Stand Your Ground Explained

florida stand your ground


The Scope of the Law

August 7, 2015 would have been Trayvon Martin’s twentieth birthday. On such an anniversary, a review of some of the laws that applied in how the case was handled is apt. One of the more important aspects of the case of Martin, unlike Michael Brown or Eric Garner who were killed by police, was George Zimmerman’s defense against the charges. The basis of Zimmerman’s defense was the now infamous “Stand Your Ground” law. This law gives a defense to homicide and replaces a long standing rule regarding the duty to retreat from a dangerous situation with one in which a person has no duty to retreat whatsoever if that person reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself. It may also be used to protect someone else or to “prevent the imminent commission of a forcible felony.”

This provision is not a new kind of defense. Instead it merely broadens the principle that a person may use deadly force in self-defense if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm. Rather it essentially recognizes, contrary to established common law duty, that there is no duty to retreat, or under certain conditions the duty is removed.

The Duty to Retreat


The common law principle of a duty to retreat is well established in the English common law system and thus imported to the United States. (See Acts of Parliament of 2 Ed. III (Statute of Northampton), and 5 Rich. II of 1381 (Forcible Entry Act 1381 Weiand v. State, 732 So. 2d 1044 (Fla. 1999); State v. Bobbitt, 415 So. 2d 724 (Fla. 1982). Even as recently as 1997 in Hunter v. State, a combatant had to “retreat to the wall” before using deadly force. Several other states, like Florida did in 2005, have established statutes that minimize or eliminate this requirement. This change has made the duty to retreat almost a minority rule in the United States.

But Florida’s Stand Your Ground statute did more than just eliminate the duty to retreat; it also expanded when one can use deadly force. No longer is the use of deadly force restricted to imminent, serious bodily harm or death, but also cases involving home or vehicle invasions. Section 776.013, Florida Statutes creates the assumption that the owner or occupant of a home or car is presumed to hold a reasonable fear of death or great bodily harm that justifies the use of deadly force when someone unlawfully enters the house, car . Essentially allowing the commonplace belief that one is justified in shooting anyone in their home there illegally is actually true, whereas in most jurisdictions it is not the case and can open up shooter to serious liability, both civilly and criminally.

Florida had already recognized the “Castle Doctrine,” which provides that where one is not the aggressor and is violently assaulted in one’s home, there is no obligation to retreat. However, it still required the owner or occupant of the home to reasonably believe that force was necessary to prevent death or serious bodily harm. Stand Your Ground has abrogated the need for the last part, it is assumed by the Stand Your Ground statute so long as they are within a “dwelling,” “residence,” or “vehicle.”


When Does Stand your Ground Not Apply?


Though expansive, there are some areas where the Stand Your Ground statute does not apply. Under Section 776.013(3) and 776.041, the use of force is not a defense under Stand your ground when the accused was involved in something illegal or somewhere they have no legal right to occupy. These are standard reasons to prohibit some defenses but, given the Stand Your ground expands so many rights and abridged other obligations, making sure that it statutorily defines when Stand Your ground cannot be raised was helpful for the legislature to have included.


In one high-profile case a man invoked the Stand Your Ground law, claiming that he heard neighbors talking about coming to “get him” and he needed to defend himself. At the hearing regarding the use of the defense, Woodward’s attorneys argued that his family had been victimized for years by bullying at the neighbors. Video showing taunts and threats against Woodward and his family were shown in an attempt to prove the issue. The judge was not convinced.


As the Woodward case also indicates attempting to justify the use of force will likely fail in cases where the defendant provoked the violence initially. In those cases, Section 776.041 requires the person using the defense to show that they tried every means of non-violent or non-deadly to get themselves out of the situation. Likewise the person using the defense has to show that the other person used such force, that it led them to “reasonably believe that he or she was in imminent danger of death or great bodily harm.” In a nutshell, if a person withdrew from physical contact, unequivocally communicated to the other person that he or she desired to stop, and the other person, despite being told to stop, kept up the use of force, then that person can use the stand your ground defense.

Stand Your Ground Immunity

In the Trayvon Martin case, the notion that Stand Your Ground prohibited the prosecution of George Zimmerman is fundamentally not true. Unlike what happened in that case, Stand Your Ground no way prevents a prosecution from being initiated by the prosecutor. In fact, State Attorneys routinely file charges against defendants even where there is a clear “Stand Your Ground” defense. Unlike Zimmerman’s case, where the State Attorney did not pursue charges, when the prosecutor does file charges, the defense counsel may file a Motion for Declaration of Immunity and Dismissal after the criminal case has proceeded to that stage.

Again, unlike Zimmerman’s case the motion is to be heard at an evidentiary hearing, where the defense must show the defendant is entitled to immunity by the less stringent civil law standard of a preponderance of the evidence. Only if successful at this hearing is immunity granted and the case dismissed. What did not happen in Zimmerman’ case was a full evidentiary hearing to test the merits of his potential defense. Instead it was assumed to be successful and therefore the prosecutor did not go through all of the steps to charge Zimmerman and proceed with his case until that hearing. That is why, despite years passing, the Martin/Zimmerman case still raise questions about the use, and indeed misuse, of Florida’s now infamous Stand Your Ground statue.



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Howard Iken is a Florida attorney that practices in family law, bankruptcy, and criminal law. He can be reached at