Convicted Felon in Possession of a Firearm May Be Able to Use Florida Stand Your Ground Law

The Florida Stand Your Ground Law, as it is commonly known, received a lot of popularity, or perhaps notoriety, as a result of the pending Trayvon Martin/George Zimmerman case. The law, which really is not very extraordinary, is basically a self defense law that says a person can use force if he/she reasonably believes he/she is about to be the victim of force. The force used by the defendant has to be reasonable under the circumstances and in consideration of the kind of force used or threatened by the alleged victim. In simple terms, if someone is in the process of doing, or is about to do, something violent to you, you can do something violent to him/her as long as you do not go overboard, and there is no duty to retreat from the situation.

One benefit of the Florida Stand Your Ground law is that a defendant charged with a violent crime can have the criminal defense lawyer file a Stand Your Ground motion and have a hearing prior to a trial. If it is established that the defendant meets the parameters of the Florida Stand Your Ground law, the defendant is immune from prosecution. This means that the judge must throw the charges out, and the defendant does not have to take his/her chances with a jury.

One exception to the Florida Stand Your Ground law is that the defendant cannot benefit from the law if the defendant is engaged in an unlawful activity. An obvious example would be a person burglarizing a home, the homeowner comes out with a gun and threatens to shoot the defendant so the defendant shoots the homeowner first. That would clearly fall within a Stand Your Ground situation as a person would have a right to shoot another to avoid being shot him/herself. However, the exception would apply and the defendant would not be allowed to succeed on a Stand Your Ground claim because he/she was engaged in an unlawful activity (burglary) at the time.

In a recent shooting case near Jacksonville, Florida, a defendant shot and killed a person who was pointing a gun at him and threatening him. Based on that, it was a pretty clear Stand Your Ground situation. However, the defendant was a convicted felon, and convicted felons are not permitted to possess guns in Florida. The question was whether possession of a firearm by a convicted felon was the kind of “unlawful activity” that prevents a defendant from asserting the Stand Your Ground immunity.

The court recently held that a convicted felon who is in the possession of a firearm can assert the Stand Your Ground immunity under a specific part of that statute. However, a different court in Florida has rendered a contrary decision. At this point, it is not exactly clear whether a convicted felon in possession of a firearm can use the Stand Your Ground law as an immunity from criminal charges because of the different opinions. Ultimately, the Florida Supreme Court may have to decide the issue once and for all.

We believe it would make sense to allow a person who has been convicted of a felony to have protection under the self defense laws. A defendant can only successfully use the Stand Your Ground argument if he/she can show that he/she was in reasonable fear of death or serious bodily injury. If, under those circumstances, the defendant needs to use a gun to avoid death or serious bodily injury, a person should have that right under the law if the only issue is that he/she was convicted of a felony some time in the past.

For instance, imagine a situation where a defendant is at a friend’s house minding his own business and someone comes in with a gun and threatens the defendant. The defendant sees his friend’s gun, grabs it and shoots the other person to avoid being shot himself. If the defendant had a felony conviction for possessing more than 20 grams of marijuana ten years earlier, should that person not be able to avail himself of the Stand Your Ground Immunity? We do not think so.

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