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DOUBLE STANDARDS IN FLORIDA LEGISLATURE: THE INFLUENCE OF DOMESTIC VIOLENCE ON FLORIDA’S SELF DEFENSE LAWS
Janaki Padmakumar
2019 Undergraduate Honors Thesis
University of Florida Department of Criminology and Law
Thesis advisor: Dr. Lonn Lanza Kaduce
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Introduction
In 2005, the Florida Legislature passed a series of amendments to self-defense laws in the state of Florida, which collectively is commonly referred to as the ‘Stand Your Ground Laws’. The Stand Your Ground legislation was incorporated into Chapter 776 of the Florida Statutes on Justifiable Use of Force1. Although the chapter covers both lethal and nonlethal use of force, the focus of this paper is on protections for those arguing the right to use deadly or lethal force while waiving their common law duty to retreat. While this statute provides defending parties with broader self-defense arguments, the Stand Your Ground law fails to adequately protect the demographic which the Florida Legislature relied upon to write Chapter 776. Specifically, Stand Your Ground as it is known today in Florida evolved in the wake of legal precedent created by a series of domestic violence cases, in which battered partners attacked within a shared household by a co-occupant aggressor subsequently retaliated with deadly force to defend themselves, thus expanding the boundaries of pre-existing common law governing the duty to retreat, and the justifiable use of force against a legal co-occupant of a shared dwelling.
The purpose of this paper is to evaluate how the common law provisions regarding the use of lethal force in self-defense including the castle doctrine, were expanded through domestic violence cases prior to Chapter 776 of the Florida Statute, which grants those arguing the right to stand their ground against an assailant immunity from prosecution and civil liability. This paper will also address the barriers created by the current phrasing of the Stand Your Ground law for survivors of domestic violence, specifically how the statutory requirements of reasonable fear of harm, reasonable belief of imminent harm or death, and the necessity of an injunction or pretrial order against co-occupant aggressors exclude victims of domestic violence from stand your ground protections by creating legal barriers. To understand the current Stand Your Ground Laws, it is necessary to briefly review legal developments in self-defense pertaining to retreat, the castle doctrine, and Stand Your Ground over time, as well as consider the law in context of growing awareness and understanding of domestic violence. This will lead
1 For the purposes of this paper, ‘Stand Your Ground’ laws and ‘Chapter 776’ will be used interchangeably to refer to the set of statutes in Chapter 776 of the Florida Statutes. 3 to a discussion of the implications of Stand Your Ground for domestic violence cases involving co-habitants and/or invited guests of defending parties.
Overview of Common Law Self-Defense
Samaha outlines four basic common law components to criminal self-defense2. The first component is nonaggression, meaning that the defending party did not start or provoke the attack. The second requirement is necessity, which requires defenders to only use force or deadly force if they have a reasonable belief that force is needed to repel imminent or immediate harm. The third requirement is proportionality, i.e. that defending parties should not use lethal force unless it is absolutely necessary; they should use nondeadly force first, and not resort to the use of excessive force. The last requirement is that of reasonable belief, which requires defenders to reasonably believe that deadly force is necessary to repel an imminent attack.
The castle doctrine and the Florida Stand Your Ground laws build upon the fundamentals of common law self-defense provisions, but further extends these basic provisions to create protections for persons using defensive force within their homes, which oftentimes covers cases of domestic violence self-defense.
The Castle Doctrine
In the state of Florida, Stand Your Ground refers to a set of statutes which were passed into state legislature in 2005. The purpose of these statutes is to eliminate a persons’ duty to retreat prior to using lethal force if the person is in his/her home, workplace or vehicle3. Stand Your Ground was created by extending the Castle Doctrine, which originated in 13th century English Common Law.
During the 13th century, English jurists discuss two clearly defined categories to differentiate justifiable and excusable homicides. Justifiable homicide at the time was defined the killing of a human being to further “royal justice” and included instances such as executing a
2 Samaha, Joel. “Criminal Law”, 12th ed. (2017) at 166 3 Catalfamo, Christine. "Stand Your Ground: Florida's Castle Doctrine for The Twenty First Century." Rutgers Journal of Law and Public Policy 4, no. 3 (2007): 504-45. HeinOnline. 4 felon or outlaw, or killing a felon resisting capture4. Both instances demonstrate a treasonous act against the crown, and therefore are subjected to royal justice. Excusable homicide was defined as a killing “by misadventure or self-defense”5, meaning that a person who killed another to save his own life would be convicted of murder and sentenced to death, unless he was pardoned by the King. While a pardon from the King resulted in acquittal for excusable homicides, the accused would oftentimes be required to forfeit his chattel and possessions as punishment for taking another life, even if a pardon was granted6. While the categories of justifiable and excusable homicide created clear guidelines for what constituted punishable and pardonable homicide offenses, a third ambiguous category also existed, which was reserved for cases in which a homeowner or landlords killed persons who invaded their household7. This third ambiguous category of killing a home invader was moved to justifiable homicides by the 16th century8 where it forms a foundation for the Castle Doctrine, since it becomes legally permissible for the owner of the house to exercise lethal force against a home invader, even though there are no explicit mentions of a duty to retreat.
However, in the 18th century, the distinction between justifiable homicide and self- defense was changed to differentiate lawful from unlawful killings. Blackstone, argued in Commentaries on the Laws of England (1769) that there were two primary categories of lawful killings, a crime per infortunium and se defendendo9. Blackstone defines per infortinium as a crime that occurs while a man performing a lawful act kills another without the intent to cause harm, i.e. the act itself is lawful and the resulting death is accidental10. However, Blackstone clarifies that if immoderate or disproportionate force is used in performing a lawful act of punishment (such as a parent disciplining a child or an officer punishing a criminal), then the act
4 Epps, Garrett. "Any Which Way But Loose: Interpretive Strategies and Attitudes Toward Violence in the Evolution of the Anglo-American Retreat Rule." Law and Contemporary Problems 55, no. 1 (2013): 303-331. 5 Epps, Garrett. "Any Which Way But Loose” 6 Ibid 7 Ibid 8 Ibid 9 "Blackstone's Commentaries on the Laws of England Book the Fourth - Chapter the Fourteenth: Of Homicide." The Avalon Project - Laws of War: Laws and Customs of War on Land (Hague IV); October 18, 1907. Accessed November 30, 2018. 10 "Blackstone's Commentaries on the Laws of England Book the Fourth - Chapter the Fourteenth: Of Homicide." 5 is criminal11. Se defendendo crimes involve individuals defending themselves from assault in cases of “sudden broil or quarrel” by killing their assailant12. Se defendendo, or self-defense, is differentiated from justifiable homicides to execute the King’s justice because the right to self- defense does not entail the right to attack. Rather, it was justifiable to use lethal force for self- defense if and only if the person had attempted to retreat first. Catalfamo explains that in English common law, the use of self-defense was strictly restricted to cases invoking the necessity doctrine13, meaning that the duty to retreat is paramount. Those invoking the necessity doctrine were legally required to retreat as much as possible, and only after exhausting their ability to retreat could they retaliate with force. Blackstone referred to the ‘chance-medley’ circumstances and argued that, in instances of “mutual quarrel”, the difficulty of determining fault for cases involving a defender and assailant who knew each other outweighed any possible benefits14; therefore, the duty to retreat was paramount.
The defense of habitation doctrine was the only situation exempting individuals from retreating before using lethal force. In this doctrine, a person attacked within their home has the right to use lethal force against their assailant to prevent the commission of a felony within the dwelling15, thus creating a significant difference between using force to protect oneself and protecting one’s home against intrusion or violence. This principle evolved from homes being used as “holds of defense” in times of conflict; if a man barred entry into his fortress, then he had a right to retaliate with force if aggressors attempted to enter16. This evolution of common law which waived the requirement to retreat prior to using lethal force in instances of aggression toward persons in their domicile became the castle doctrine. This understanding of the castle doctrine did not clarify obligations of retreating if cohabitants were aggressors;
11 Ibid 12 Ibid 13 Catalfamo, Christine. "Stand Your Ground: Florida's Castle Doctrine for The Twenty First Century." 14 "Blackstone's Commentaries” The ambiguity of fault and initial aggression is a topic that oftentimes creates difficulty in determining which party is to blame for the use of initial force in situations of domestic violence. 15 Carpenter, Catherine L. "Of the Enemy Within, Castle Doctrine, and Self Defense." Marquette Law Review, 4th ser., 86 (Spring 2003): 654-700. 16Catalfamo, Christine. "Stand Your Ground: Florida's Castle Doctrine for The Twenty First Century." 6 common law only addressed the issue of outsiders intruding upon a dwelling to trigger castle doctrine protections.
However, Blackstone’s analysis on the difficulty of finding fault in situations of mutual quarrel could not be incorporated well into American common law, since 19th century American political culture favored a doctrine of individualism and included the right to violent recourse against the state17. Particularly, in the Midwestern and Southern states, there emerged a culture of the right to defend one’s honor due to the plantation and frontier lifestyle18.The contrast between the urbanized north and agrarian plantation style south resulted in different crime rates as well as different definitions of what constitutes punishable offenses. For example, between the end of the Civil War in 1865 and the end of Reconstruction 1880, there was a “crimson tide” of killing in the south, which resulted in For example, between the end of the Civil War in 1865 and the end of Reconstruction 1880, there was a “crimson tide” of killing in the south, which resulted in approximately 40,000 deaths19.
