Wednesday, September 12, 2012

Stand Your Ground -- retreat rule may still apply

In the recent case of State v. Hill, 37 Fla. Law. Weekly D1952  (Fla. 4DCA 2012), the Fourth District Court of Appeal rendered an opinion on an interesting aspect of the Stand Your Ground law.  In that case a previously convicted felon defended himself with a handgun he had on his person against an unlawful attack.  The trial judge dismissed the case based on the Stand Your Ground law -- apparently under section 776.013.  The District Court reversed because as a "convicted felon" his possession of the handgun was illegal from the inception, and therefore he could not claim immunity under 776.013 because subsection (3) states there is no "duty to retreat"  under the law where the individual is "not engaged in unlawful activity".  Since Mr. Hill was illegally in possession of a firearm -- he was "engaged in unlawful activity" -- thus,  under 776.013 (at least, according to the Fourth District Court of Appeal) the duty to retreat still existed.

I don't agree --at least not if you consider F.S. 776.012.

Why?

Well . . . 776.032  still says he gets immunity if he complies with ANY  of the subsections of this law, and   776.012  doesn't require retreat if the individual had a reasonable belief that death or great bodily harm was imminent (or to prevent the commission of a forcible felony).   The District Court read all the sections of the law in pari materia -- which means they read them as a whole rather than individually -- and  engrafted the requirements of 776.013(3) on to 776.012.   In my opinion  -- that was totally unjustified.   776.012(2) makes it clear that 776.012 operates independent of 776.013.  Likewise,  776.032 also uses the conjunction "or" such that compliance with any section of the law requires immunity.  The Fourth District's Opinion rewrites the statute, and in my opinion violates Article Five of the Florida Constitution.

Plus,  even if the Fourth District was correct on it's interpretation of the law in this case -- the trial judge seemingly found no option for retreat existed, or alternatively -- did not make a ruling on whether there was an opportunity to retreat.   Thus,  if the Fourth District's ruling were consistant with it's own Opinion  -- the case would have to be remanded for additional factual findings on the retreat issue.   I mean, even under the retreat rule  -- if he can't retreat AND has a reasonable belief that he is in danger of death or great bodily harm (as the trial judge seems to have found) -- the case should still be dismissed.    However, the Fourth District said that immunity was off the table totally due to the unlawful firearm -- whereas -- if they wanted to be consistent with their own Opinion -- they should have remanded the case to the trial judge, and had him determine -- whether the defendant had shown by a "propensity of the evidence" -- that he had no viable avenue of retreat.  If he didn't -- even under the Fourth District's Opinion  --  he was still entitled to a pretrial determination of immunity, and/or dismissal .  CLEARLY -- that's what the statutes say!

And . . . if you want to be very picky -- subsection (3) of the law [F.S. 776.013(3)] has different elements than 776.012.   In 776.013(3) -- you've gotta be "attacked".   You can only meet "force with force".  And, there is no "imminent" requirement.

However,  the warning here is that this case screws up everything in self defense again -- and may require you to follow the old "retreat rule" if you are engaged in any type of unlawful act when you suddenly need to use self defense.   A total crock -- and a total screw up of everything!   Thanks, 4DCA!

postscript:
On April 10, 2013,  the Second District Court of Appeal decided the case of Little v. State, 38 Fla. L. Weekly D790 (Fla. 2DCA 2013), exactly per the  reasoning in this article.   In the Little case a convicted felon carrying a firearm was forced to use a firearm to defend his life.  The circumstances were clear -- and "but for" being a convicted felon -- there was no real question that he had no other choice but to use the firearm if he were to save his life.   The trial court denied his  "Stand Your Ground"  motion -- with the State arguing that because he was unlawfully carrying a gun, he was precluded from having immunity under 776.013.  The Second District rejected this argument, and stated that since Mr. Little did not seek immunity under 776.013 -- but instead,  had sought it under 776.012 -- he was still entitled to immunity if he reasonably believed the use of deadly force "was necessary to prevent  death or great bodily harm".   The District Court of Appeals then "certified" its decision to the Florida Supreme Court because it felt there was a possible conflict with the decision in State v. Hill, supra, that was important enough that the Florida Supreme Court needed to resolve it. 

So . . .  it looks like my record in the book and this blog on appellate court predictions is still ten for ten.  (probably a lot more).