant’s friend’s face.  Id.  The other victim then rushed to the scene, seemingly to aid in a “renewed attack.”  Id.  The defendant shot and killed both victims.  Id. at 1164.

The trial court determined that the defendant’s actions were not reasonable.  Id. at 1165.  It reasoned that the defendant had not seen the victims with weapons, and the defendant “should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun.”  Id.  The Third DCA disagreed, finding that while “[i]t may have been more prudent for [defendant and his friend] to skitter to their cars and hightail it out of there when they had the chance,” they were not required to do so.  Id. at 1166.  Additionally, the court found that the events that occurred during the first altercation in the restaurant “provide[d] context for [the defendant’s] actions when the attack outside the restaurant occurred.”  Id.  The court held that it was objectively reasonable for the defendant to believe that force was necessary to prevent great bodily harm, and ordered that the charges against him be dismissed.  Id.


Florida’s Stand Your Ground Law affords three stages of review regarding the applicability of the statute; the first is during the investigative stage.   A practitioner retained early in an investigation is well-advised to advocate the applicability of the immunity to investigators and prosecutors even before charges filed.  If charges filed are filed, practitioners should file a motion to dismiss and insist on an evidentiary hearing; this approach also affords the Defendant the ability to make a clearer record[3] for appellate review.  Lastly, if the first efforts fail, the applicability of the statute and the reasonable of the Defendant’s actions should be zealously advocated at trial.

[1] A defendant may seek review of a trial court’s denial of a motion to dismiss, or a trial court’s denial of an evidentiary hearing on a motion to dismiss, through a petition for a writ of prohibition.  See Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) (Florida Supreme Court “has consistently held” that a writ of prohibition is “an appropriate vehicle to review orders denying motions to dismiss in criminal prosecutions based on immunity.”); Rosario, 165 So. 3d 852 (petition for writ of prohibition appropriate vehicle for challenging trial court’s denial of evidentiary hearing on motion to dismiss).

[2] § 776.012(1), Fla. Stat. (2014) (defendant “reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force”); 776.012(2), Fla. Stat. (2014) (“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).

[3] The record on a Motion to Dismiss will be much more focused on the relevant issues in contrast to the record available after trial which will inevitably present a host of other issues and evidence addressing a much wider array of evidentiary matters.

About the Authors

Eddie Suarez and Rachel May Zysk are attorneys with the Suarez Law Firm representing individuals in litigation or investigations, in both state and federal court, involving a broad range of criminal allegations.

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