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“Self-Defense- When can you use force against another?”


By: Mark Eiglarsh

The Scenario
It's four o'clock in the morning. You and your family are fast asleep, when suddenly you hear the sound of a window shattering. Although you convince yourself it's just a dream, you continue to hear noises coming from the other room. You call 9–11 to tell the police a burglar is in your home and they say they are on the way. However, it will likely take law enforcement ten to fifteen minutes to respond. You must take action to protect your family. But just how much force can you use without breaking the law? What if you use a firearm and shoot the robber? What if he dies?

The Law of Self–Defense
In cases where self–defense is alleged, the person confesses doing the act charged, but seeks to justify that act because it was necessary to save themselves from harm's way. When self–defense is asserted in a criminal case, the defendant only has the burden of presenting some evidence to establish that the action was justified. The State of Florida must then prove beyond a reasonable doubt that the defendant did not act in self–defense. See G.T.J. v. State, 2008 Fla. App. LEXIS 17052 (Fla. Dist. Ct. App. 2d Dist. Nov. 7, 2008).

A person is justified in using force, except deadly force, against another when the person reasonably believes that the conduct is necessary to defend themselves or another against the other's imminent use of unlawful force. However, even deadly force is allowed if he or she reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself or another.

In the scenario involving the home break–in, the family member would likely be justified in using self–defense even if in doing so he shot and killed the burglar. When it comes to home protection (including office buildings and cars) there is a presumption of fear of imminent death or great bodily harm and therefore using defensive force that is likely to cause death or great bodily harm, such as shooting someone with a gun, is allowed. Generally the court will also look to determine (1) whether they placed themselves in a situation where they would be forced to choose the criminal conduct; (2) there existed no other way to avoid the threatened harm except the criminal conduct; (3) the harm done was more violent than the conduct attempting to avoid; and (4) whether the person ceased the criminal conduct as soon as the necessity ended.

Of course there are exceptions to the self–defense claim which include force used in the commission of a felony. In the case of the burglar, since he was in the commission of a felony, he would not be able to claim self defense even after being shot at by the home owner.

Hopefully, you are never placed in a situation where these types of actions are necessary. The best way to avoid these predicaments is to call the police should anything similar arise. However, if you unable to seek law enforcement help, it is important that you realize that under certain circumstances the law provides protection to those in need of self–help.