Evolution of the Castle Doctrine in Federal Common Law
The castle doctrine evolved from British common law in the United States through precedent created in federal courts and state courts. Several federal cases which took place on ‘Indian’ lands determined the expansion of the castle doctrine to allow persons broader rights to use lethal force for defense of property.
The removal of the retreat rule from property which constitutes curtilage was established in Beard v. United States (1895). Curtilage was first defined in United States v. Dunn as the area immediately surrounding a dwelling, which is legally counted as part of the home
17 Ibid 18 Rather than enforcing laws to regulate individual behavior, there was an unwritten code of conduct which mandated equity and honor in these regions, which created a distinct divergence from English common law which the urbanized northern states adhered to. Ibid 19 The homicide rate according to these figures was 4-15 times higher in the south compared to northern states, which emerged from a cultural tendency toward violence for conflict resolution rather than a rural lifestyle. While the killings that occurred during the crimson tide would be classified as cold-blooded murder in the north, the prevailing acceptance of self-defense arguments resulted in more acquittals than convictions for homicide where they occurred in the south. Id at 508 7 for searches and self-defense arguments20. There are four factors to determine whether an object or property is considered curtilage: (1) the proximity to the dwelling, (2) whether the object or property is an enclosure surrounding the home, (3) what the item is used for and (4) what steps the resident took to protect the item from observation or access by people passing by21. In Beard, the defendant shot and killed the deceased Will Jones after a property dispute occurred over the ownership of a cow. The day prior to the shooting, Will Jones publicly threatened to kill Beard and take the cow by force if beard refused to return it to the Jones brothers22. On the day of the incident, the Jones brothers arrived on Beard’s property with Will Jones carrying a concealed weapon on his person and attempted to steal the cow while Beard was away from home23. Mrs. Beard prevented the cow from being stolen, at which time Beard arrived with a shotgun and ordered the Jones brothers to leave his property—Will Jones responded by walking toward Beard angrily and reaching into his pocket to draw his concealed weapon, despite Beard warning him not to come closer24. When it appeared that Jones was drawing a weapon, Beard struck him with the shotgun on the head (without firing the weapon), and Will Jones died as a result of the head injury; Beard argued in court that he struck Jones to disarm him, not kill him25.
The trial court held that Beard “cannot kill a man for bare trespass, that would be murder” and reasoned that Jones brothers were exercising a good faith claim to the cow26. The trial court also stated if Will Jones was acting in dangerously or threateningly, the defendant could “avoid that danger by getting out of the way” since Beard was not inside his dwelling27.
20 Beard v. United States, 158 U.S. 550 (1895) A child named Edward Jones went to live with Beard following his mother’s death and brought a cow with him. Beard allowed Edward to stay at his house with the conditions that Edward could be controlled as “one of his own children” and the cow now belonged to Beard. A few years later, Edward decides to move out of Beard’s home and decided along with his brothers to take the cow with them, despite knowing that Beard would object to them taking his property. Once this decision was made, one of Edward Jones’ older brothers entered Beard’s property with a shot gun and claimed he would remove the cow with or without Beard’s consent. Beard stated that they should contest him in court if they wanted ownership of the cow. 21 Carlson, Mr. David. "Curtilage." LII / Legal Information Institute. March 08, 2015. Accessed November 30, 2018. 22 Beard v. United States, 158 U.S. 550 (1895) 23 Ibid 24 Ibid 25 Ibid 26 Id. at 555 27 Ibid 8
On appeal, the Supreme Court argued that Beard was not under any “greater obligation when on his own premises, near his dwelling-house, to retreat or run away” than he would be if he was attacked within his own home28. Ultimately, the Supreme Court reversed the lower court’s judgement on the basis that the defendant on his own property outside his home had no legal duty to retreat since the deceased “by word and act indicated his purpose to attack the accused”29. Beard did not initiate the fight and if he “believed in good faith that the deceased intended to do him great bodily harm, he was not obligated to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground”30. In Beard, the Supreme Court established a ‘no duty to retreat’ rule in instances of defendants using force within the parameters of their own property.
However, in Allen v. United States (1896), the Supreme Court contradicted the ruling made in Beard which did not necessitate (1) the consideration of whether a person could safely retreat from a confrontation or (2) that a person even had the obligation to retreat when faced with aggression prior to using lethal force. Allen v. United States (Allen I) was initially brought to the Supreme Court in 1893, and his conviction for murder was reversed on the grounds that the jury in this case was erroneously instructed about the defendant’s obligations to judicially assess whether or not force was necessary in a self-defense claim. Specifically, the instruction given in the trial court was that parties claiming self-defense had the obligation of “using the deliberation of a judge”31 when deciding the necessity of force against an aggressor. The Court found that this instruction required the defendant to substitute “abstract conceptions for the
28 The Supreme Court referenced Erwin, citing that “true man without fault…is not obligated to fly from an assailant, who by violence or surprise maliciously seeks to take his life or do him enormous bodily harm”. Therefore, taking a life can only be justified or excused on the grounds of “necessity…and that such necessity must be imminent”, i.e. there must be actual danger at the time a defendant decides to use lethal force, not just fear of the assailant or a potential attack. Id at 561. 29 Id. at 564 30 Ibid 31 Allen v. United States (Allen I) 150 U.S. 551 (1893) Allen was initially convicted for the murder of Philip Henson in the Cherokee Nation in the U.S. Circuit Court for the Western District of Arkansas and sentenced to death. Allen was a 14-year-old African American boy who shot and killed Henson, a white boy aged 18 following an argument that took place on May 12, 1892. There were two conflicting accounts of the story given by Allen, and Henson’s companions who were present during the shooting, with Allen alleging that Henson attacked him with sticks first, while the companions argued that Allen shot Henson without provocation. 9 actual fact”, which is an “abstract and metaphysical instruction” that misleads the jury32 thus reversing the conviction and remanding the case to the trial court for a re-trial.
In Allen II (1895), the Supreme Court heard the appeal for Allen’s case following his second conviction. The Court again determined cause for reversible error per the jury instructions provided. This time, the jury was instructed that sticks and clubs used by the decedent and his companions were not considered deadly weapons, so self-defense considerations were made unavailable to the jury. The Court found these instructions erroneous and cited that “when a fight is actually going on, sticks and clubs may become weapons of a very deadly character”33 , so a self-defense consideration should have been presented to the jury. The Court also noted that the instruction made to the jury during trial implied that using a weapon previously obtained for the purposes of self-defense automatically became grounds to try the defendant for premeditated homicide if the self-defense consideration was not made evident34.
Allen’s case was heard on appeal for a third time in 1896, and this decision by the Supreme Court contradicted the ruling made in Beard regarding non-retreat. In Allen III, the Supreme Court found that “mere provocative words, however aggravating, are not sufficient to reduce a crime from murder to manslaughter”, and indicated that the distinction that existed between Allen and Beard is that the latter did not require Beard to retreat because he was assailed upon in his own premises. However, this is still a distinction from the bright-line non retreat established in Beard which explicitly stated that the defendant had no duty to retreat if he believed in good faith that the deceased intended to cause serious bodily harm or injury35.
32 Id. at 566 33 Allen v. United States (Allen II), 157 U.S. 675 (1895) 34 Allen stated that two days before the shooting, Allen encountered Henson and his accomplices while crossing a creek, at which time Henson stated that he and his accomplices would “kill that nigger” the first chance they got, and that it would be settled on Saturday. This parallels the circumstances in Beard in which Jones publicly threatened to kill Beard. Allen v. United States (Allen III) 164 U.S. 492 (1896) 35 Beard v. United States, 158 U.S. 550 (1895) The context of Allen III should also be considered; the testimony of two White boys were considered to uphold the court’s decision that a duty to retreat existed for Allen (a Black male accused of murder just after emancipation in the South), therefore racial biases within the White male dominated judiciary may have affected exactly how the bright line no retreat ruling in Beard was applied to this case. 10
Catalfamo clarifies that by the 1920s, non-retreat privileges expanded to include situations in which the defendant feared imminent death or severe bodily harm, with this precedent for non-retreat outside the confines of a dwelling being established in Brown v. United States (1921). In Brown, the defendant’s conviction for murder was overturned by the Supreme Court on the grounds that the deceased previously threatened to harm the defendant and had also previously assaulted Brown twice with a knife36. On the day in question, Brown had retreated about twenty to twenty-five feet before retrieving his pistol and shooting Hermis, who was advancing upon Brown with a knife within Brown’s workplace. Given these circumstances, the Court found that “detached reflection cannot be demanded in the presence of an uplifted knife”37 and argued that the duty to retreat existed in a period of English common law that did not recognize the right to self-defense, i.e. the law has evolved since then to accommodate the non-necessity of retreat38.
Development of Castle Doctrine Case Law at the State Level
What follows is a brief overview to show the ways in which state courts dealt with non- retreat, the Castle Doctrine, and lethal force. Though Beard was the first case to create a bright line non-retreat rule at the federal level, cases starting with Haynes, Dixon, and Erwin outlined the interpretation of the castle doctrine, the application of the ‘chance-medley’ analysis and the evaluation of the initial aggressor provoking the use of lethal force prior to requiring the retreat rule39.
