How does stand-your-ground immunity work in a Florida criminal case?

"Stand your ground" is the common name for two things in Florida law. The first is the rule that a person using justified force has no duty to retreat. The second is an immunity: section 776.032(1), Florida Statutes, says a person who uses or threatens force as permitted in sections 776.012, 776.013 or 776.031 "is justified in such conduct and is immune from criminal prosecution and civil action." Immunity is decided by a judge before trial, which makes it different from self-defense argued to a jury. This page explains how it works in a South Florida criminal case. Mr. Mead's practice areas are on our criminal defense page.

Self-defense claims come up most often in assault and battery cases, and in cases involving firearms. How Mr. Mead approaches those charges is on our assault and battery page.

What separates those charges, from a threat to an aggravated battery, is explained in the difference between assault, battery and aggravated battery.

When is force justified in Florida?

Both statutes cover threatening force as well as using it. A "forcible felony" includes, among others, murder, manslaughter, sexual battery, carjacking, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery and "any other felony which involves the use or threat of physical force or violence against any individual" (s. 776.08).

What is the presumption for homes and vehicles?

Section 776.013(2) presumes that a person had a reasonable fear of imminent death or great bodily harm when using or threatening defensive force against someone who was unlawfully and forcefully entering, or had entered, a dwelling, residence or occupied vehicle, or was trying to remove someone from it against his or her will, if the person knew or had reason to believe that was happening. A person who unlawfully and forcibly enters is also presumed to intend an unlawful act involving force or violence (s. 776.013(4)). The presumption does not apply when the person against whom force was used has a right to be there, such as an owner or lessee, and there is no domestic violence injunction or written pretrial no-contact order against that person; when a child or grandchild in that person's lawful custody is being removed; when the defender is engaged in criminal activity; or when the person entering is a law enforcement officer performing official duties who was identified or should have been recognized (s. 776.013(3)). Domestic violence cases raise their own issues, covered on our domestic violence page.

How does an immunity claim work, step by step?

1. The investigation. Police may investigate a use of force with their standard procedures, but "may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful" (s. 776.032(2)).
2. Arrest and first appearance. If an arrest happens, the person sees a judge within 24 hours (Fla. R. Crim. P. 3.130); the first hours are described in the first 48 hours after an arrest in Palm Beach or Broward.
3. The motion. The defense raises immunity by a written motion to dismiss. Rule 3.190(b) says all defenses other than not guilty must be made by motion to dismiss, "including immunity under section 776.032, Florida Statutes," and the court must dismiss a motion filed after its deadline unless there is good cause or the motion rests on fundamental grounds (Rule 3.190(c)).
4. The hearing. The court may take evidence on any factual issue needed to decide the motion (Rule 3.190(d)(1)). Witnesses, video and physical evidence are often presented.
5. The burden. "Once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity" (s. 776.032(4)).
6. The ruling. If the State does not meet that burden, the person is immune and the charge is dismissed. If the motion is denied, the case continues toward trial on the usual timeline, described in how long a Florida criminal case can take. Other ways a case can end before trial are covered in can criminal charges be dropped before trial in Florida.

What changes the answer?

• Who started it. The justification is generally not available to a person who "initially provokes" force against himself or herself, unless the force used against him or her is so great that he or she reasonably believes there is imminent danger of death or great bodily harm and every reasonable means of escape is exhausted, or he or she withdraws in good faith, clearly signals it, and the other person continues (s. 776.041(2)).
• A forcible felony in progress. The justification is not available to a person attempting, committing or escaping after a forcible felony (s. 776.041(1)).
• Criminal activity and location. The no-retreat rule for deadly force applies when the person is not engaged in criminal activity and is in a place where he or she has a right to be (s. 776.012(2)). Carrying a concealed firearm while ineligible is itself a crime, as explained in is carrying a concealed gun without a license still a crime.
• A police officer. Immunity does not apply when the person against whom force was used was a law enforcement officer acting in official duties who was identified, or whom the person knew or reasonably should have known was an officer (s. 776.032(1)).
• What the person reasonably believed. The statutes turn on reasonable belief, so what the person saw, heard and knew at the moment is central.

A worked example

For example, picture a hypothetical argument in a parking lot in Boca Raton. One man shoves another and swings at him; the second man punches back once and walks away, and the first man falls and is hurt. The second man is later charged with battery. His lawyer files a motion to dismiss claiming immunity, supported by parking lot video showing the first man struck first. At the hearing, once the defense makes a prima facie showing that the punch was nondeadly force used against an imminent attack, the State must prove by clear and convincing evidence that the force was not justified. If the video instead showed the second man starting the fight, section 776.041 would limit his claim. The facts are invented, and the example does not predict any result.

Does immunity also stop a civil lawsuit?

Yes. The same subsection grants immunity from civil action by the person against whom force was used, or that person's personal representative or heirs (s. 776.032(1)). If a court finds the defendant immune, it "shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff" (s. 776.032(3)).

Common mistakes people make

• Giving a long statement at the scene before speaking with a lawyer, even when the force was justified.
• Leaving without calling for help or preserving evidence, such as video from nearby businesses.
• Waiting too long to file the motion, when the court can reject a motion filed after its deadline.
• Posting about the incident on social media.
• Assuming immunity is automatic; it must be raised, and the facts decide it.

What to do this week

1. Write down, for your lawyer only, everything that happened, in order, and what you believed at each moment.
2. List every witness and every camera that may have recorded the incident.
3. Photograph any injuries you received and keep medical records.
4. Keep any weapon involved and related paperwork as your lawyer directs; do not dispose of anything.
5. Follow every bond condition, including any no-contact order; bond is explained in how bond is set in Florida.

Frequently asked questions

Do I have to retreat before defending myself in Florida?

No, when the force is justified. Section 776.012 says a person using nondeadly force in accordance with it has no duty to retreat, and a person using deadly force in accordance with it has no duty to retreat if not engaged in criminal activity and in a place he or she has a right to be.

Does stand your ground apply in my car?

The home presumption in section 776.013(2) covers an occupied vehicle, defined as a conveyance of any kind designed to transport people or property (s. 776.013(5)(c)). The general rules in section 776.012 apply anywhere.

Can I be arrested if I acted in self-defense?

Police may investigate, but section 776.032(2) bars an arrest for the force unless the agency finds probable cause that the force was unlawful. The statute defines criminal prosecution to include arresting, detaining, charging and prosecuting.

Does it cover threats, like showing a weapon?

Yes. The statutes refer to using or threatening to use force, under the same standards. Gun cases often involve other charges as well; see our firearms violations page.

Who decides immunity, the judge or a jury?

The judge, at a pretrial hearing on the motion to dismiss. Rule 3.190(d)(1) lets the court receive evidence on the facts needed to decide it.

What standard does the State have to meet?

Clear and convincing evidence, once the defendant raises a prima facie claim (s. 776.032(4)). That is a higher standard than the probable cause needed for an arrest.

How can Mr. Mead help?

An immunity claim is won or lost on evidence gathered early: video, witnesses, injuries and a clear timeline. Mr. Mead investigates the incident, prepares the motion and presents the evidence at the hearing. Every case is different, and no outcome can be promised. For a confidential conversation, call (561) 362-6677, 24 hours a day.

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