The Retreat Rule in Florida -- updated 7/12/2017

The Good, the Bad, and the Uglier.
How the Retreat Rule got back into Florida law -- big time!

copyright 2017 by jon gutmacher ***

In 2005 the Florida Legislature passed a number of changes to the self defense statutes in Chapter 776 of the Florida Statutes.  These changes took the popular name of the “Stand Your Ground” law.  In essence, the changes were designed to all but do away with the unworkable and confusing “retreat rule” that applied to the use of deadly force situations.  In fact, in non-deadly force situations there had never been a “retreat rule” in the law of Florida, or just about any other state.

The original legislation primarily consisted two major areas.  One devoted to the use of deadly force within a home, residence, or occupied vehicle – the other covering everywhere else with a certain amount of  legal overlap.  However, as applied to the retreat rule the changes to F.S. 776.012 were of critical significance:

§ 776.012. Use of force in defense of person  (2005 version):

“A person is justified in using 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.

“However, a person is justified in the use of deadly force and does not have a duty to retreat if:

“(1) He or she 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; or

“(2) Under those circumstances permitted pursuant to s. 776.013.  (ie: defense of home, etc.)


QUESTION: So, what did the 2005 changes to F.S. 776.012 do, different from previous Florida law?

ANSWER:   The law remained unchanged other than “retreat” was eliminated in all situations where there was a reasonable belief that the use of deadly force was necessary to prevent imminent death or great bodily harm, or to where there was a reasonable belief it was necessary to stop or prevent the imminent commission of a “forcible felony”.

QUESTION: How was this different than the prior retreat rule?

ANSWER: The pre-2005 “retreat rule” requires that before using “deadly force” – a person must retreat if they can do so without increasing the danger to themselves, or in certain instances where attempting to stop a forcible felony – where retreat would be “futile” in stopping its commission.  In essence, if there is a chance you can retreat with safety – it becomes a jury question whether you should have tried to retreat, or not.  Of course, if you made a mistake by retreating, and are killed or severely injured – it’s just your bad luck.

QUESTION: Why is the “retreat rule” unworkable?

ANSWER: From a practical standpoint, if a firearm is involved – there is rarely anywhere you can run or hide without exposing yourself to still being shot.  Same with many other weapons, or even a stronger opponent.  You cannot turn your back and run from someone with a knife or bat, or who can catch up to you.  They will stab or hit you from behind.  Likewise, by running or hiding you may lose your chance at being in a better position to defend yourself, assuming your attacker decides to pursue you, or use a weapon against you.  There is often even the question of why you didn’t try to retreat “more” than you did.  Worst, and as I mentioned before – the retreat rule often forces the honest citizen to try to make a legal decision in a life-or-death situation.  If the person decides they may legally need to “retreat” where that is actually a bad practical decision – they may pay for their attempt at legal compliance – with their life.  In fact, often the focus of a prosecutor before a jury is “what else” you could have done other than using deadly force – and then theoretically exhausting all those other possibilities that you never even considered, or could have considered – because in the heat of the moment your adrenaline is going thru the roof, and you are simply focused on survival, or stopping an extremely serious situation, rather than whether you are acting legally or not. Plus, different juries will come to completely different end results on the exact same evidence in these situations, depending on the perceptions of those who make up the jury pool.  And last, you may reasonably judge a situation as one where “deadly force” would be lawful – but a jury might later decide the situation was only one of “non-deadly force”, and by not retreating – you are guilty of your use of deadly force, because it then becomes one of “excessive force”.  This is often the case where you are threatened with a beating by a stronger opponent, or several opponents.

QUESTION: Wasn’t Stand Your Ground an entirely “new” concept?

ANSWER: No.  In fact, it’s been the law in all federal courts since 1895 when the U.S. Supreme Court case of Beard v.  United States, 158 U.S. 550 (1895), held the following:

“The defendant was where he had a right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault and had reasonable grounds to believe and in good faith believed, that the deceased intended to take his life or do him greatly bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury.”


QUESTION: What about the other part of the statute that was revised in 2005?  The part about homes, residences, and occupied vehicles?

