The short answer is: Yes – but you better have solid evidence.
As our Broward County domestic violence defense lawyers can explain, there are a number of state laws pertaining to self-defense and how it should be applied in Florida criminal cases. Most of these can be found in Chapter 776 of Florida Statutes, which outlines the criteria for Justifiable Use of Force.
- F.S. 776.102, Use or threatened use of force in defense of person. This statute holds that a person can be justified in threatening to use force or actually doing so against someone else when he/she reasonably believes that doing so is necessary to defend themselves against the other person’s unlawful use of force. However, they can’t use deadly force for this purpose – unless he/she reasonably believes that doing so is needed to halt imminent risk of death or serious injury to themself or someone else. In both cases, there is no duty to retreat before using or threatening to use such force.
- F.S. 776.013, Home protection; use or threatened use of deadly force; presumption of fear of death or great bodily harm. This provision states a person who is lawfully inside a dwelling or residence doesn’t have a responsibility to retreat if they feel threatened in that space. They can stand their ground and use force or threaten to use force. As for the degree of force, it can only be deadly if the person has a reasonable belief that they must do so in order to prevent imminent death or great bodily harm to themselves or another person OR to prevent the imminent commission of a forcible felony.
- F.S. 776.031, Use or threatened use of force in defense of property. A person can use or threaten to use force against someone else when and to the extent that individual believes doing so is necessary to prevent or terminate another person’s trespassing on personal property or criminal or tortious interference with personal property in their possession (or in possession of an immediate family/household member). Force can only be deadly if one reasonably believes using it is needed to stop the imminent commission of a forcible felony. (Forcible felonies are those that involve the use of physical force against another human being.)
If you’ve used justifiable force, then you would not be subject to prosecution. However, there is another provision worthy of consideration if the underlying circumstances involved an allegation of domestic violence:
- F.S. 776.041, use or threatened use of force by aggressor. Use of force won’t be considered justifiable if the person accused was either attempting to commit, committing, or escaping after the commission of a forcible felony OR that individual initially provoked the use or threatened use of force against themselves. (There are exceptions to the latter half if the use of force was so great they believed themselves in danger of imminent death or serious injury or they’d exhausted every other reasonable means to escape such danger OR they tried in good faith to withdraw from physical contact and indicates clearly their desire to withdraw/terminate use or threatened use of force.)
Risks of a Self-Defense Argument in a Florida Domestic Violence Case
Your Broward domestic violence defense lawyer can tell you for certain if the circumstances of your case lend themselves to a legal strategy involving self-defense. But it’s typically not the go-to in domestic violence cases, and your lawyer will also likely tell you there are some big risks with going this route.
Anytime one is arguing self-defense, it’s risky because doing so requires that you admit to a few important points of the prosecutor’s case against you:
- That you were there.
- That there was an altercation or physical fight.
- That you caused the accuser’s injuries.
These are elements you might not necessarily want to concede to in some domestic violence cases. But if you’re arguing self-defense, you must. It will then be up to your criminal defense lawyer to prove:
- You were facing an imminent threat. This can be the toughest part in a domestic violence case, particularly if the alleged victim is smaller than or not as strong as you. In that case, proving a “reasonable belief” of being threatened can be tougher. If the alleged victim had a weapon or threatened to use one or there was a reasonable belief they had easy access to one, fear of imminent threat might be easier to prove.
- Your actions were reasonable under the circumstances. If the accuser in the case was seriously injured, the burden is on you, the defendant, to prove that under the circumstances, your actions amounted to a reasonable response. If you continued to use force after the imminent threat was no longer ongoing, that could be an impediment to successfully arguing self-defense.
- You didn’t provoke the original threat. If a defense client of ours does something to provoke the attack that they later had to defend themselves against, it would be tough to prevail on a legal argument of self-defense.
The bottom line is that while it is possible to raise an argument of self-defense in a Florida domestic violence case, it’s not a strategy that should be taken without considerable caution and consideration for the totality of the evidence. If you have been arrested for domestic violence in South Florida (Broward, Palm Beach, or Miami-Dade Counties), our criminal defense team can help.
Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Justifiable Use of Force, Chapter 776 Florida Statutes
More Blog Entries:
What to Know About Posting Bond in Florida Domestic Violence Cases, Oct. 21, 2022, Broward Domestic Violence Defense Lawyer Blog