By Jacek Stramski
Although the facts of this case are not entirely clear, apparently the defendant, Brian Bragdon, has been charged with first degree murder in Palm Beach County. A hearing on Stand Your Ground was held at the trial court. A petition for a writ of prohibition was also filed by the defense in the Fourth District Court of Appeal (DCA), arguing that the defendant was immune from prosecution pursuant to Stand Your Ground, and that therefore the trial court had no jurisdiction to continue to consider the case. The Fourth DCA denied the petition in a per curiam decision. It also certified conflict to the Supreme Court between a previous decision of the Fourth DCA that held that immunity under Stand Your Ground immunity is not available to anyone who is engaging in illegal conduct (such as illegal possession of a firearm), State v. Hill, 95 So. 3d 434 (Fla. 4th DCA 2012), with a Second DCA decision that held that Florida’s Stand Your Ground Law permits immunity from prosecution even where the defendant was engaged in illegal activity at the time he or she engaged in self-defense. Little v. State, 111 So. 3d 214 (Fla. 2d DCA 2013).
A brief general primer on self-defense law might be useful before continuing. Traditional common law self-defense allows the use of deadly force if one has a reasonable fear of imminent death or serious bodily harm, and if there is no reasonable opportunity to retreat. Stand Your Ground laws modify the common law by removing the duty to retreat, even if it is possible to do so reasonably (hence the name of such laws). Additionally, Florida’s Stand Your Ground laws provide immunity from criminal prosecution or civil liability to anyone who uses justifiable force as authorized by relevant statutes. Section 776.032, Fla. Stat.
So, do Florida Stand Your Ground Laws immunize a defendant from prosecution, even if that defendant was engaged in illegal activity at the time of using force? As mentioned above, the Districts are split on this question. In Little, the Second DCA examined the applicable Stand Your Ground statutes, and noted that section 776.032, Fla. Stat. grants immunity from prosecution to anyone who uses force as permitted under sections 776.012, 776.013, or 776.031, Fla. Stat. The Second DCA concluded that section 776.032, Fla. Stat. must therefore be read as providing immunity for a defendant who was justified in using deadly force under any of those statutes. The Court pointed out that the conditions under which deadly force can be justifiably used differ under each statute. For example, section 776.013(2)(d), Fla. Stat., which deals with home protection, does not permit a person to use deadly force in his or her dwelling if the person is engaging in unlawful activity or is using the dwelling for unlawful activity. Section 776.013(3), Fla. Stat. provides that there is no duty to retreat before using deadly force if one is attacked while in a place that one has a right to be, as long as the person not engaged in illegal activity, and if use of such force is reasonably believed to be necessary to prevent death or serious harm.
On the other hand, section 776.012, Fla. Stat., permits the use of deadly force to defend against another’s imminent use of unlawful force, with no duty to retreat, if a person “reasonably believes that 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.” This section contains no language excluding its application from those who are engaged in illegal activity. As a result, the Second DCA held in Little that a person who uses justified deadly force under section 776.012, Fla. Stat. is immune from criminal prosecution pursuant to section 776.032, Fla. Stat., even if that person was engaged in illegal activity.
The Fourth DCA, on the other hand, has held that a person who is engaging in illegal activity is not entitled to immunity from prosecution under Florida Stand Your Ground Laws. In the order that is the subject of this case, the Fourth DCA cites its previous decision in State v. Hill, 95 So.3d 434 (Fla. 4th DCA 2012), which held that a defendant who was unlawfully in possession of a firearm would not receive immunity under section 776.013(3), Fla. Stat., because possession of that firearm was engaging illegal activity. That opinion, however, did not address section 776.012, Fla. Stat., or the grant of immunity for Stand Your Ground cases set forth in section 776.032. Instead, Hill relied on a previous decision of the Fourth DCA, which did not address immunity under section 776.032, Fla. Stat., but was rather an appeal of a murder conviction based on insufficient evidence (that is to say, immunity was not implicated, as the trial had already taken place). Dorsey v. State, 74 So.3d 521 (Fla. 4th DCA 2011).
If the Florida Supreme Court accepts jurisdiction over this matter, expect the contentious debate about Stand Your Ground Laws and the proper limits of self-defense laws to take place not only at the state capitol, but at the state’s highest court as well.