36 Brown v. United States, 256 U.S.335 (1921) 37 Brown was assaulted twice with a knife by a man named Hermes. During the third attack, Brown ran to his coat to get his pistol when Hermes pursued him with a knife. Brown shot Hermes four ties and killed him and was initially convicted because of the trial court’s instruction to the jury that Brown had the duty to retreat if he could so safely. Id at 343. 38The element of non-retreat in a public space such as Brown’s workplace is echoed in FL§776.012, which does not require persons to retreat prior to using lethal force if they are not the committing a felony and are legally present at a place they have the right to be at. Ibid 39 Catalfamo, Christine. "Stand Your Ground: Florida's Castle Doctrine for The Twenty First Century." As a matter of principle, most state jurisdictions provided an exception for the use of lethal force in self-defense by incorporating the castle doctrine, despite the fact the castle doctrine did not have standardized or uniform definitions between states. Catalfamo explains that jurisdictions varied on requirements of necessity, proportionality and the definition of what constitutes a “castle” to trigger a defense. 11
The divergence from Blackstone’s retreat first analysis came from precedent established in Haynes v. State in 1855, a case in which the defendant shot his neighbor during an argument about drawing water from the well near Haynes’ property40. The Georgia Supreme Court reversed the lower court’s decision on justifiable homicide and analyzed the case in terms of property rights instead, citing that the jury should have been instructed to assess Haynes’ right to access the well41. Additionally, the Court held that Haynes had no legal obligation to make his safety a secondary concern, since he had no duty to the deceased42.
Twenty-one years after the Haynes decision, a manslaughter conviction was reversed in State v. Dixon by the North Carolina Supreme Court. In Dixon, the defendant shot the deceased after the deceased threatened Dixon with a club after Dixon forcibly removed the deceased from his store by shoving him43. This is a clearer example of Blackstone’s “chance-medley” analysis, since Dixon was the initial aggressor who went over to shove the deceased, and subsequently provoked a retaliation. However, the North Carolina Supreme Court argued that the defendant had rights to stand his ground against an assault within his property, and that the shove was not “rude, angry or insulting enough” to be called assault and trigger Dixon’s duty to retreat44. Since the deceased was about to engage in a felony assault on Dixon’s property, the defendant had the right to stand his ground and use lethal force against the aggressor. In Dixon, the courts began to favor the property rights analysis which favored non- retreat.
An early case that officially removed the ‘chance-medley’ analysis from Ohio’s common law and established the right to ‘stand one’s ground’ without requiring the duty to retreat when confronted by an aggressor is Erwin v. State (1876). In this case, the defendant shot and
40 Haynes v. State, 17 Ga 465 (1855) 41 Haynes was convicted of murder for shooting his neighbor during a fight over drawing water from the well adjacent to Haynes’ home. The well was treated as part of Haynes’ property. The defendant shot and killed his neighbor, James Griggs after Griggs threw stones at Haynes while he was drawing water from the well. Ibid 42 State v. Dixon, 75 NC 275 (1876) 43 Dixon and the deceased were in Dixon’s store, which was also his dwelling-house, when Dixon ordered the deceased and several others to leave his store so that Dixon could attend a baptism. When the order was ignored several times, Dixon shoved the deceased to make him leave, at which time the deceased pulled a club out of his coat to retaliate against Dixon and strike him. Ibid 44 Id at 279 12 killed his Son In Law after an argument concerning the use of a toolshed located between their respective houses, but not in the curtilage of either home45. After the Son In Law threw the defendant’s tools out of the shared shed, Erwin broke open the lock on the shed and entered, which prompted the deceased to approach Erwin with an axe despite Erwin’s warnings to stay back which resulted in Erwin shooting and killing his son in law with a pistol46. Erwin was subsequently charged and convicted of second-degree murder, and the jury was instructed that the defendant could use deadly force to protect himself, given that he used “all means in his power otherwise to save his own life or to prevent the intended harm such as retreating as far as he can, or disabling his adversary without killing him”47. However, the Ohio Supreme Court found that the trial court erred in issuing this instruction and explained that Erwin was not obligated to “fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm”48, thus removing the chance-medley analysis because Erwin’s duty to retreat was assessed after evaluating the confrontation between the “true man” and the unprovoked assailant49.
In the same year, a similar decision regarding the role of the ‘unprovoked assailant’ was reached in Long v. State (1876) in Mississippi. In Long, the Mississippi Supreme Court reversed a murder conviction partly on the grounds that the jury was improperly instructed about the defendant’s obligation to retreat before using deadly force. The Supreme Court found that the lower court erred and should have instructed the jury that self-defense is a “natural right”, for which law only functions to “proscribe rules of caution” regarding its use50. The Court’s opinion
45 Since the toolshed was a shared space and was not in the curtilage of either home, Erwin was not obligated to retreat. Erwin v. State, 29 Ohio St. 186 (1876) 46 Ibid 47 Id at 193 48 The Court reasoned that “the law, out of tenderness for human life and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even save a life, where the assault is provoked”, but goes on to comment that a true man is not obligated to flee from an assailant who attacks him without provocation. Id at 200. 49 The assailant in this case approached Erwin with a weapon after Erwin broke the shed door, therefore doing nothing to directly provoke the deceased. The court’s assessment of the decedent’s actions that caused Erwin to use force became the new standard for self-defense cases, since the duty to retreat was evaluated only after the initial provocation by the deceased was evaluated. Ibid 50 Long v. State, 52 Miss. 23,26 (1876) The Court additionally clarified that a person may “anticipate the attack of his antagonist and justifiably slay him if under all the circumstances of the case, such an attack is necessary to protect himself”. 13 was that Long did not provoke the fight, and was not the initial aggressor, therefore the jury should not have been instructed that Long had an obligation to retreat51.
Also, in 1876, the Indiana Supreme Court ruled in Runyan v. State that a jury instruction requiring the defendant to retreat prior to using lethal force for self-defense in a public space was erroneous and overturned the defendant’s conviction for murder. In Runyan, the defendant was a disabled man without functional use of his right arm, who shot and killed Charles Pressnal after the deceased attacked Runyan during a public fight without any provocation52. The Supreme Court cited that the assault taking place against Runyan is “such a character that reasonably appears to the party assaulted that retreat cannot be made so as to protect his life and person from great bodily injury”53, so the obligation to retreat should not have been required.
Development of Castle Doctrine Case Law in Florida
In the state of Florida, the castle doctrine evolved through common law. The modern castle doctrine referred to in Chapter 776 of the Florida statutes first appeared in Wilson v. State (1892); the Florida Supreme Court outlined the concept of a home as a man’s fortress, rather than equating the castle doctrine with the defense of habitation doctrine54. Then, in Pell v. State (1929), the Florida Supreme Court clarified that a person “who is not the aggressor in a difficulty, and is violently assaulted on his own premises… is not obligated to retreat… but may stand his ground and use such force as may appear to him as a cautious and prudent man to be
51 The Court’s reasoning was that “a man need not avoid danger by flight, but so long as he is in a place where he has the right to be and is not engaged in illegal enterprise, nor the provoker, nor aggressor… he may stand his ground and resist force by a force proportioned to the attack”. Id at 24. The mention of proportionality in this case is also interesting, given that Runyan was disabled and could not use both arms to defend himself as an able bodied man may have been able to in this situation; this raises the question of whether or not a person who is physically weaker than their attacker can ever meet an attack with equally proportional force—in this case, Runyan used lethal force because of his physical inability to meet the aggressor’s force with equal force. 52 Runyan initially obtained his pistol for self-defense after being threatened publicly during an election event; on the night in question, the defendant only shot Pressnal after the deceased struck him several times without Runyan doing anything to provoke an attack. Ibid 53 Id at 83 54 Wilson v. State, 11 So. 556 (Fla. 1892) as cited in Catalfamo, Christine. "Stand Your Ground: Florida's Castle Doctrine for The Twenty First Century." 14 necessary to save his life”55. Interestingly, the series of cases following Wilson and Pell which set the stage for the current Chapter 776 Stand Your Ground Statutes were cases in which persons involved in intimate relationships used lethal force against their romantic partner within a shared space. Several cases including Hedges v. State (1965), Watkins v. State (1967), Conner v. State (1978), and State v. Bobbit (1980) outlined Florida’s consideration of intimate partner violence and domestic violence as the boundaries of the castle doctrine expanded to accommodate cases of non-retreat against an aggressor within the same household56. These cases will be analyzed. They will indicate clear signs of domestic violence which resulted in the abused victim retaliating against the batterer for self-defense57.
