Duty to Retreat / Self Defense Case

[not2cleverRed]

Not necessarily. You have a right not to be bothered. If someone makes it a habit to harass, threaten or attack you, it is not smart to encourage or embolden the perp to continue to engage in that course of action. Someone charges at you to do you harm, they deserve being met with lethal force. No jury will say this is an unreasonable act in just about any jurisdiction.

That's a rather bold and sweeping statement.

It would also be inaccurate.

The statute on this in FL says you can use deadly force to stop a "forcible felony" which it also defines legally here ( https://tinyurl.com/forciblefelony ) You can also use deadly force in FL if by your calculation, death or bodily harm is imminent. The statute says nothing about fleeing from your attacker -- not in FL.

It only says that if you are to invoke self defense, (1) you cannot have been engaged in a criminal act at the time and (2) must have been in a place that you had a legal right to be.

Meaning: if you DON'T have right to be there, then you CANNOT invoke self defense using this statute.

This would imply that if you DON'T have a right to be there, then discretion is the better part of valor.

 

[user987654321]

[/QUOTE]
Meaning: if you DON'T have right to be there, then you CANNOT invoke self defense using this statute.

This would imply that if you DON'T have a right to be there, then discretion is the better part of valor.
[/QUOTE]

This is your emotion talking. Read the statute. Whether you are at the scene of an attack "legally" is only relevant in determining whether you have a duty to retreat. Having a duty to retreat does not mean you absolutely did in fact have an ability or means to retreat without putting your life further at risk.

Whether it is feasible or even rational to retreat is an argument you have on a different day. No one can prove or say to you with specificity using some one-size-fits-all approach how you were supposed to retreat or flee from a charging attacker. You cannot assume everyone claiming self defense is some sort of Carl Lewis and could have escaped.

If you don't know exactly what your attacker is armed with, you can't outrun a bullet and I don't necessarily have the time or care to try to figure out what exactly a charging attacker is armed with in the midst of an attack. The attacker here had or has no right superseding the defendant's as to being at the scene of the attack at the time of the attack.

Any jury can determine from any set of facts who the initial aggressor is and if a reasonable person could perceive or deduce that something harmful or deadly is or was imminent from the aggressor's conduct.

 

[quincy]

Any jury can determine from any set of facts who the initial aggressor is and if a reasonable person could perceive or deduce that something harmful or deadly is or was imminent from the aggressor's conduct.

Again, all facts matter.

Someone who hopes that their use of lethal force against another can be judged self defense will want a criminal defense attorney arguing that the use of force was a necessary response to an unprovoked incident that caused a reasonable fear of imminent death or great bodily harm, and there was no ability to safely retreat.

When you are in your own home or in your own car, there is no duty to retreat. You can “stand your ground” and use force in self defense. This is because the law presumes you have a reasonable fear of imminent bodily harm or death when someone confronts you in your home or car.

If you were someplace you should not have been and you injured or killed someone because you thought they were going to injure or kill you first, no amount of reading stuff online is going to help you escape an arrest, a criminal charge or a conviction. For that sort of help you will want an experienced criminal defense attorney. Here is a link to the Florida Bar Organization’s Attorney Referral Service to help you find an attorney in your area: https://www.floridabar.org/public/lrs/

 

[Taxing Matters]

Not necessarily. You have a right not to be bothered. If someone makes it a habit to harass, threaten or attack you, it is not smart to encourage or embolden the perp to continue to engage in that course of action.

