A PRIMER ON USE OF DEADLY FORCE (PART TWO)

 

 

In Part One, I defined deadly force, explained my lecture framework, and provided an overview of when such force might lawfully be employed. To summarize, if you: can (mentally and physically able, and have the appropriate equipment); may (act within the law, and agency policy, if applicable), and; should (exercised sound judgment, reasonably deciding deadly force is necessary), or simply must (to avoid your own likely death), deadly force is properly used to defend against imminent and otherwise unavoidable death or great bodily harm.  It is also lawfully used in situations specifically enumerated by state statute, for example, to intervene in the commission of a felony involving force (threatened or actual injury).   State law may treat situations of self-defense, defense of persons to whom some duty is owed, or defense of strangers differently.  LEO’s have further dimensions of analysis specifically for arrestees and escapees, and generally, because of the constitutional prohibition on the use of “excessive” force.

An important part of analyzing whether deadly force was lawfully employed is whether there existed a duty to attempt a retreat, or to first employ non-deadly force.   Retreat within or from one’s own domicile is not usually required.  When deadly force is the indicated response and legally authorized, there is rarely, if ever, a case law based requirement to first employ non-deadly force, even if it might have been successful.  (This applies to LEO’s as well as the unsworn).    For the best description of your state’s deadly force law, check out the “pattern” jury instructions given in cases when the defense of justification is asserted.

Firmly rooted in the law of almost all states is the notion that retreat before using deadly force in one’s home is impractical, unseemly, and dangerous, and thus, it is not required.  This is usually referred to as the Castle Doctrine.   The duty to retreat outside the home is now a prominent discussion topic due to statutory enactments containing “stand your ground” (SYG) principles.  (A SYG enactment may not actually alter a state’s retreat requirement).   More than one-half of the states now have some version of a SYG law, many patterned after Florida’s.   SYG laws are seen as a necessary expansion of the Castle Doctrine, as they acknowledge the difficulty in effecting a retreat while under mortal attack, and the inability of the aged, infirm, and handicapped to do so.    SYG laws expand the Castle Doctrine’s applicability to one, some, or all of: the curtilage or adjoining structures of a residence; a temporary residence such as a hotel room; one’s place of business or employment; a vehicle, or; any place where a person is lawfully permitted to be, if the person is completely law-abiding at the time defensive force is used.

Self-defense or defense of others is just that, a defense (justification) to a criminal charge (for example, murder, manslaughter). It was classically characterized as an “affirmative” defense. The burden of proof in such cases generally falls on the party asserting the defense, and the defense must be proved by a preponderance of the evidence. However, in modern self defense analysis, once self defense is raised with sufficient evidence to be put before the jury, the state must disprove the defense as part of its case, beyond a reasonable doubt. In some states where a person raises the defense of justification due to self-defense, the state has the burden to show retreat in complete safety was possible. (New York is an example). Note this interesting point about the law of self defense. One state (Kansas) disallowed it use in an assault case where deadly force was threatened but not actually used. Check your own state law to see if threatening to use deadly force is protected under the self-defense status, and also how a “warning” or missed shot is considered.

Ordinarily, one having a valid defense, even an obvious one, can nevertheless be routinely investigated, arrested, and even formally accused of a crime.  The obvious unfairness of that is a reason some SYG laws contain additional provisions limiting the criminal justice system’s response.  Some SYG laws contain evidentiary presumptions, grant immunity against criminal prosecution and/or civil suit, or require financial compensation to the wrongfully accused.

States that have a statute governing LEO’s use of force when “on duty” or when deemed to be acting “within the scope of employment” may prevent a LEO’s reliance on the state’s SYG enactment.  An appellate court in Florida has so ruled, holding an LEO to the specific force statute applicable to making an arrest, not the “more lenient” civilian oriented SYG provisions.

Contrary to what is reported in the media, I have seen no SYG law that promotes vigilantism or provides a “license to kill,” nor have I read any that are objectively described as a “make my day” law.     Let’s visit a SYG law to dispel common misconceptions which result in erroneous belief that SYG laws condone murder or unnecessarily promote public confrontations and shootings.

Florida has a catchall SYG statute which provides that when deadly force is authorized, a person may use such force without an obligation to retreat, in defense of self or others, or to stop the “imminent commission” of a “forcible felony.”  Florida has a second iteration of SYG which expands the Castle Doctrine:  “A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”  (Italics are mine.  This language is why threatening words not accompanied by imminent or actual use of physical force will rarely sustain as a SYG response).

Florida also has a narrower SYG statute dealing with unlawful, forcible dwelling and residential structure break-ins and assault or battery to persons in vehicles.  That provision provides legal presumptions which assume the reasonableness of an intended victim’s fear of death or great bodily harm, and the malefactor’s intent to do something illegal involving force or violence.  Despite the presumptions, it is likely courts will hold that even though deadly force is allowed in these situations as a first resort, the right to employ it without regard to the usual rules terminates when the precipitating threat is neutralized.   (This presents complex tactical issues for those who may need to take and hold someone at gunpoint while summoning medical aid and law enforcement).

Florida law also contains provisions addressing the investigation and prosecution of cases where lawful use of defensive force may be implicated.  There is a provision granting “immunity” from criminal prosecution and civil suit for anyone who is determined to have used deadly force in compliance with the law.  (This may be determined in a pre-trial hearing where the defender has the burden of proof.   If the immunity motion is denied, the defense may be presented to the judge or jury at trial in the usual manner).  A related provision bars anyone convicted of a forcible felony from seeking personal injury or property damages suffered while a participant in such a crime.  To dissuade law enforcement from making improper on-scene arrests after an apparent self-defense incident, Florida statutes provide that police may use “standard procedures for investigating the use of force,” but cannot arrest a person for using force unless there is “probable cause that the force that was used was unlawful.”

In addition to barring a SYG-based justification defense to someone not then law-abiding, Florida law also generally disallows it to a person deemed an “aggressor.”  That is a person attempting to commit, committing, or escaping after the commission of a forcible felony, or someone who initially provoked the use of force against himself or herself.  The latter may recover the protection of the SYG provisions if they first exhaust every reasonable means to escape other than the use of deadly force, or in good faith, withdraw from physical contact and clearly communicate a desire to withdraw and terminate the encounter.  This provision seems directed at those engaged in consensual mutual combat where one of the combatants goes beyond the apparent scope of “consent.”

I tried to keep this primer general but nevertheless substantively correct — a difficult task.  I welcome your questions or comments or request for clarification.  Bear in mind an attorney in your state familiar with the nuances of your state’s case law is your best bet for that kind of give and take.

Donec iterum conveniant.

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About Steven Harris

Steve Harris is an experienced attorney (member of Florida Bar, 1979) who has represented federal agents and local LEOs in duty related matters. He has written and lectured about officer involved shootings, self-defense, and use of force law, including "Stand Your Ground." Steve has been a seasoned and active competitive handgun shooter for over 20 years.

2 thoughts on “A PRIMER ON USE OF DEADLY FORCE (PART TWO)

  1. Hey Steve, nice piece, again. BTW, I couldn’t find an email address or link for you here, but did wish to contact you off-line, so I sent a message to Tim and asked that he forward it to you.
    –Andrew, @LawSelfDefense

    • Thanks for your careful reading. I have edited the piece (to insert an intended sentence, and also to reflect your suggested update point).

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