Florida Case Law Pertaining to Domestic Violence
The case that first clarified the right to non-retreat against persons who have permission to be in the home was Hedges v. State (1965), in which the Court allowed non-retreat against a person who was invited into the defendant’s home58. Specifically, in this case, the Court upheld Hedges’ right to use lethal force against her romantic partner whom she invited into her home. Hedges shot the man during an altercation (at which time she was also shot), and the aggressor
55 Michelle Jaffe, "Up in Arms over Florida's New Stand Your Ground Law," Nova Law Review 30, no. 1 (Fall 2005): 155-182 56 It should be noted that while the Florida legislature used domestic violence case law as cause to broaden the scope of self-defense to create Stand Your Ground but have failed to address the causes of domestic violence and mitigate future cases. 57 While there is not an exact definition for Domestic Violence, it can be summarized as a series of actions and coercive behaviors that encompass assault, sexual assault, false imprisonment and kidnapping (among other criminalized acts) that occur between individual occupying the same domicile. Some states define Domestic Violence through their statues with specific acts of aggression such as animal cruelty, strangulation, sexual battery or unlawful restraint. Domestic Violence (DV) is generalized to coercive behavior and violence that occurs between members of the same household, not exclusively behavior between intimate partners, which would specifically be referred to as Intimate Partner Violence (IPV). The Department of Justice defines IPV as a pattern of abusive behavior in any relationship used by one partner to “maintain power and control over another intimate partner”, which restricts the definition solely to violence that occurs between intimate partners regardless of the parties occupying the same domicile. Definitions of Domestic Violence. PDF. Washington DC: U.S. Dept. of Health and Human Services, Children's Bureau, 2014 In Florida, Domestic Violence is outlined in statute 741.28 as “any assault, aggravated assault, battery, aggravated battery, sexual assault, stalking, kidnapping, false imprisonment or criminal offense that results in physical death or injury of one family member or household member by another family or household member”. The Florida statute 741.28 does not require that domestic violence occurs between married partners, or for the violence to occur between intimate partners. A defining aspect of domestic violence is the abusive behavior “[placing] the victim in fear of imminent physical harm”, or in some instances, death. "741.28 Domestic Violence; Definitions." Statutes & Constitution: View Statutes: Online Sunshine. December 10, 2018. 58 Catalfamo, Christine. "Stand Your Ground: Florida's Castle Doctrine for The Twenty First Century." 15 died because of a self-inflicted wound59. The Florida Supreme Court found that the jury in Hedges’ case should have been instructed about the non-necessity of retreat during trial to determine if this was a situation of excusable or justifiable homicide60. While there are no explicit mentions of an abuse in Hedges between the defendant and the deceased, there are details indicating a controlling dynamic consistent with abusive behavior displayed in cases of intimate partner violence. Hedges stated that on August 8th, the deceased arrived at her house to end their relationship, and an argument ensued once Hedges refused to be in an exclusive relationship with the deceased, while the deceased continued to have a relationship with his wife61. Hedges went on to testify that the deceased became very angry and returned to the room with a pistol and stated he was going to kill her at which time Hedges tried to grab the pistol, resulting in her and the decedent being shot62.
Two years later, the Florida Supreme Court extended the non-retreat reasoning in Hedges and stated that there is no obligation to retreat when attacked within a shared household. In Watkins v. State (1967), the defense argued non-necessity of retreat after a woman shot and killed her common-law husband after he attacked her within their shared home. The defense alleges that the deceased, Glenn Malone, returned to the shared residence after a night of drinking and acted angrily, cutting Watkins with a kitchen knife and subsequently threatening her with his pistol63. The jury in this case was not instructed to consider the non-necessity of retreat in this case because both parties were residents of the same shared space, therefore each person had “equal authority and control” of the space64. Unlike Hedges, the abusive nature of the relationship is evident because of Malone’s aggressive and dangerous behavior. This translates to unequal control and authority over the shared space since Watkins was clearly in danger of being harmed by her abusive spouse. This situation
59 Hedges v. State, 165 So. 2d 213 (1964). The circumstances leading up to the shooting in Hedges differs from Watkins, Bobbit and Conner. 60 Ibid 61 Ibid 62 It should also be noted that the decedent’s wife stated Hedges planned on shooting and killing her husband if the deceased ended the relationship with Hedges. This was disclosed in a phone call between Hedges and the decedent’s wife. Ibid 63 Watkins v. State, 197 So.2d 312 (1967) 64 Id at 313 16 exemplifies imminent danger that a reasonable person fears, which is outlined in standardized definitions of domestic violence. The trial court ruled that Watkins was entitled to stand her ground because her home was her “ultimate sanctuary”65.
However, the Florida Supreme Court’s opinion on the non-necessity of retreat within the home when confronting another household member changed in Conner v. State (1978). In Conner, the Fourth District Court of Appeal held that “the defense of home instruction” was no longer necessary for the jury to hear in cases where the defendant and the assailant are “legal occupants of the same castle”66. The Court affirmed Annie Conner’s conviction for manslaughter after she shot and killed her mentally ill son within their shared household67. Conner appealed the decision to the Supreme Court but was denied certiorari and her conviction was affirmed. The decision in Conner diverges from precedent set in Hedges and Watkins roughly a decade earlier and essentially stated that the non-retreat privileges of the castle doctrine did not apply if both parties involved had a legal right to be in the same household. Specifically, if the assailant and assailed are both legal occupants of the same “castle’, one occupant cannot eject the other because they have equal rights to the same space, so no special jury instruction was required68. If the castle or defense of home instruction is not needed, then the waiving of retreat does not exist—the implication created here is that Conner should have retreated, hence the affirmation of her conviction. The Court also qualified that expanding the interpretation of the castle doctrine to domestic disputes would make justification of homicides easier; for homicide cases involving family members in the same domicile, standard self-defense arguments were enough69.
Then, a decade later in State v. Bobbitt (1980), the First District Court of Appeals rejected the reasoning set forth in Conner and reversed the trial court’s conviction of manslaughter for excluding the castle doctrine in jury instructions70. However, the Florida
65 Ibid 66 Conner v. State, 361 So. 2d 774 (1978) 67 Ibid 68 Ibid 69 The standard self-defense argument entails reasonable fear of imminent harm, the duty to retreat, and response to the threat or force with equal and proportionate force.Ibid 70 State v. Bobbit, 414 So. 2nd 724 (1982) 17
Supreme Court heard the case on appeal and affirmed the trial court’s decision on the grounds that the castle doctrine entitled individuals to protect their homes from invaders, not from co- occupants71. The significance of Bobbitt is the Court’s affirmation of the rationale used in Conner despite the clearly dangerous circumstances that suggest imminent risk of death or injury, and an inability to retreat. Bobbitt alleges that her abusive husband was shot and killed after he pushed Bobbitt to the floor and hit her face and legs to injure her. Bobbitt managed to escape, and retrieved a gun from her pocketbook, subsequently shooting the defendant after he came toward her from roughly 6 feet away72. Both Bobbitt’s daughter and her neighbors testified to the routine abuse the deceased inflicted on Bobbitt, and even recalled an instance where the deceased chased Bobbitt with a hammer to try and kill her73. The ruling in Bobbitt directly contradicted Hedges, and the decision is met with backlash because of an ‘arbitrary distinction’ based on property rights, since Hedges established non-retreat within the shared home, while Bobbitt asserted that the castle doctrine cannot apply to legal residents of the same home.
Despite the majority opinion to affirm a rationale consistent with Conner, Justice Overton wrote a dissent to accounting for the arbitrary property rights issue created by the conflicting interpretations in Hedges and Bobbit, because of the similarity between the two cases74. Hedges was allowed the non-necessity of retreat after killing an intimate partner she invited to her home, yet Bobbitt was denied non-retreat in an almost identical situation against a husband who was clearly dangerous and abusive. Overton suggested creating a distinction between non-retreat against intruders and co-occupants and creating a limited necessity to retreat for the latter. Overton’s argument was premised on the fact that a person’s home is a place where they should be free from attack, not just a place where they are free from invasion.
71 Ibid 72 Ibid 73 Ibid 74 Regarding the issue of shared property, Overton argued for the creation of an additional jury instruction for cases of self-defense against a co-occupant when faced with imminent bodily harm or death; specifically the instruction should require that the defendant has a duty to retreat to a reasonable extent, but is not obligated to flee the home, and has the right to stand their ground and meet force with force, even to the extent that the force used is lethal or could cause great bodily harm to the co-occupant aggressor. Ibid 18
The issue of non-retreat in co-occupant justifiable homicides changed again about twenty years later in Weiand v. State (1999) in which Katherine Weiand was charged with first degree murder after she shot and killed her husband after a violent argument in their apartment75. At trial, Weiand claimed self-defense and argued that her battered woman syndrome76 was a mitigating factor. In the course of their three-year relationship, the defendant was battered and strangled by her husband and threatened with death several times if she ever tried to leave. The defense asserted that Weiand had no choice but to use lethal force to defend herself because leaving would escalate the dangerousness of the situation77, and there was little option for her to retreat given that she had just given birth, then strangled and paralyzed by fear because of prior experiences of violence78. Upon appeal to the Florida Supreme Court, the decision made in Bobbit was overturned and Overton’s dissent was adopted for the ruling in Weiland on the grounds that (i) the Court disagreed with the now minority view on property law and the right to possess the same space, and (ii) the Court had more knowledge about the dynamics of intimate partner violence and had reason to implement policies that do not mandate retreating prior to using lethal force79.