My post was directed at the one time encounter with someone, not an ongoing conflict with someone. That said, usually you'll have other remedies available to you to deal with that ongoing problem than shooting or otherwise injuring someone. There are times when that is the only option, but if there is some other option for you usually that's the best way to go. If you shoot the other person and claim self-defense, that won't prevent you from being arrested and charged with the shooting, and incurring all the costs that go with that. Nor would it prevent the injured person or his/her estate from suing you for damages, either, And you can never assume what a jury will do. I've seen cases in which I was sure the one side had steam rolled over the other and that the jury would find in that party's favor only to see the jury come back with a completely different view than I had. Thus, standing your ground and using lethal force comes with risks. If it's the only way to prevent you from being the one dead on the floor, then of course you defend yourself and deal with any legal issues later. But if you can avoid doing that, you'll avoid those risks. Don't get caught up the macho idea that you have to stand firm or be thought of as a lesser man. That's the kind of thinking that tends to escalate confrontations rather than descalating them, and the latter should be your goal. What the other guy thinks of you should not be a significant concern. Your safety and risk reduction should be your main concerns in that kind of confrontation. I wouldn't care at all what the other guy thought if I ducked out and left the scene rather than stand there and put myself at risk of injury, death, and/or legal problems. I have enough confidence in myself not to need to care what some agitated idiot thinks of me.

 

[Taxing Matters]

Any jury can determine from any set of facts who the initial aggressor is and if a reasonable person could perceive or deduce that something harmful or deadly is or was imminent from the aggressor's conduct.

Again, the jury may not see it the way you do. That's the risk of going to trial with self defense as your strategy to avoid conviction or a judgment against you. The jury wasn't there to see what went down. They only have what was presented in court to go on. And if you don't do a good job presenting your self defense claim, you can lose even though with a better presentation or another jury you might have won. There is always at least some risk a jury will go against you. It's better if you can avoid putting your fate in the hands of a jury in the first place.

 

[PayrollHRGuy]

If you have read the law, then you should read and understand my post (or question).

You have not explained your situation well enough for anyone to apply the law. That's why I gave you the law.

 

[user987654321]

You have not explained your situation well enough for anyone to apply the law. That's why I gave you the law.

I did not ask you what the law was about self-defense or stand your ground in FL. You either know of a caselaw where a self-defense claim was attacked solely on the basis of whether the defendant was somewhere lawfully or not. And how such an attack would matter if both combatant were both unlawfully at the said place where the attack occurred.

 

[Zigner]

I did not ask you what the law was about self-defense or stand your ground in FL. You either know of a caselaw where a self-defense claim was attacked solely on the basis of whether the defendant was somewhere lawfully or not. And how such an attack would matter if both combatant were both unlawfully at the said place where the attack occurred.

Go pay an attorney to do your research and deal with the attitude.

 

[Taxing Matters]

I did not ask you what the law was about self-defense or stand your ground in FL. You either know of a caselaw where a self-defense claim was attacked solely on the basis of whether the defendant was somewhere lawfully or not. And how such an attack would matter if both combatant were both unlawfully at the said place where the attack occurred.

Now you've changed the question to have both persons in a place where they were not lawfully allowed to be. Your original question was:

Obviously you cant break into someones house to rob the place and claim self defense when confronted by the owner but there are instances where you can find yourself in a place that you technically shouldnt have been. Does this mean you cannot stand your ground or defend yourself in such situations?

However, I don't see that the change in the question impacts the answer. The statute does not address whether the victim was allowed to be where he/she was at the time. Thus, that is not relevant in assessing whether the defendant could rely upon the stand my ground law, and no Florida case law makes that distinction. The focus is on whether the defendant had the right to be there.

As to your original question, in this thread you have attempted to make a distinction carving out situations in which the defendant was not "technically" allowed to be where he/she was from the statute. But the statute makes no such distinction. Either the defendant had the right to be there or he/she didn't. Even if in your view the prohibition against being there was just a technicality that doesn't matter. The statute simply says that the defendant "does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be." Fla. Stat. Ann. § 776.012(2). So the question for the jury is whether the person had a right to be where he/she was when invoking the stand my ground law. If the law is clear that the person did not have the right to be there, even if you think it a mere technicality, the jury should conclude that the person did have the right to stand his/her ground. I see no case law in Florida that makes the distinction you are attempting to make.

