Florida Statute § 776.013

[Callisto32]

Last edited Mon Mar 26, 2012, 11:02 AM - Edit history (1)

The 2011 Florida Statutes

Title XLVI
CRIMES

Chapter 776
JUSTIFIABLE USE OF FORCE

776.013?Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1)?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 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 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 defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2)?The presumption set forth in subsection (1) does not apply if:
(a)?The person against whom the defensive force is used 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
(c)?The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d)?The person against whom the defensive force is used 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 force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

(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.

Note this VERY important language:

(2)?The presumption set forth in subsection (1) does not apply if:
...(b)...or (c)?The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or....



(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Chasing a person out of a place where he has a legal right to be is unlawful activity. Forcing someone to stay somewhere he does not want to be without a DAMN good reason, is unlawful.

Since it sure looks like Zimmerman was trying to chase someone off, he was engaged in unlawful activity. On the face of the statute, that is enough to eliminate the protections of the section.

Edit: When I posted this, I did what we call on ar15.com (come for the 20 people that know the weapon, stay to laugh at the hundreds of morons) a "double tap." Unfortunately, one was an early edit, intended to be only previewed, and I deleted the newer one when I removed the duplicate thread. The final paragraph was supposed to be here all along, and I just realized it was not. Also, the statute is now in "excerpt" formatting

[Atypical Liberal]

1. I believe this is the wrong statute.

I believe the statute at hand is this one:

776.041?Use of force by aggressor. —The justification described in the preceding sections of this chapter is not available to a person who: ....

(2)?Initially provokes the use of force against himself or herself, unless:

(a)?Such 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 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 of force, but the assailant continues or resumes the use of force.

[Callisto32]

3. I looked up FL Stand your ground statute.

The section I posted is earlier in the chapter. The section you posted modifies the preceding sections, ALL of them, while the sections above it contain their own, self-imposed limitations upon applicability.

What you cited certainly bears on the matter, but doesn't even need to be brought up (in court, I'd pile it all on, of course) here, because the actual SYG statute found in .013 already doesn't apply without the further limitations imposed by .041

EDIT: PRESUMING, Zimmerman was engaged in an unlawful activity at the time, but that will be up the trier of fact.

[CAPHAVOC]

5. I think

These Laws were passed in response to a rash of carjackings and home invasions.

[X_Digger]

19. Actually, his applies more, because SYG - 776.013(3)

Doesn't itself have that language.

A couple other sections with relevance-

http://law.onecle.com/florida/crimes/776.08.html

'forcible felony' defined- if Zimmerman assaulted Martin, then SYG doesn't apply. (776.041).

http://law.onecle.com/florida/crimes/776.041.html

[Callisto32]

37. I can't help but feel we are talking past one another on this thread.

Doesn't have WHAT language?

The later section has no meaning without the preceeding sections.

The first thing .013(3) says is that it doesn't protect those that are engaged in illegal activity. You can pile .041 on top of it, if you wish, but I don't see how the following

776.041?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 of force against himself or herself, unless:
(a)?Such 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 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 of force, but the assailant continues or resumes the use of force.

actually adds anything to the function of section .013(3) which already says it doesn't apply if the person using the force is engaged in illegal activity.

Edit: If anything in .041 applies, I would argue that (2) is the place to look, in suggesting G.Z. certainly may have provoked the use of force against himself.

[X_Digger]

38. The 'and is not engaged in illegal activity'.. does not apply to (3) (SYG) -- my bad.

Notice (2)

[div class='excerpt']The presumption set forth in subsection (1) does not apply if:

So we have

[div class='excerpt'](1) Presumption change in some places if (a) and (b).

(2) Presumption not valid if (a) or (b) or (c) or (d).

(3) Stand your ground.

(4) More castle doctrine

(5) definitions

So you can't really depend on (2) because it only applies to (1).

But later on in 776.041, we get the 'does not apply if engaged in illegal activity' -- which applies to the whole thing.

(3) should have been right above (5) to make things clearer (separating castle doctrine from SYG).

Perhaps I said it badly, hehe.

eta: Yup, disregard, hehe. I thought you were depending on the section in (2), rather than (3) itself, hehe.

[Callisto32]

42. No prob, bob.

[TheCowsCameHome]

2. An armed yahoo like Zimmerman

probably didn't have a copy of this in his pocket, ya think?

[Callisto32]

4. So, Mr. CameHome.

Are you admitting that it is people, not the laws, that are the problem?

A yes or no answer, please.