Douglas Orr noted that the Florida Supreme Court’s two primary concerns in Weiand were to address the retreat rule’s reinforcement of domestic violence myths, specifically the myth that women may leave abusive relationships whenever they choose, and to reflect new
75 Weiand v. State, 732 So. 2nd 144 (1999) 76 Jackson, Brandi L. "No Ground on Which to Stand: Revise Stand Your Ground Laws So Survivors of Domestic Violence Are No Longer Incarcerated for Defending Their Lives." Berkeley Journal of Gender, Law & Justice 30 (2015): 154-81. Lawton Chiles Legal Information Center. The term “battered women’s syndrome” was coined by Lenore Walker in 1979 in The Battered Woman, which detailed women’s’ refusal to leave abusive relationships as “learned helplessness” after exposure to repeated instances of unpredictable, violent battery. Walker defines “learned helplessness” as a battered person’s unwillingness to resist or react against violence because of the repeated unpredictable acts of violence inflicted against them. Women who experience repeated uncontrollable and unpredictable instances of battering learn to be complacent rather than reactive because there is no way to predict when the next act of aggression will occur. 77 The Court noted that the requirement to retreat for victims of abuse increases the dangerousness of the situation; separation is one of the most dangerous times in the relationship for victims of domestic violence because the risk of violence or death increases exponentially when the abuser is faced with the threat of separation or loss of control—violence escalates to ensure compliance. 78 Ibid 79 The Court clarified that creating a duty to retreat from a residence when resorting to use deadly force damages cases for victims of domestic violence and expecting a battered woman to retreat when she is the target of “unilateral, unprovoked attacks” in her own household is “inherently unfair”. Id at 1053. 19 policy initiatives regarding domestic violence in the judiciary. There were two major policy initiatives which impacted the Court’s assessment of Weiand on appeal—the Violence Against Women Act (VAWA) 1994 which mandated that spousal abuse is a crime in all 50 states, and the initiatives taken in Florida specifically regarding the prevention and reduction of domestic violence80.
Battered Women’s Syndrome and the Affirmative Defense to Homicide
In cases of women murdering their intimate partners such as Weiand or Bobbit, domestic violence or intimate partner violence is usually a causal factor81. For arguments of justifiable or excusable homicide, juries are mandated to apply a ‘reasonable person’ standard to determine if there is a justifiable use of lethal force. It is important to understand that the trier of fact in civil and criminal cases, whether that be the judge in a bench trial or the jury in a jury trial, is the entity who decides whether or not the fear a battered person experiences is ‘reasonable fear’; i.e. the perspective of the battered person is not what determines this objective standard. Oftentimes, when juries assess cases of survivors killing their abusive partners, the issues of retreat and reasonable fear of danger are scrutinized because of the death of abusers at the hands of their battered partners. The most scrutinized aspect (by both juries and judicial triers of fact) is a woman’s unwillingness to leave an abusive relationship82, which constitutes retreating prior to using lethal force. However, juries and triers of fact are
80 Orr, Douglass A. "Weiand v. State and Battered Spouse Syndrome: The Toothless Tigress Can Now Roar." Florida Bar Journal74, no. 6 (June 2000). Specific policy initiatives taken in Florida included the creation of 20 domestic violence task forces and initiatives to educate county and circuit judges about the nature of domestic violence. 81 Paradis, Cheryl. "Assessment of Intimate Partner Violence and the Battered Woman Syndrome." Psychiatric Annals 47, no. 12 (2017): 593-97. doi:10.3928/00485713-20171107-01. 82 Jackson, Brandi L. "No Ground on Which to Stand: Revise Stand Your Ground Laws So Survivors of Domestic Violence Are No Longer Incarcerated for Defending Their Lives." Berkeley Journal of Gender, Law & Justice 30 (2015): 154-81. Lawton Chiles Legal Information Center. Jackson notes that juries believe that reasonable people leave situations of abuse willingly; however, this disregards the reality of domestic violence, because abused persons cannot simply leave without endangering themselves further. 20 non-experts in the field of domestic violence, and cannot accurately assess the social, economic and cultural circumstances which preclude survivors from leaving their abuser83.
Following the second wave feminist movement, the judiciary allows expert witnesses specializing in mental health to testify about the experience and mindset of women in abusive relationships, specifically how repeated exposure to domestic violence impacts women who are victimized84. The phrase to define the collective symptoms of PTSD and depression afflicting domestic violence victims became “battered women’s syndrome”85, which grew to be recognized as a mitigating factor in cases of homicide to find that an abused defendant acted in self-defense. The term “battered women’s syndrome” was coined by Lenore Walker in 1979 in The Battered Woman, which detailed women’s’ refusal to leave abusive relationships as “learned helplessness” after exposure to repeated instances of unpredictable, violent battery86. Walker’s learned helplessness theory is proffered as a very simplistic reason to explain why battered women refuse to leave their abusive partner and end the violence. However, learned helplessness oversimplifies the nature of abuse, and characterizes battered women as damsels in distress while diminishing the active role of abusers in perpetuating violence, rather than recognizing that each individual’s circumstances and reactions to abusive behavior are
83 These myriad circumstances can include disability, being undocumented, financial dependence on the abuser, cultural prevalence and acceptability of domestic violence, or access to basic resources such as transportation or a phone. According to the National Coalition Against Domestic Violence, more than ten million men and women are victims of DV in the United States alone, with a victimization rate of twenty people per minute. The lifetime prevalence of domestic violence in instances of male to female partner abuse is estimated to be fourteen to fifty percent. 1 in 4 women and 1 in 9 men will become victims of severe IPV, sexual violence by their intimate partner, stalking, or experience consequences such as PTSD, extreme fear, and contraction of STDs. 1 in 4 women and 1 in 7 men who are victims of DV will experience severe physical violence such as burning, beating or strangulation. The population at highest risk of victimization are women aged 18 to 24. Additionally, 94 percent of the victims of a murder suicide are female, and the risk of a domestic violence situation escalating to homicide increase five hundred times if a firearm is involved. There is also a risk that these numbers estimating the prevalence of DV are under representative of the reality of the situation because of victims’ reluctance to report due to fear, shame, or inability to access help and report domestic violence. "NCADV: National Coalition Against Domestic Violence." The Nation's Leading Grassroots Voice on Domestic Violence. Accessed July 08, 2019. https://ncadv.org/statistics. 84 Rivers-Schutte, Noel. "History of the Battered Woman Syndrome- a Fallen Attempt to Redefine the Reasonable Person Standard in Domestic Violence Cases." Law School Student Scholarship, 2013. 85 Jackson, Brandi L. "No Ground on Which to Stand”. 86 Walker defines “learned helplessness” as a battered person’s unwillingness to resist or react against violence because of the repeated unpredictable acts of violence inflicted against them. Women who experience repeated uncontrollable and unpredictable instances of battering learn to be complacent rather than reactive because there is no way to predict when the next act of aggression will occur. Id at 164 21 different87. Furthermore, the assumption that ‘reasonable people’ simply leave their abusers grossly ignores the reality of domestic violence; there is a 75% increased likelihood of death if an abused woman tries to leave her batterer88. Forty-five of female homicide victims are killed while separating from their abuser, and separation from abusers is a known risk factor for homicides even in relationships which were not previously physically abusive89.
Florida Stand Your Ground Legislation and Implications for DV Cases
To explain the inconsistency between Florida’s legal precedent favoring the expansion of self-defense protections for domestic violence victims, and the legislation which backtracked from evolving policy and understanding of domestic violence, the provisions governing the use of lethal force in Chapter 776 of the Florida Statutes need to be addressed. To understand the regression in policy regarding domestic violence, §776.01290 and §776.01391 will be compared
87 Feminist theories of crime argue that domestic violence occurs because of the expression and consequence of patriarchal power structures that give men responsibility for control and management of their female partners, children and family members. Specifically, domestic violence is an issue created by patriarchal social structuring rather than the actions of individual men. The author bell hooks argues that the term domestic violence should be replaced with patriarchal violence, since this term encompasses the acceptability of powerful individuals within the family to exert power and control over the less powerful members of the family through violence. hooks additionally explains that a paradigm shift toward the use of “patriarchal violence” is necessary because the perpetration of violence by female abusers toward their children and/or less powerful members of their household remains unaddressed in typical descriptions of domestic violence. Furthermore, the use of “domestic violence” mitigates the brutal reality of the violence experienced by survivors because of the connotations of privacy and “softness” associated with this term. hooks, bell. "Ending Violence." In Feminism Is for Everybody, 61-66. Cambridge, MA: South End Press, 2000. The notion of patriarchal social structuring explains why domestic violence is a universal phenomenon that is not restricted to any society or culture. However, it is not excusing the actions that individual perpetrators of domestic violence choose to take, because perpetration is ultimately an individual decision. 88 Jackson, Brandi L. "No Ground on Which to Stand”. 89 Ibid 90 "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 776.012 Use or threatened use of force in defense of person.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection 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.
22 to highlight how the language of the statute grants broad blanket protections to those asserting the right to ‘stand their ground’ outside the home, while leaving victims of abuse more defenseless in their own households.
91 "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 776.013 Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm.— (1) A person who is in a dwelling or residence in which the person has a right to be has no duty to retreat and has the right to stand his or her ground and use or threaten to use: (a) Nondeadly force against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force; or (b) Deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. (2) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using or threatening to use defensive force that is intended or likely to cause death or great bodily harm to another if: (a) The person against whom the defensive force was used or threatened was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and (b) The person who uses or threatens to use defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. (3) The presumption set forth in subsection (2) does not apply if: (a) The person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or (b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used or threatened; or (c) The person who uses or threatens to use defensive force is engaged in a criminal activity or is using the dwelling, residence, or occupied vehicle to further a criminal activity; or (d) The person against whom the defensive force is used or threatened is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer. (4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. (5) As used in this section, the term: (a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night. (b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. (c) “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
23
It should be noted that §776.012 is a general self-defense law that allows individuals the right to stand their ground without the obligation to retreat outside of their residence, dwelling or vehicle, so long as they are legally present at the location and are not engaged in a felony, while §776.013 refers to the conditions that must be satisfied if a person affirmatively chooses to stand their ground within their dwelling, residence or vehicle. According to the provisions established in 776.012 and 776.013 of the Florida Statutes, Florida’s Stand Your Ground self-defense laws diverge from the requirements of traditional criminal self-defense and the castle doctrine in several distinct ways.