ANSWER: That’s section 776.013.  As you may recall, the old “castle doctrine”, which predated Stand Your Ground,  said you didn’t have to retreat from your home or residence when using deadly force if you had a reasonable belief such was necessary to prevent imminent death or great bodily harm, or the imminent commission of a forcible felony.  There were a couple of exceptions, but that was basically pre-2005 Florida law.  The 2005 enactments added “occupied vehicles” to these non-retreat “castle” areas, and also added some important “presumptions” that if an individual was using force to unlawfully enter such a structure or vehicle – that you were “presumed” to have a reasonable fear of imminent death or great bodily harm in stopping or preventing that.  In other words – with a few exceptions – deadly force was always authorized when those pre-conditions were met in a forceful invasion or  forceful attempt to invade a home, residence or occupied vehicle.

QUESTION: Anything else?

ANSWER: Well . . . I'm jumping ahead here into the next section, but in 2014 the Legislature also revised F.S. 776.031 which governs defense of real and personal property other than dwellings.  That revision added the retreat rule to non-deadly force situations for the first time.  Thus, under current law, both the threat OR use of non-deadly force requires application of the retreat rule -- unless you are a member of the immediate family of the person entitled to possession of the property, or unless you have an actual “legal duty” to protect the property.

QUESTION: Why would that be a problem?

ANSWER: Well . . . for instance: if you see someone stealing a bike from your neighbor’s property you certainly don’t have a “duty” to protect it.  Thus, you must apply the retreat rule before you can even threaten the use of non-deadly force.  Go try to figure that one out, or how you could work it. Lots of luck.

QUESTION: But, other than defense of property – the retreat rule is dead, right?  Didn’t the Legislature kill it in almost all other instances in 2005?

ANSWER: Nah.  You should be so lucky.  Because it seems the Legislature is never satisfied with a good thing, and as I hinted to earlier,  they screwed everything up in 2014 when they once again revised the original Stand Your Ground law on the premise they were making it stronger.  In actuality, a complete lack of drafting capability and legal understanding caused a major disaster in the self defense laws that not only put us back to before 2005 – but actually made the law of self defense substantially limited in ways it had never been before.  In one stroke, they inadvertently wiped away almost ten years of favorable case law, and reinstated and strengthened the retreat rule in ways that had never even been considered before by the worst anti-gunner.  And, this was all because of severe drafting errors, and a lack of understanding what they were actually passing.  This next section will examine that problem:


THE GOOD, THE BAD, AND THE REALLY UGLY

In 2014, someone in the Legislature got the bright idea that although the “use” of deadly and non-deadly force was covered by Chapter 776 – “threats” made in self defense were not!  A pretty astounding, and off the wall interpretation that is rumored to have originated from an equally astounding ruling made by some lower court judge who was just as off the wall as the forthcoming legislation.  Right or wrong – it seems constitutionally astounding that a threat of using force to stop an unlawful attack would not be protected under the concept of self defense – although the actual use of force would be!  But, rather than argue the merits or demerits of the concepts involved, or the possible constitutional issues – the Legislature amended both F.S. 776.012; 776.013; and 776.031 into a drafting mess that pretty much totally destroyed and emasculated the original Stand Your Ground concept and legislation.   Here’s the revised section of the law they passed in 2014:

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."

If you read the first section carefully, you’ll see it doesn’t change the old law very much, other than it unnecessarily added "threats", and also added that a defender “does not have a duty to retreat” if they follow this section of the law.  In other words: both the old and new law recognized  a right of self defense if a person reasonably believes his or her conduct is necessary to defend against another persons unlawful use of imminent force.  The problem here is that no “duty to retreat” ever existed in non-deadly force situations before the 2014 legislation.  Never!   This unnecessary additional language infers there is some legal responsibility to retreat in non-deadly force situations if the section is not followed.  It also reinforces the next section – which is the real "hidden monster" in the legislation:


QUESTION: What’s the “hidden monster”?

ANSWER: Well, the next section adds a whole slew of new prohibitions and predicates that screw up the works for everyone.  First – you can’t “threaten” to use deadly force unless you’re in a deadly force situation.  So, for example:   If I threaten to “knock your teeth out” unless you stop your illegal actions – even if that threat is reasonable under the circumstances – unless I have a reasonable fear of imminent death or great bodily harm . . .  or . . .  a reasonable belief it is necessary to stop or prevent the imminent commission of a forcible felony – I now must apply the retreat rule before using such a threat – otherwise my actions are illegal.

