Florida vs. Virginia: comparing self-defense laws

The death of Trayvon Martin sparked controversy and discussion about Florida’s so-called “Stand Your Ground” self-defense rule. We spoke with two local criminal defense attorneys to talk about the differences (and similarities) between the self-defense provisions afforded by both Florida and Virginia law.

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The death of 17-year-old Trayvon Martin inspired national sympathies and vigils. The impunity of his killer, George Zimmerman, however, ignited anger and concern. At the heart of the matter is this simple question: were George Zimmerman’s actions that night legally excusable, and does Zimmerman have protection under the law for shooting Trayvon Martin?

Martin’s death occurred in Florida, which has a controversial “Stand Your Ground” provision in its self-defense laws. This provision allows citizens to use deadly force when they “reasonably believe” they are in imminent danger. Zimmerman told police in Sanford, Florida that he was acting in self-defense when he confronted and shot Martin. Currently, Zimmerman still has not been arrested.

Considering no weapons were found on Martin, the question raised is exactly how reasonable was Zimmerman’s perception of his “imminent danger”?

How similar are Virginia’s laws to those of Florida, and just how far can Virginians go to defend their life and property? I spoke with two local criminal defense attorneys to explore this question.

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“The laws in both states are more similar than you would think,” said criminal defense attorneys David Boyce and Matt Rawls, both of Boone Beale, PLLC.

According to Boyce and Rawls, the heart of both Virginia and Florida’s self-defense laws is what is commonly known as the “Castle Doctrine.” The phrase “your home is your castle” derives from this old English Common Law rule. This rule affords a person the right to use lethal force for protection inside one’s own house. Similar principles and laws extend the right for people also to defend themselves and others outside of the home. Both Florida and Virginia have laws in place to guide their respective citizens in their homes, in public, and in their cars.

Home

In Florida, if someone invades your home, the state recognizes a “presumed fear.” Remember, under the “Stand Your Ground” doctrine you are entitled to use deadly force if you reasonably fear imminent death or great bodily harm. Florida law presumes this reasonable fear on your part because someone has invaded your home. This presumption can be rebutted, but it is a difficult obstacle for a prosecution to overcome. Moreover, in Florida, within your own home, you also have no “duty to retreat.” This means you do not have to try to flee to another section of your house or try to escape before using deadly force to defend against an intruder.

Protecting your castle with deadly force

In early 2011, the General Assembly considered HB 1573, which would allow legal justification “…in using any degree of physical force, including deadly physical force, against another person when the other person has unlawfully entered the dwelling…” The proposed addition passed the House of Delegates. However, it was “passed by indefinitely” by the Virginia Senate Committee for Courts of Justice.

Virginia, unlike Florida, does not recognize this “presumed fear.” That means that just because someone has entered your home, there is no automatic presumption of an immediate fear of death or bodily harm.

“This may not be a huge distinction, but it is significant,” said Rawls. “In Virginia, the use of deadly force in self-defense is permitted when a person has reasonable fears, under the circumstances, the he or she was in imminent danger of death or great bodily harm, and the person must not use greater force than reasonably appears necessary under the circumstances.”

According to Rawls and Boyce, the presumed fear is the significant distinction between the laws in the two states. According to Boyce, “In Florida, the law presumes this reasonable fear. The presumption does not exist here. In Virginia, you cannot use lethal force just because someone has invaded your home. You must have a reasonable fear of death or serious bodily harm.”

This distinction, though, while significant, is still not that great. “Even without the statutory presumption, if someone breaks into your home, it is very often reasonable to fear for your life,” explains Boyce. “And like Florida, there is no duty to retreat. Especially in your own home,” added Rawls.

Public Place

If you are in a public place in which you are legally allowed (e.g. public parks, sidewalks, restaurants, etc.), the situations in which you can use deadly force in Florida and Virginia are very similar. There is an important difference, though.

In both Florida and Virginia you may use lethal force to defend yourself from a reasonable fear death or great bodily harm. In Florida, though not in Virginia, you are allowed to use lethal force to “repel forcible felonies” (e.g. rape, arson, robbery).

Here’s a hypothetical example to distinguish the laws in the two states. Imagine a person approaches you on the sidewalk and tries to steal your wallet. They have no weapon. In Florida, you are allowed to shoot them because they are committing the forcible felony of robbery. However, Virginia does not afford you that same automatic legal privilege to use lethal force. “Remember,” says Rawls, “you must have a reasonable fear of death or great bodily harm in order to use lethal force. Just because someone wants to steal your wallet, doesn’t mean you have a reasonable fear they’re going to kill you. And if they don’t have a weapon, it’s difficult to establish your reasonable fear in the situation.”

Boyce added: “However, if that same robber brandishes a knife or a gun, and threatens you with it, both Florida and Virginia allow you to use lethal recourse to defend yourself without attempting to retreat first.”

If, however, you are accosted by a drunk man on a public sidewalk and you approach that man and begin pushing him in retaliation, “you no longer have clean hands,” legally speaking. Virginia has a “minutest of faults doctrine,” which means that you cannot instigate behavior that would ultimately require you to defend yourself.

So, if you begin yelling and pushing the drunk man that originally accosted you and he then pulls out a knife or gun, you then have to try to extricate yourself (i.e. duty to retreat) before you can legally use lethal force.

Car

Your automobile is considered your property and is treated similarly to the Castle Doctrine with the force you are legally allowed to use to defend yourself. This is true in both Florida and Virginia.

The two states differ, however, in the allowable force which can be used to defend yourself against a carjacking.

In Florida, you can use lethal force if someone tries to steal your car. This is true whether the carjacker is armed or not. Like with the Castle Doctrine, you have no duty to retreat. Also, remember that Florida permits the use of deadly force to repel forcible felonies. That means that Florida law permits you to shoot at a carjacker even after the car has been stolen and the carjacker is driving away.

According to Boyce and Rawls, this is another area where Florida law differs from Virginia. In Virginia, car owners have no duty to retreat, but, again, can only use deadly force to defend against a reasonable fear of death or great bodily harm. In the example where a person steals your car is driving away, it is much harder under Virginia law to justify shooting the thief as he or she drives away.

stock photo by R0Ng

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5 comments on Florida vs. Virginia: comparing self-defense laws

  1. evan on said:

    I’m not sure rape is a very good example of forcible felonies in this situation, as it by definition gives fear of great bodily harm, because it is great bodily harm. Armed robbery and robbery are distinguishable crimes, as are assault and assault with a deadly weapon. Correct me if i’m wrong, while i realize rape can fall under different definitions, i’m pretty sure there’s no distinction between rape and armed rape. The same thing for battery.

  2. Jay Dee on said:

    To RVA

    Your generalizations and attempt to paint all Floridians with a “broad stroke” as being backwards and rude falls flat. Furthermore, how can you expect anyone to take your comments seriously (especially on “education”) when you yourself are challenged to the point where you don’t use spell check to correct your horrid grammar?

  3. AtackDuck on said:

    Well, I know who NOT to hire as a law firm if I am involved in a case of self defense: Boone Beale, PLLC. It would seem these two lawyers are as ignorant of the law as Eric Holder.

  4. wonslung on said:

    I really enjoyed this article. Thanks for writing it.

  5. I love both states…..but I like my “odds” much more in Florida…..

    I can see/hear it now….a guy is breaking into my home…and I have to ask if he is going to hurt me, have a weapon and a felon…???? WTF!!!!!
    I still like the old saying…..it is better to be tried by 12 then to be carried by 6.

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