First, §776.012 and §776.013 remove the common law duty to retreat prior to using or threatening force, or lethal force—a direct divergence from common law self-defense, which only permits the threat or use of force if absolutely necessary, i.e. the necessity doctrine. The retreat rule is implicit in the doctrine of necessity, because force or the threat of force is available as a last resort option, and defenders are obligated to retreat first. §776.012 legally permits persons outside their household or dwelling to use force or lethal force in self-defense while completely waiving the obligation to retreat first, so long as the criteria set forth in §776.012 (1), covering nonlethal defensive force and §776.012(2) addressing lethal force are met. Specifically, §776.012(2) states that a person is justified in “using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm… or to prevent the commission of a forcible felony”92. A person using defensive force while meeting the requirements of this subsection “does not have the duty to retreat and has the right to stand their ground” so long as they are not committing a felony and are legally present at a place they have the right to be at93. These protections, however, become more complicated in dwellings, residences and vehicles.
The second divergence created in §776.013 is the expansion of the castle doctrine include a person’s residence94, their dwelling95 and their vehicle96. §776.013 pertains to Stand
92 §776.012(2) "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. April 15, 2019. 93 "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. April 15, 2019. 94§776.013(5)(a) "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 24
Your Ground protections within a person’s dwelling, residence or vehicle in instances of forcible entry, forcible felony, or the fear of imminent bodily injury or death to oneself or a co- occupant, where a defender is not obligated to retreat first and may threaten to use, or use deadly force. The protection under 776.013 is triggered by the reasonable fear standard, which requires that the person using force or lethal force reasonably believes the following:
(i) The person whom defensive force was used against was unlawfully and forcefully entering, or had entered the defending party’s dwelling, residence or vehicle (ii) The person whom defensive force was used against was attempting to remove another person from the dwelling, residence or vehicle (iii) And that the person using, or threatening force or deadly force reasonably believed that an illegal and forceful entry or forcible felony had occurred or was imminently about to occur.
Note that these three Stand Your Ground provisions anticipate an outside party, i.e. an invader, interloper or kidnapper forcibly entering or infringing upon the protected areas rather than a person with equal rights to the same space. In other words, the provisions do not account for most circumstances of domestic violence in which the aggressor is often a co-habitant or guest invited into a dwelling, residence or vehicle.
Chapter 776 also provides protections specifically for self-defense for property while waiving the right to retreat. §776.031 allows (i)individuals to use or threaten force, except deadly force when “to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate
Dwelling in this context refers to a “building or conveyance of any kind including any attached porch”, regardless of whether the building or conveyance is “permanent or temporary, mobile or immobile, which has a roof over it, including a tent and is designed to be occupied by people lodging therein at night” 95“Residence means a dwelling in which a person resides either temporarily or permanently, or is visiting as an invited guest” Id. 96 Vehicle refers to “a conveyance of any kind, whether or not motorized, which is designed to transport people or property” Id. 25 family or household or of a person whose property he or she has a legal duty to protect”97. §776.031 (ii) then allows for the use of lethal force in defense of property when “such conduct is necessary to prevent the imminent commission of a forcible felony” and waives the duty to retreat “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”98. Note that the extension of Stand Your ground to property defense scenarios raises situations which can be interpreted through Blackstone’s chance-medley analysis. Florida’s defense of property law includes “personal property”, which are the kinds of possessions that are prominently figured in domestic tensions—seemingly, the provision can fuel “mutual quarrels” and allow it to escalate to ‘justifiable’ use of force, which makes it difficult to identify the initial aggressor, and determine if the force used was reasonable when the quarrel escalated.
In addition, §776.03299 grants immunity from criminal prosecution and civil liability to those arguing the right to stand their ground, so long as the use of force or lethal force
97 §776.031(1) "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 776.031 Use or threatened use of force in defense of property.— (1) A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force. (2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection 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.
98 §776.031(2) "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 99 "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.— (1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant. 26 occurred within the parameters established by §776.012 and §776.013. This is a complete departure from traditional common law self-defense, in which the law required individuals to remove themselves from dangerous situations and retreat as much as reasonably possible before resorting to force that is proportional to the act of aggression.
Stand Your Ground was created with the intention of protecting individuals from violence or aggression within their own living space, and allows defending parties to retaliate with force, or lethal force if there is reasonable belief of imminent harm. However, there are two fundamental conflicts when the statute is interpreted as written and applied to the target demographic of domestic violence survivors that the case law evolved to protect100. First, in order for a Stand Your Ground defense to be enacted, and for an individual to be immune from criminal prosecution, reasonable fear of harm and the reasonable belief of imminent bodily injury or death must be apparent to trigger the protection101. Second, the statute only prohibits the use of force or lethal force against a co-occupant or owner of the dwelling,
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful. (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1). (4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
100 Several cases including Hedges v. State (1965), Watkins v. State (1967), Conner v. State (1978), and State v. Bobbit (1980) outlined Florida’s consideration of intimate partner violence and domestic violence as the boundaries of the castle doctrine expanded to accommodate cases of non-retreat against an aggressor within the same household. 101 Orr explains that the traditional self-defense argument had three prongs- reasonable belief of imminent harm, proportional use of force to the harm threatened, and finally the duty to retreat to the extent reasonably possible. However, the issue of proportionality and imminent harm is difficult to incorporate into cases of domestic violence because these two terms are both standards used to assess a traditional confrontation between two men in combat, which was the historic purpose of ‘stand your ground’. Orr argues that a feminist analysis should be applied to self-defense because of the proportionality concern—the majority of batterers are male, and the victims of their abuse are female. When attacked by a male batterer, women are generally unable to respond proportionately to the harm inflicted; 25% of men who murdered their female partners used only their fists to kill while 100 women surveyed all used a weapon, poison or contract killer to kill their abuser. Orr, Douglass A. "Weiand v. State and Battered Spouse Syndrome: The Toothless Tigress Can Now Roar." Not only does Chapter 776 require injunctions for battered persons arguing self-defense within the home, it also does not address the issue of proportional force when persons of unequal strength are the aggressor and defending party. 27 residence or vehicle unless the defending party has an injunction or pretrial order of protection in place against the co-occupant aggressor. Specifically, §776.013(3)(a) clarifies that defensive force cannot be used or threatened against a person who “has a right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee or titleholder” unless there is explicitly an injunction for protection from domestic violence, or a pretrial order prohibiting contact with another resident of the dwelling102.
One last feature of Florida’s Stand Your Ground Law complicates how the provisions apply and may be especially inadequate for dealing with the complexities of domestic violence. Florida’s stand your ground laws are not available to the aggressor according to §776.041.103 The prospects in domestic violence clearly reflect Blackstone’s concerns regarding the chance medley and the problems of discerning who the initial aggressor is in mutual quarrels that escalate. What is the line between the kind of initial provocation by the person against whom lethal defensive force that is authorized from that which is not authorized? During an escalation, what kind of “withdrawal” is required so that the use of lethal force is authorized by someone who may have initiated the quarrel or violent exchange?
As written, the protections given by the Stand Your Ground statutes are extremely broad, perhaps even ambiguous when certain statutes are applied to cases of self-defense. For example, if the language of §776.012 is compared to §776.013, a person outside of their home would be able to use lethal force to defend against an abuser and stand their ground if the abuser were to threaten or aggress upon the victim outside of their shared household; if
102 "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. April 15, 2019. 103 "Chapter 776 Justifiable Use of Force." Statutes & Constitution: Online Sunshine. 776.041 Use or threatened use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who: (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or (2) Initially provokes the use or threatened use of force against himself or herself, unless: (a) Such force or threat of force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use or threatened use of force which is likely to cause death or great bodily harm to the assailant; or (b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use or threatened use of force, but the assailant continues or resumes the use or threatened use of force.
28 attacked in the house, the victim would need an injunction to receive the same protection104. Furthermore, if defense of property laws (§776.031) is considered hypothetically, an abuser could easily kill a victim and argue the right to stand their ground if the abuser is the property owner and the victim is committing what the statue broadly defines as a ‘forcible felony’105. This also raises doubts regarding who the initial aggressor in an abusive relationship is; if the victim has a delayed reaction to an act of violence that the abuser perpetrated in the past, and decides to use deadly force against the abuser, it raises the question of whether the victim using lethal force or the abuser is the initial aggressor. The language of the statute does not sufficiently accommodate the complexity that surrounds domestic violence and the repeated acts of aggression by abusers; to an extent, the phrasing of the statute favors abusers by allowing them to manipulate a victim’s actions of self-defense into a case of initial aggression against the abuser that prompts justified retaliation.
Reasonable Belief, Reasonable Fear, Battered Women’s Syndrome and Self Defense
The effect of longitudinal trauma in instances of abusive relationships negates the applicability of a ‘reasonable person’ standard because the circumstances of gaslighting106, disempowerment, minimization and blame that a battered person lives in distorts their reality.