[Hoyt]

6. Most like Zim never get past "with a gun in my pocket, I can stand my ground against unarmed teen."

[ProgressiveProfessor]

8. Speaking from your personal experience or just more random slurs?

[ProgressiveProfessor]

7. He went through the required CCW training for FL where it was covered

Neither you nor Zimmerman can legitimately claim lack of knowledge

[Hoyt]

9. I'm still waiting for you or other trainers to show their pre-Zimmerman slides or text on topic.

I bet is was a cursory overview with a lot of terms like "stand your ground" thrown around to make the attendees feel all good about carrying a gun and standing up against unarmed teenagers.

[Callisto32]

10. What the fuck is your problem?

[Hoyt]

12. What is yours? I'm not the one promoting more guns, laws that allow one to shoot whenever, etc.

[AH1Apache]

21. Who here is promoting laws that allow one to shoot whenever?

[Callisto32]

25. I meant your suggesting ProgressiveProf, (or those like her) harbor such vile thoughts.

What the FUCK is your problem?

All you ever do is come in here and accuse people of sick, vile thoughts, either that or blow off, spouting nonsense about which you are either grossly ignorant, or purposefully trolling.

So, yeah, "Hoyt" what the fuck is your problem?

[Hoyt]

27. I'm against more guns in society, especially in public. Simple.

[AH1Apache]

30. So

what are YOU doing to change the laws besides coming on this group and hurling insults at other DU members?

[shadowrider]

46. Notice: No answer.

[Callisto32]

32. I don't play 3 card monte.

Goodby, Hoyt.

P.S. PProf deserves an apology, even if you are just a fucking troll.

[AH1Apache]

33. The funny thing is

that he/she doesn't realize just how truly ignorant those posts sound.

[rl6214]

45. His mom made him clean his basement bedroom and threatened to take away

his internet privledges.

[ProgressiveProfessor]

11. I don't teach in Florida and CA does not have SYG.

In the class we just finished, Horn and now Zimmerman were discussed.

So were some of your comments...

[Hoyt]

14. Did you include the part about turning off your cell phone, exactly what to tell police, etc.

if they shoot someone.

[shadowrider]

17. What you tell police, even if the shooting is justified, is:

1) I was in fear of my life
2) I want a lawyer

[X_Digger]

39. Got a cite to that, Hoyt?

I've seen you repeat it ad nauseum without indication that it bears any resemblance to reality.

[Hoyt]

40. At your service.

http://www.democraticunderground.com/117220029

[AH1Apache]

49. Try as I might

I can't find anywhere where it was said to turn off your phone. Can you point it out please?

[Hoyt]

52. Hang up, turn off, be quite, keep your mouth shut -- what's the difference?

The advice is how to protect yourself if you need to hide the fact you shot when you shouldn't have or did not need to. It might be good legal advice, but I have a hard time understanding why someone who carries a gun -- and, of course, thinks they are a wonderful law-abiding citizen when walking around with that gun -- would even worry about that. Guess one needs to be prepared if they pull a Zimmerman.

[AH1Apache]

54. More vile and bullshit accusations

That is not what the advice is about, you never ever talk to the cops without a lawyer present, I have relatives who are cops and even they say the same thing.
As to you having a hard time understanding why we have CHL's, well the only answer I can give is this, that's your problem, not mine

[X_Digger]

55. So 'turn off your phone' is bullshit, yes?

More hyperbolic nonsense? Expect me to point that out to you, every fucking time you misquote it.

Thanks for the cite, you'll be seeing it again.

[rl6214]

47. Again more vile accusations

About par for the course annnd, on that comment, I'm off to play golf I think.

[rl6214]

50. I just read that thread and didn't see anyone suggest turning off the phone

Just hanging up and putting the phone down. Am I missing something? Care to cite the exact quote?

[shadowrider]

13. Your hindsight is 20/20. Now, explain to me HOW Zimmerman KNEW the teenager was unarmed.

[Hoyt]

15. You tell me why he would think a teenager is armed.

Do you think all carriers assume every Black kid -- or any kid -- is armed? And you want people walking around like that with a gun or two in their waistband.

[shadowrider]

18. Nice deflect. You can't answer the question so you send it back.

[Hoyt]

24. OK, I will answer. Martin was a Black kid. Zimmerman did not think he was armed. But still shot him.

All that under protection of laws pushed through by the right wing gun lobby that would like nothing more than to see more people carrying guns and shooting minorities and the poor.

Now, you answer me -- why should Zimmerman, or any other person carrying a gun assume Martin was armed? And, if one does assume something like that because of Martin's appearance or whatever, why the fuck do we allow people that stupid to carry a gun in public?

