Double Standards in Florida Legislature: the Influence of Domestic Violence on Florida’S Self Defense Laws
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1 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 2 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.