104 Consider a situation in which a batterer and a victim are at a bar and begin arguing, at which time the batterer becomes physically aggressive and threatens to kill the victim—hypothetically, 776.012 would allow the victim to stand their ground against the abuser within the public space and authorizes the use of deadly force if the victim believed that an attack was imminent. If the abuser made the same threats or acts of aggression toward the victim when they are in a shared household, the victim does not have the right to stand their ground within their own domicile unless a pretrial order or injunction for domestic violence exists against the batterer. 105 The broader definition of forcible felony is “any other felony which involves the use or threat of physical force or violence against any individual” in addition to specific acts such as murder, treason, carjacking, robbery, burglary kidnapping, aggravated battery etc. §776.08 "Chapter 776 Justifiable Use of Force." Burglary is defined in §810.02 as “entering a dwelling, structure or conveyance with the intent to commit an offense therein unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain”; by this definition , a battered person who is ejected from a shared home by the property owning abuser could become the target of the abuser ‘standing their ground’ if the battered person enters the previously shared domicile to take back their possessions, or damage the batterer’s property in retaliation to being abused. Technically under the language of §776.031, a batterer would be within their rights to stand their ground and use lethal force and be immune from prosecution or civil actions because the other party is committing a ‘forcible felony’. 106 “Gaslighting is a tactic in which a person or entity, in order to gain more power, makes a victim question their reality.” Starkus, Stephanie A. “11 Warning Signs of Gaslighting,” Psychology Today. Retrieved on 7/23/19 from www.psychologytoday.com/us/blog/here-there-and-everywhere/201701/11-warning-signs-gaslighting.
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These processes in domestic violence are not well anticipated by self-defense laws and Stand Your Ground.
The standards of ‘imminent’ and ‘reasonable’ fear were developed in traditional common law to explain situations of combat between men who are of roughly equal size and strength, who have the capability to meet acts of aggression with commensurate force. In a case of domestic violence, these two components of common law self-defense are completely distorted because of the longitudinal effects of trauma. Survivors of domestic violence experience profound physical and psychological consequences ranging from chronic pain to permanent disability as a result of the abuse they experience. The likelihood of adverse health outcomes for women increases substantially if they are involved in an abusive relationship because they are exposed to more risk of injury, denied access to care, or are even killed as a result of abuse107. Physical consequences include traumatic brain injury, injuries as a result of strangulation, increased risk of STD contraction, and poor maternal health during pregnancy108. Roughly 31 to 84% of battered women oftentimes manifest symptoms consistent with major PTSD as outlined in the Diagnostic and Statistical Manual of Mental Disorders, while multiple victimization experiences such as child sex abuse or child abuse increased the likelihood that a battered woman would experience severe PTSD109. Jones et al. noted that the severity of psychological trauma inflicted by DV is comparable to experiences of physical violence because of the range of adverse outcomes such as chronic fear, hypervigilance, inability to concentrate,
107 Plichta, Stacey B. "Intimate Partner Violence and Physical Health Consequences." Journal of Interpersonal Violence19, no. 11 (2004): 1296-323. doi:10.1177/0886260504269685. 108 Plichta, Stacey B. "Intimate Partner Violence and Physical Health Consequences." A study of 51 IPV victims reported that 30% of the participants experienced a loss of consciousness, and 67% experienced symptoms consistent with traumatic brain injury. Jackson et al. report that the symptoms associated with traumatic brain injury have a dose response relationship to the severity and frequency of head injuries as a result of abuse, i.e. as the frequency of injury increases, the symptoms of traumatic brain injuries also increases. Reports on strangulation suggest that around 68% of abused women in shelters have been strangled by their intimate partners, with an average of 5.3 instances of strangulation per woman. The injuries caused by strangulation include problems swallowing, difficulty speaking, pain, dizziness, paralysis, headaches and memories; as the instances of strangulation increased, the severity of symptoms also increased. As violence exposure increases during pregnancy, preterm labor, hospitalizations while pregnant, low birth weight and spontaneous abortions increase. 109 Jones, Loring, Margaret Hughes, and Ulrike Unterstaller. "Post-Traumatic Stress Disorder (PTSD) in Victims of Domestic Violence." Trauma, Violence, & Abuse2, no. 2 (2001): 99-119. doi:10.1177/1524838001002002001. 30 irritability, constant physiological arousal and instances of psychological numbing and dissociation110.
When survivors of abuse live in chronically dangerous environments which are violent and unpredictable, there is no way to distinguish a batterer’s simple threat of violence from a threat that may become action. Ultimately, the diminishment that battered persons experience forces them to think through a lens that the batterer constructs solely for survival, because it allows them to anticipate acts of violence or aggression from their abuser. As Paradis explains, homicides involving female killers often occur within the context of domestic violence; while the abused person who kills may experience distorted thinking because of their experiences, their fears are realistic111. Jackson extends the notion of realistic fear by arguing that a “reasonable presumption of fear standard”112 should be applied to stand your ground defenses for cases of domestic violence. Creating a reasonable fear standard allows the jury to determine whether a battered defendant, given the circumstances of their unpredictable and dangerous situation of domestic violence, had sufficient cause to fear imminent injury or death. Additionally, given the context of a chronically violent relationship, it can be difficult for victims of battering to distinguish a an abuser’s mere threat from a threat that could turn in to a deadly situation; when in a constant state of fear and hypervigilance, threats made by a batterer are considered imminent and credible to the threatened party.
Barriers in Obtaining Domestic Violence Injunctions
Per the requirements of §776.013(3)(a), parties arguing self-defense against a co- occupant aggressor who “has a right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee or titleholder” can only do so if there is a pretrial order or injunction for protection against domestic violence prohibiting the co-occupant aggressor from having contact with their victim. However, this requirement for the existence of an injunction in cases of self-defense diverges from meaningful policy measures and legal precedent set by
110 The three major PTSD symptom categories resulting from exposure to severe trauma are (1) reexperiencing trauma through nightmares and flashbacks, (2) avoidance and numbing behavior to avoid stimuli related to trauma and (3) hyperarousal, which presents through chronic irritability, hypervigilance and sleeplessness. Ibid 111 Paradis, Cheryl. "Assessment of Intimate Partner Violence and the Battered Woman Syndrome.". 112 Jackson, Brandi L. "No Ground on Which to Stand”. 31
Florida’s courts prior to the creation of the 2005 Stand Your Ground laws. Specifically, the trend in case law up to Weiand indicated that the Courts had an evolving understanding of domestic violence, the impact of trauma on battered persons, and the circumstances that should be considered when a survivor of domestic violence uses defensive force against an abuser. This understanding is reflected in legislative efforts intended to make injunctions more accessible and obtainable to victims of domestic violence.
§741.30 of the Florida Statutes outlines the process of obtaining an injunction, the requirements to grant an injunction, and the obligations of the Clerk of Court in assisting petitioners filing injunctions against their batterers. The statute has taken the following several measures (among others) to improve accessibility of injunctions to pro se petitioners113. Specifically, the statute requires the Clerk of Court to perform the following duties114:
a. assist petitioners in obtaining their injunctions b. Provide simplified petition forms c. Protect the petitioner’s privacy to a reasonable extent d. Provide petitioners with informational brochures to domestic violence centers and resources e. Provide the petitioner with a minimum of two certified copies of the injunction, one of which is serviceable to the respondent
The statute also permits the injunction to be filed in any court of the Judicial Circuit in which the domestic violence incidence occurred, where the respondent resides, or where the petitioner temporarily or permanently resides115, and also does not require that the petitioner and respondent live together when the injunction is filed. These measures remove barriers for petitioners who may be financially dependent on their abuser, simplifies a complicated legal process to a petition understandable to a layperson, and consider the petitioner’s safety when
113 These measures include Not requiring that the petitioner and respondent are married or related biologically; the statute allows any person described as family or household members to file an injunction for domestic violence(§741.30(1)(e)), Not requiring that either the petitioner or respondent is represented by an attorney (§741.30(1)(f)), prohibiting the award of attorney fees in any domestic violence related proceeding (§741.30(1)(g)), Prohibiting the courts from requiring bonds to enter injunctions (§741.30(2)(b)) among others. 114 See §741.30(2)(c)(1-8) 115 The statute does not have a minimum residency requirement either. §741.30(1)(k) 32 filing the injunction. However, there are still significant barriers that prevent many victims of domestic violence from either filing an injunction, or from receiving a final permanent injunction after filing a temporary ex parte injunction.
If a petitioner is illiterate, or has low functioning literacy, the availability of a simplified petition is irrelevant—the petitioner remains unable to provide their own statement and instead must rely upon a representative of the Clerk of Court to fill the petition on their behalf. This raises the issue of re-traumatization; describing (therefore reliving) traumatic experiences is already a difficult process for a person filing their own petition. Describing the abuse in detail to a stranger is even more traumatic and can dissuade victims from obtaining injunctive relief. Transportation to and from the Clerk of Court can also be a barrier, particularly if the petitioner is isolated, lives in a rural area, or lacks access to a vehicle or public transportation to reach the courthouse without alerting the batterer. This process is further complicated if the petitioner has a disability or chronic illness precluding them from traveling alone. If the petitioner is an undocumented immigrant, they may not seek injunctive relief due to fear of deportation or loss of custody over their children. Petitioners are only able to file injunctions during business days, during normal work hours—if the petitioner has to be at work and cannot afford to take time off to file their injunction, that is also a barrier. The use of GPS tracking or any other location monitoring software to control the petitioner is also a significant barrier that can compromise the petitioner’s safety if they leave an area under the batterer’s control to obtain an injunction116.