[AH1Apache]

28. Wow

The gun lobby would like nothing more than to see more people carrying guns and shooting minorities and the poor.
Show me where the so called gun lobby has said that, please just one article, I'll wait.

[Hoyt]

29. Right wingers make up gun lobby.

[AH1Apache]

31. Same old deflection

I'll ask again, show me just one article or quote from the "gun lobby" that encourages the shooting of minorities and the poor.

[AH1Apache]

36. Still waiting for that article or quote

[shadowrider]

48. You'll wait a long time. n/t

[AH1Apache]

20. Please Hoyt

get a new schtick. The one or two guns in the waistband is so stale that it should be thrown out like old bread.
Just sayin.

[Hoyt]

22. You've only been here a day or two -- how do you know?

[AH1Apache]

23. As I told you before

I've been lurking for quite awhile and have read your posts so I have a good read on your opinion of us pro RKBA'ers.

[rl6214]

51. I told him, and I've been here a while.

[rl6214]

44. "I'll bet"

Yup, that's all you've got, no actual knowledge, just speculation and guesses.

[d_r]

16. This part is important

section (3) is the "stand your ground" section-

"...reasonably believes it is necessary to do so to prevent death or great bodily harm..."

To use deadly force, he had to reasonably believe that Trayvon was going to kill him or cause him or cause him great bodily harm. I don't see any way that it would have been a reasonable belief.

And yes, to the OP, I think that Trayvon had a reasonable expectation to defend himself in this situation - being chased/held. If he used his fists to protect himself, ZImmerman could have used fists to respond. Can't bring a gun to a fist fight -that you started - and consider it a reasonable self defence.

[Callisto32]

26. My point exactly.

When I say I don't think it applies, I mean it sure looks like G.Z. was busy engaging in unlawful activity, and so cannot claim the protections that would otherwise be afforded to him under 776.013.

[Oneka]

34. Zimmerman

Reportedly had received a broken nose
At the hands of Martin. In my state a broken nose IS great bodily harm.
Not sure how it is determined in Fl.
If reports are correct, then Zimmerman
Would have no trouble with reasonable fear
being asserted.

[AH1Apache]

35. While I generally agree

Zimmerman should have never left his vehicle and just waited for the police, if he had done as the dispatcher told him to do, this young man would in all likelyhood still be alive and we wouldn't be having this conversation.

[Oneka]

41. I won't argue that point

He should have stayed in his truck.
The fact that he followed Martin, however, while stupid, does not appear to be criminal. We don't yet have a clear picture of what transpired between the two, between the time of the 911 call, and when police arrived. There are Various reports out there, but no one seems to know who attacked who physically ,first.

[d_r]

53. a broken nose doesn't equate to dead

self defence from getting a broken nose is a high fist block, not shooting somebody.

[pipoman]

56. The specifics of this case aside..

in general a physical attack with or without a weapon can meet the threshold of "fear of death or great bodily harm". More people are killed every year with 'hands and feet' than with rifles.

[GreenStormCloud]

57. You assume that a defender is skilled in martial arts.

You further assume that a defender is physically fit. Doing such things is fairly difficult for a senior citizen with a mild disability and a heart condition, such as myself.

[d_r]

59. Sorry

I was talking about this specific case.

If it was an older person with a disability who was being held down and beaten with a broken nose I would think it was a much more reasonable case of believing oneself to be in danger of serious harm or death than I would if it was a guy who outweighed the other by 100 pounds.

I think you have to look at the individual cases. That's why the law has words like "reasonable" and why we have juries.

My opinion on that is that it isn't reasonable to start a fight and then pull a gun if you are losing. That's a very different situation from an older person or a disabled person being attacked. My view is that you have to meet force with about equal force.

I've come closer to shooting someone in civilian life than I would like. I held a pistol on a guy who broke in to my house. I know now he was mentally ill, and I'm glad I got out of it without killing him. I really am. I could have easily shot him and it would have been legal, but I'm glad I didn't. If it had gotten any hairier I would have, but luckily I didn't have to.

This guy did not need to shoot that kid, that's my opinion. There were a ton of ways he could have gotten out of that situation without killing him.

[GreenStormCloud]

60. I agree. Zimerman had no business approaching Martin.

I took your previous post as refering to the general case instead of this specific one. Thank you for cleaingr up my misunderstanding of your intent.

[rl6214]

43. Was zimmerman trying to chase Martin off or was he merely following him?

I don't think your framing it as chasing him off would stand up in court since witnesses have stated that zimmerman turned and was walking away from Martin when he was attacked.

[Callisto32]

58. No, sorry if it read that way.

If anything Zimmerman was attempting to falsely detain him, it seems.