“Stand Your Ground”

CRIMINAL DEFENSE FORUM

By: Mark Eiglarsh

A VERY LIKELY PREDICAMENT

Although usually safe and always amusing for its "variety of characters", South Beach is a place where one may get lost amidst the plethora of dark alleyways not located on the main promenade. For example, imagine a situation where you are returning to your vehicle after an enjoyable evening and are confronted by someone who stereotypically utters the phrase, "Your money or your life!" What do you do in this situation? What does the law permit you to do? Are you obligated to retreat with the potential of the assailant running after you, or are you lawfully entitled to "deal" in a way in order to prevent the assailant from physically doing the same thing to others in the future?

ANALYSIS

There is no defense like a good offense. This trite but accurate phrase does not merely apply to sports, but also applies to the preservation of oneself. From the beginning of time, society has generally accepted the premise that there will only be peace through security. In fact, in the throes of international conflict, President Roosevelt said, "Speak softly and carry a big stick". This proposition may equally be applied to a micro, personal level; or at least that is how the Florida Legislature views it. Right or wrong, Florida Statute 776.013 (2009), also dubbed the "Stand Your Ground" law, is an authorization by the state law makers to meet force with force if threatened or attacked, without the general requirement to retreat.

Pursuant to the statute, a person need not retreat and may meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm. However, the one defending themselves must not be engaged in an unlawful activity before the confrontation and must have a right to be at a place where assaulted. Reasonableness, however, is a murky legal standard, especially in these cases. Is it reasonable to use force to defend yourself against a child who is attacking you with a plastic baseball bat? Also, is it reasonable to use force to defend yourself against a scary looking adult when instructed to take your jewelry off at gun point? The court in Thomas v. State, 918 So. 2d 327 (2005) determined that before the defendant can claim the defense, " he must establish that his life was in imminent danger and he could not safely retreat. A defendant seeking refuge in a claim of self–defense must have used all reasonable means in his power, consistent with his own safety, to avoid the danger and to avert the necessity of taking human life." Id. at 337.

Essentially, this Florida law does not endorse a "shoot now, ask questions later" approach to defense, but rather greatly restricts the State's ability to prosecute people who lawfully defend themselves against an attack. Depending on the facts, one may be found not guilty if one kills or maims a mugger on the streets of Florida. However, if one decides to kill or maim another who gives the slightest impression of aggression to defend him or herself, he may find himself stripped of his liberty. Essentially, this law is designed not to give a license to kill or maim, but permission to defend against a legitimate threat of death or great bodily harm. To be acquitted, one must not affirmatively seek out trouble, but defend themselves when necessary and observe the mantra of "speak softly and carry and big stick".