Florida's New "Stand Your Ground" Law: Why It's More Extreme than Other States' Self-Defense Measures, And How It Got that Way

By ANTHONY J. SEBOK
anthony.sebok@brooklaw.edu
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Monday, May. 02, 2005

Last week, Governor Jeb Bush signed a bill that has become known as the "Stand Your Ground" law. The law immunizes citizens who use deadly force in self-defense against criminal prosecution and civil liability.

Critics of the law are afraid it will promote vigilantism. Supporters say that it merely brings Florida into line with the majority of other states. But the truth is the law goes beyond what other states are doing.

In this column, I'll discuss the new law, and argue that it is an example of a simple reform that was hijacked by the NRA.

What Florida Self-Defense Law Previously Was Like

Until last week, the law in Florida concerning self-defense could be divided into two parts: First, there were the rules that governed when deadly force could be used if one was attacked in one's own home. Second, there were the rules that governed when deadly force could be used if one were attacked outside of one's own home.

To explain the prior Florida rules, I will use the example of Lisa, who is attacked by Bob.

First, imagine Lisa is attacked by Bob in her own home. She could use deadly force if she were reasonably afraid that Bob was going to inflict a serious injury on her. Moreover, even if Bob was a burglar interested only in her property and she had the option of running outside of her house to safety, she could use deadly force if she were reasonably afraid that Bob was going to inflict a serious injury on her if she did not run away. Put simply, she is allowed to "stand her ground."

This is known as the "castle doctrine" -- based on the maxim that "One's home is one's castle" -- and it governs the rules of self-defense for criminal and tort law in almost every state.

Second, imagine, instead, that Lisa is attacked by Bob on the street in Florida. In this instance, she cannot use deadly force if she can retreat safely from Bob. (For instance, suppose a drunken, knife-wielding Bob confronts Lisa in front of a bar featuring armed bouncers, into which Lisa can safely escape.) So even if Lisa knows Bob will kill her if she "stands her ground," she cannot kill him while still being able to retreat.

Florida's retreat doctrine reflected a certain attitude among courts which might seem quaint today, but is easy to understand. Florida courts took the position that life was so precious -- even the lives of people like Bob -- that victims of violent attacks should not kill unless it became absolutely necessary.

The bottom line, then, was that victims had to take advantage of a "safe" retreat except when attacked in their own homes. But what if the victim doesn't retreat? What consequences follow? Could she be prosecuted, sued, or both?

In almost every state except Florida, Lisa could not be criminally prosecuted. In a majority of states, she also cannot be sued in tort.

But some states would allow Lisa to be sued. And the Restatement (Second) of Torts -- a classic statement of tort law principles -- agrees: Its Section 65 would still allow Bob to sue Lisa for personal injuries if she responded to his upturned knife with a gunshot when she could have retreated safely.

How the New "Stand Your Ground" Law Changed the "Castle" Doctrine

Florida's new "Stand Your Ground" law changes Florida's self-defense rules in several ways.

First, it is now very easy to invoke the "castle" doctrine in Florida.

Under the old law, a person who killed someone in their home had the burden of proof to show that they were in fear for their safety. Now, all a person has to do is establish that the person they killed was "unlawfully" and "forcibly" entering their home when they shot the victim.

That is because the new creates a presumption that anyone who forcibly and illegally enters a home is intent on threatening the lives of the people within. And, at least according to a report written for the Judiciary Committee of the Florida Senate, that presumption is conclusive; it cannot be rebutted with contrary evidence.

So let's go back to Lisa and Bob. Under the old law, Lisa would have had to prove not only that Bob was in her home, but also that she was afraid for her life (or the lives of others in the house). In reality, that was often easy to do -- usually juries would take the word of a living homeowner over a dead burglar (even if the burglar was unarmed). But now Lisa, in theory, has a free hand to shoot even a plainly unarmed burglar as to whom he or she, in fact, felt no fear at all.

Second, the new Florida law expands the definition of "castle" to include vehicles -- such as cars and boats. This expansion the castle doctrine was clearly intended to address carjacking.

Third, in Florida, Lisa can now "stand her ground" even if she is outside of her home. But to do so, she must "reasonably believe" that using deadly force is necessary to prevent "imminent" use of deadly force against herself or others.

Thus, Florida is now joining the large number of states who do not value "life" above the right to stand unmolested wherever one wants. It's unlikely, however, that this change will change outcomes in particular cases.

