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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
>----
>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.
>Click here to find out more!
>
>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.
>
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