Ultimately, even if the petitioner is able to arrive at the courthouse and file a petition, discretion to grant the injunction lies with the trier of fact. To grant an ex parte temporary injunction117, the judge must be convinced by a preponderance of the evidence that the petitioner is in immediate and present danger of domestic violence, which is an inherently subjective process. A permanent injunction may be granted by the court if it finds that the petitioner was either the victim of domestic violence per the requirements of §741.28, or that
116 The information regarding barriers to a survivor of domestic violence obtaining an injunction comes from the author’s firsthand work experience as a practitioner in victim advocacy and domestic violence. 117 The ex parte injunction, if granted is effective up to 15 days, and a full hearing will be set to determine whether a final injunction should be granted. 741.30(5)(c). 33 the petitioner has “reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court may grant such relief as the court deems proper”118.
The process of separation from an abuser, i.e. obtaining an injunction is the most dangerous time for a survivor of domestic violence. Case law in Florida up until Weiand has reflected this understanding of the dangerousness of domestic violence, and the legitimate threat of serious harm and even death to persons trapped in abusive partnerships. Florida’s case law evolved to prioritize the safety of domestic violence victims who are attacked within their own households by waiving their duty to retreat, and instead affirmatively granting battered persons the right to stand their ground against violent and unpredictable abusers. However, the Stand Your Ground statutes completely regress from this evolved understanding by providing victims of domestic violence the least amount of protection at the place they need it the most—the most dangerous place for a victim of domestic violence is in the household they share with the batterer119.
Conclusion and Implications for Domestic Violence Policy Considerations
As discussed previously, Florida’s Stand Your Ground self-defense legislation is a significant divergence from common law self-defense provisions which presents several barriers to victims of domestic violence using deadly force for self-defense against abusers. The first issue created by this legislation is the divergence from nonaggression, and the ambiguity regarding who the aggressor is in cases of Stand Your Ground defenses. Chapter 776 generally adopts the position of nonaggression, and does not extend immunity to persons who provoked an attack and then argued for the use of defensive force—however, the legislation fails to accommodate for the complexity in case law regarding the use of deadly force against co- habitants or invited guests in instances of domestic violence. The nature of domestic violence is such that it is difficult to discern what an initial act of aggression is, and perhaps more importantly who the initial aggressor was. The phrasing of the statute can allow abusers to
118 §741.30(6)(a) 119 Orr writes that the Court found in Weiand that persons involved in a bar fight receive greater self-defense protections than victims of domestic violence who use self-defense within the household against a violent partner. Orr, Douglass A. "Weiand v. State and Battered Spouse Syndrome: The Toothless Tigress Can Now Roar."
34 argue that their victim is the aggressor—e.g. the abuser threatens the victim, the victim throws an object at the abuser, and as a result the abuser uses force or deadly force against the victim and is legally protected by a stand your ground defense. Furthermore, the issue of aggression is again complicated by Florida’s property defense laws which are accounted for in §776.031, which treats acts of force, specifically forcible entry, into a dwelling, residence or occupied vehicle as a forcible felony, thus permitting the use of deadly force by the property owner against the ‘intruder’. If an abuser is the property owner, and the victim is committing a ‘forcible felony’ by breaking and entering to retrieve his/her belongings, or children or any previously shared possessions, the statue could allow abusers significant leeway in using lethal force via the definition of a forcible felony. Conversely, survivors of abuse are only legally permitted stand your ground defenses if a pretrial order prohibiting contact or a domestic violence injunction exists against the abuser.
The second issue is the divergence from imminence—the use of ‘forcible felony’ within the statute creates an implication of the removal of a credible, imminent harm to a defender prior to using lethal force. Common law evolved to indicate that deadly force is justifiable to use if and when the defender is in immediate danger of serious bodily harm or death; the meaning of forcible felony in the statute is extremely broad and does not necessarily require that the defender is actually in any imminent danger. §776.012 states that the stand your ground provision to use deadly force can be enacted outside the home to “prevent the imminent commission of a forcible felony”, which is then broadly and ambiguously defined in §776.08 as “any felony which involves the use or threat of physical force or violence against any individual”. The language of the statute would allow a bystander to use lethal force if a person was seen attempting to unlock or forcibly enter a car parked on their street; rather than calling law enforcement to respond to the situation, the law technically protects a person who uses lethal force against the ‘forcible felon’ in this situation. In this situation, “imminence” is not a required prerequisite to the use of lethal force, thus creating a strong implication that the concept or threat of forcible entry is sufficient to justify the use of deadly defensive force.
Stand Your Ground legislation clearly favors those who argue self-defense, but the statutory presumptions created in Chapter 776 do not fit defenses for persons who are victims 35 of domestic violence, especially in cases where violence occurs within a common household. Prior to the enactment of the Stand Your Ground statutes, both legal precedent and policy regarding domestic violence cases reflected an evolving understanding of the dynamics of abuse, control, and disproportional violence that occurs between a batterer and a victim who uses deadly force for the sake of survival. Indeed, Florida’s case law evolved to understand the complexities that existed in instances of domestic violence and even accommodated special defenses for survivors of abuse such as Battered Women’s Syndrome, but it is important to note that provisions created in Stand Your Ground did nothing to reflect this change in perception. The reality is that Stand Your Ground does not allow victims of abuse the same presumptions or rights to self defense as it does for any other individual using lethal force in circumstances excluding domestic violence.
Unique to domestic violence self-defense is the issue of proportionality, which Orr explains is complicated by the Florida Stand Your Ground statues. Proportionality is usually referred to in terms of “equal force”, and while the statues in Chapter 776 do not explicitly require equally proportional force to be used in self-defense, there is still the underlying assumption that a ‘reasonable person’ in the defendant’s shoes would have had sufficient cause to respond with the amount of force that the defendant did. For example, if a physically stronger abuser slapped his victim, and the victim finally decides to retaliate and shoots the abuser with a gun, this action may come off as unreasonable and disproportional to an outsider who is an average ‘reasonable person’. However, domestic violence is a complicated system of power dynamics that are specific to each relationship; while there are diagnostic tools like the Power and Control Wheel120 to show common traits and behaviors among abusers to victims of
120 Domestic Abuse Intervention Project. "Power and Control Wheel." Power and Control Wheel. There are eight behaviors outlined in this Power and Control Wheel: coercion and threats, intimidation, emotional abuse, isolation, minimization, denial and blame, using children, economic abuse and male privilege. Coercive and threatening behaviors includes the abuser threatening to leave the family, harming their partner or children, committing suicide or threatening to report the victim to law enforcement. Intimidation involves the abuser making their partner afraid through gestures, destruction of property, displaying a weapon or harming children and pets. Emotional abuse occurs when abusers gaslight their victims, play mind games and humiliate or guilt trip their partners. Isolation entails abusers controlling where their partner goes, what they do and who they communicate with. Jealousy is often used to rationalize controlling behaviors. The method of minimizing, denying and blaming refers to an abuser downplaying their own abusive behavior, ignoring their partners’ concerns and shifting the blame for their abuse to the victim. Abusers use children as a control method by having children relay 36 abuse, an average ‘reasonable person’ who is not the victim of a certain abuser’s behavior cannot accurately predict what ‘reasonable belief’ should mean for a battered person. Therefore, the issue of proportionality and the justification for the use of deadly or lethal force against an abuser is very complicated to determine, especially by outside parties who are not fully aware of the actions of the abuser, nor the effects these actions have had on a defending victim.
Though Chapter 776 does address the issue of reasonable belief, it does not address this issue in such a way that reflects a comprehensive understanding of how trauma distorts a person’s perception of reality. As stated previously, the law is historically written from the perspective of White men who, more likely than not, have not been victims of domestic violence, at least at the hands of an intimate partner. Though case law in Florida clearly considered issues like Battered Women’s Syndrome, and the effects of trauma on victims of domestic abuse, the policy implemented through legislation seems to have ignored the issue altogether—Florida’s present day self-defense laws clearly relied on precedent involving the expansion of castle doctrine protections to women who used deadly force against a co- occupant abuser in a shared household. However, the current statute did not take any specific measures to improve upon what already existed regarding self-defense rights for victims of domestic violence. To an extent, it seems that policy regressed on this evolved understanding by requiring the pre-existence of an injunction to validate stand your ground defenses by battered persons, when it appears that the Florida Courts following Weiand understood the dangerousness and impracticability of requiring victims of abuse to retreat first (i.e. obtain an injunction) before using deadly force to protect themselves. Insofar as domestic violence is messages, using visitation privileges for harassment, threatening to take the children away, or accuse their partner of being a bad parent and caretaker. Economic abuse entails preventing the abuser’s partner from being employed or educated, taking the partner’s money and requiring them to ask for allowances, or restricting the partner’s access to family income. Finally, male privilege (in a heterosexual relationship with a male abuser) is a spectrum of misogynistic behaviors such as treating their partner like a servant, acting like the abuser is the master of the house, or enforcing strict gender roles within the family. This version of the power and control wheel typically applies to heterosexual relationships with a male abuser, thus incorporating misogynistic behavior and male privilege into the control tactics outlined on this wheel. There are other variations of the Power and Control Wheel which are specific to immigrant survivors of IPV/DV and LGBT survivors of domestic violence since there are additional barriers created by abusers in these two cases (threat of outing LGBT victim to family or employers or reporting an undocumented survivor to ICE or taking away their passport). 37 addressed in the context of self-defense within a shared household, victims of abuse are not sufficiently represented or protected by Florida’s extremely broad self-defense laws.