Previously, all Lisa had to do to win her case was argue that she honestly and reasonably believed that she could not retreat safely. Now, she has to argue, instead -- somewhat similarly -- that she reasonably believed that if she didn't use deadly force, Bob imminently would.

Under either standard, Lisa still has the burden of proof to justify her killing. Also, under either standard, the jury may disbelieve her if there are witnesses around to contradict her story.

It's Not True that the New Law Merely Aligns Florida with Other States

According to Rep. Dennis Baxley, R-Ocala, the new law brings Florida into line with other states. "We're not breaking ground here. We're catching up," Baxley said.

That is probably more or less true when it comes to the legal standard governing use of deadly force outside the house. But it is very inaccurate when it comes to the legal standard governing killings inside of homes -- and, especially, in vehicles, which now count as a kind of "castle" under the "castle doctrine." Here, the new law has truly radical effects.

Why? Because the new law bulks up the old "castle" doctrine -- once a reasonable rule of law -- until it is a legal monstrosity: a legal Incredible Hulk.

Recall that now, at least according to the Senate Report, there is an irrebuttable presumption that anyone who forcibly and illegally enters a home -- or, under the new law, a car -- is intent on threatening the lives of the people within. That means that even in the face of overwhelming evidence that Bob had no intent to physically harm Lisa, his estate will not be able to sue her.

It may, in fact, be the reality, that in almost all cases in which a citizen kills an unlawful intruder, or carjacker, it is because the unlawful intruder, or carjacker, was capable of killing, and willing to kill, the citizen first. (I suppose the "gentleman thief" no longer exists in Florida.) But there is at least a chance of serious miscarriages of justice.

Suppose that a doctor's drug addict brother breaks into his mansion to raid the medicine cabinet. Now, the doctor can kill his brother to ensure that he will be the sole heir to their wealthy parents' estate.

Or suppose a teacher upon entering his SUV, finds a student who has broken in so that he can deface the interior. Though the intent was clearly vandalism, and the boy has no record of violence, the irate teacher guns down the student. According to Florida, this would appear to be legal.

What can proponents say when examples like these are raised? It's hard to imagine. Perhaps they would claim that those who break the law by violating another's "castle" deserve what they get -- even if what they get is death.

The "Stand Your Ground" Law Says Property Is More Important than Life

In this respect, Florida has taken a wrong turn that no other state should emulate.

In effect, its law allows citizens to kill other citizens in defense of property.

The principle holding that life is more valuable than the defense of property is deeply embedded in our legal history. The Florida law contravenes this simple principle. (That is does so by hiding behind a legislative "presumption" that all burglars or car thieves are potential killers should not obscure that fact.)

The old version of the castle doctrine told homeowners that they could kill when they reasonably believed that their lives were in danger. Now the law tells average citizens they can kill when they reasonably believe that their homes or vehicles have been illegally and forcibly invaded.

That adds an additional wrinkle -- and an additional way innocents can be killed. Anyone can make a mistake in the heat of the moment, but the margin for error in the new law is unbearably large.

What if Bob is a panhandler who approaches Sue's car and touches it against her wishes? Perhaps it would be obvious to most observers that he had no intention of entering the car, but what if Sue panics and thinks he is a carjacker?

It is of no help to say that the law was not designed to permit her to use deadly force under those circumstances: after Bob is dead and Sue is facing criminal and civil penalties, the damage has already been done.

The only test of laws is their effect in the real world. The castle doctrine, until it was changed by Florida, was a practical compromise between a number of competing interests in life. It was a balance between the state's interest in allowing citizens to protect their own lives, and its interest in minimizing violence in the streets -- ranging from vigilantism to a too-quick trigger finger.

The new "Stand Your Ground" law is likely to produce a number of ugly real-world side effects. Its real purpose seems to be the capital punishment of property-criminals, regardless of whether their deaths help protect the lives of anyone else.

Furthermore, Florida's castle doctrine has now been expanded so that the test for self-defense covers far more circumstances and locations than before.

All in all, the room for error is much larger. In addition, the law sends a very confusing message to the citizens of Florida about when they can use lethal force with impunity.

If my prediction that this law will insulate certain home- or car-owners who kill without good reason to do so turns out to be correct, I hope the Florida legislature will have the courage to revisit this law and fix it. In the meantime, the NRA, flush with their victory in Florida, is lobbying to have the "Stand Your Ground" law adopted in other states, such as New York. Other states should reject the NRA's "help" when it comes to revising their self-defense laws.


Anthony J. Sebok, a FindLaw columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.