Why???

Because threatening to knock someone’s teeth out is arguably – “Great Bodily Harm”.  Moreover, even if I do retreat – I may still be acting illegally if I made such a threat in a non-deadly force situation, because I can only “threaten” deadly force in a “deadly force” situation, in the first place!

QUESTION: Is that all?

ANSWER: No.  You wish!  Because now – even if I have a reasonable belief in imminent death or great bodily harm (or stopping or preventing a forcible felony) – if I am not in a “place where I have a right to be” – and such a prohibited area could be a closed public park, post office property or parking lot, possibly within 1000 feet of “school grounds”, a neighbor's yard, or the myriad of other places a firearm or weapon might be prohibited, or I would first need permission – I must first apply the retreat rule to be legal.

Likewise, if I am driving under the influence, have a joint in my possession even at my home, spit on the sidewalk, drive with a suspended license, on property I am not allowed to be on, or am in violation of a county zoning ordinance that carries criminal penalties – I am likely “engaged in criminal conduct” – and likewise must apply the retreat rule before I can legally use deadly force.

So, the net effect of the changes in the 2014 legislation was to:

1. Considerably complicate the self defense laws

2. Make threats of deadly force or great bodily harm, even if such are reasonable –  unlawful except in an actual deadly force situation.


QUESTION: OK.  But, assuming it was really important to add “threats” into the law  – was there a better way of doing it?

ANSWER: Of course.  All they needed to do was amend the first part of 776.012 – and leave the rest alone.  That would have solved the whole “threat” problem.  In fact, they could still do that as shown in this example of  a much easier draft of what would work,  as well as being clear and simple:

Drafting Cure for Florida Statute 776.012:
(1) A person is justified in using [non-deadly force] or  threatening to use [any] 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.

QUESTION: So, how does this all work today in a real case?

ANSWER: Well – here are the circumstances where a jury must decide if applying the retreat rule was necessary before using or threatening deadly force.  And likewise, if you are in an emergency situation defending yourself – this is the “checklist” you’re supposed to mentally go thru while trying to stay alive:

1. If a threat of deadly force (or great bodily harm) was used – was it actually a deadly force situation?

2. If deadly force, or a threat of deadly force was used – was the defender in a “place where they had a right to be”?

3. If deadly force, or a threat of deadly force was used – was death or great bodily harm imminent, and if so was the use of such reasonable and necessary?

4. Was the individual using self defense the initial “aggressor”.  (because this is significantly more complicated than just “retreat” as it requires much more).

5. Where defending property not a dwelling – did the defender first apply the retreat rule, even before using or threatening non-deadly force – unless – they were a member of the immediate family, or have an actual “duty” to defend the property.

And if this wasn’t enough of an emasculation of the Stand Your Ground law, and a complete and unnecessary extension of the retreat rule into non-deadly force situations -- especially situations where only a threat was being used – get ready for the next legislative screw up in 2017.

QUESTION: You mean the Legislature screwed up the law again?

ANSWER: Yup.  That’s Senate Bill 1052, which was signed into law by the Governor in June 2017. The bill was originally an attempt to eliminate a drafting problem in F.S. 776.013 that might restrict Stand Your Ground (ie: no retreat necessary) under that section only if a person were first “attacked” in a dwelling, or residence.  Not a bad idea.  However, instead of making a simple revision, the Legislature messed it up by complicated language that also states you now have to be “in” a residence or dwelling to defend it under the castle (no retreat) doctrine in 776.013.  If you are outside – you must first apply the retreat rule.  However, since the "presumptions" still apply -- those presumptions, where applicable, will likely trump the need to apply the retreat rule.

So, there you have it.  From a near perfect statute in 2005 that almost completely eliminated the hated and unworkable retreat rule – to legislation that has thrown us back to pre-2005 law, made numerous reasonable threats unlawful, and extended the retreat rule to non-deadly force situations for the first time in the legal history of this State.  Nice going!

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