Again, the bottom line is whether the person had the right to be there. Either he/she did or didn't. If technically he/she was not permitted to be there, that means he/she was not permitted to be there. Thus, until the Florida courts hold otherwise, if in a park during hours where you are not allowed to be there, the defendant would not be able to rely upon the stand my ground law for his defense. That does not preclude using any other defense that may be available to the defendant.

 

[user987654321]

My post was directed at the one time encounter with someone, not an ongoing conflict with someone. That said, usually you'll have other remedies available to you to deal with that ongoing problem than shooting or otherwise injuring someone. There are times when that is the only option, but if there is some other option for you usually that's the best way to go. If you shoot the other person and claim self-defense, that won't prevent you from being arrested and charged with the shooting, and incurring all the costs that go with that. ...

You can't keep making excuses for people. We all take an array of actions based on what our understanding of the law is and all have responsibility for our actions and words. You provoke or bring an unwarranted and unlawful attack against someone (we are talking about a forcible felony)... that in itself is unlawful and carries a legal consequence if you were to survive whatever force someone utilized to defend themself. You don't attack someone unlawfully and then expect the person attacked to abide by some law as if the attacker gave a F^%*& about the law in the first place.

 

[user987654321]

Go pay an attorney to do your research and deal with the attitude.

But you can do research right?

 

[Zigner]

But you can do research right?

Not for free.
Not for you.

 

[Bali Hai Again]

What exactly does "...in a place where he or she has a right to be..." mean? Are there any strange cases where someone have used this as an excuse to poke holes in a self defense claim?

It should be very clear to you by now that nobody here knows of any “strange cases where someone have/has used this as an excuse to poke holes in a self defense claim.

My advice is to stay away from quicksand when defending yourself.

 

[user987654321]

Now you've changed the question to have both persons in a place where they were not lawfully allowed to be. Your original question was:



However, I don't see that the change in the question impacts the answer. The statute does not address whether the victim was allowed to be where he/she was at the time. Thus, that is not relevant in assessing whether the defendant could rely upon the stand my ground law, and no Florida case law makes that distinction. The focus is on whether the defendant had the right to be there.

As to your original question, in this thread you have attempted to make a distinction carving out situations in which the defendant was not "technically" allowed to be where he/she was from the statute. But the statute makes no such distinction. Either the defendant had the right to be there or he/she didn't. Even if in your view the prohibition against being there was just a technicality that doesn't matter. The statute simply says that the defendant "does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be." Fla. Stat. Ann. § 776.012(2). So the question for the jury is whether the person had a right to be where he/she was when invoking the stand my ground law. If the law is clear that the person did not have the right to be there, even if you think it a mere technicality, the jury should conclude that the person did have the right to stand his/her ground. I see no case law in Florida that makes the distinction you are attempting to make.

Again, the bottom line is whether the person had the right to be there. Either he/she did or didn't. If technically he/she was not permitted to be there, that means he/she was not permitted to be there. Thus, until the Florida courts hold otherwise, if in a park during hours where you are not allowed to be there, the defendant would not be able to rely upon the stand my ground law for his defense. That does not preclude using any other defense that may be available to the defendant.

Nothing changed! If you read through the thread, you will see that someone else had asked and clarified that both combatants had no legal right to be there. This is not a new fact.

Sometimes it is necessary to get at the context behind any statute. When the statute says you need not retreat when under attack somewhere if you are not engaged in a criminal act and have a legal right to be there. We cannot say that means that if faced with an unlawful attack that you can only defend yourself if you own the parcel or had a right to be where the attack occurred. None of the case law I have read where self-defense was invoked required proving someone had a legal right to be anywhere. You cant read things out of context.

No where does the statute say you can only invoke self defense if you were somewhere legally. It only says you have a duty to retreat if that were the case.

Even if you were to trespass on a property.. not even the property owner is authorized to take life solely on the basis of trespassing. That dont mean you wont get shot if you trespassed on the wrong property. The property owner has no real duty to try to figure out if you are a robber or some drunk who just stumbled on their property. No one owes you a duty to retreat when they have their safety to worry about.