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Defendant Cannot Use Florida Stand Your Ground Law When He Uses a Firearm and is a Convicted Felon

Much has been made of the Florida Stand Your Ground law since it made national news with the George Zimmerman/Trayvon Martin case. The Florida Stand Your Ground law generally stands for the idea that a person can use force to protect him/herself or another from the imminent threat of unlawful force by another person. A person can use deadly force to protect him/herself or another if he/she reasonably believes the other person is going to use imminent deadly force or commit a forcible felony. Essentially, it is a self defense law that allows a person to protect him/herself or another in situations where the law indicates it is reasonable and necessary. One difference between the Stand Your Ground law in Florida and self defense claims is that the Stand Your Ground law is an immunity from prosecution rather than a defense at trial. This means if a defendant has a successful Stand Your Ground law claim, the judge should throw the case out and it would never go to trial.

However, there are some cases where a defendant does not have the right to assert the Florida Stand Your Ground law immunity. In a recent case south of Jacksonville, Florida, the defendant was charged with aggravated battery with a firearm. The defendant claimed that two men rushed at him in a threatening manner while he was on his front porch so he pulled a gun and shot one of them.

The criminal defense lawyer filed a motion to dismiss the charges under the Stand Your Ground law because the defendant was in reasonable fear of serious injury from these two men. However, the Florida Stand Your Ground law contemplates a person who is “not engaged in an unlawful activity.” This defendant was a convicted felon, and he had a gun on him prior to shooting the alleged attacker. Possessing a gun as a convicted felon is considered “unlawful activity” under the Stand Your Ground law. As a result, the defendant’s unlawful possession of a firearm by a convicted felon precluded him from asserting the Stand Your Ground law immunity claim. The defendant could still assert a defense at trial that he was justified in shooting the other person, but that defense must be made at trial to be decided upon by a jury. It cannot be made before the trial in an attempt to dismiss the charges in a Stand Your Ground law motion.