It is said that the first casualty of war is the truth, and we are being provided with a ringside seat to just such political theater with today’s newest front on the war on law-abiding gun owners.

That front is, of course, being waged on so-called Stand Your Ground laws.

This past week Florida Senate Democrat Leader Chris Smith stated that the state’s stand your ground law “give[s] deadly aggressors a free pass from prosecution,” as he advocates for “long overdue and reasonable changes” to the law, as reported in the Tampa Bay Times.

Mr. Smith has put forward “SB 122: Self-Defense” which makes several changes to Florida’s existing self-defense laws. Curiously, one facet of Florida self-defense law that it does not change is Stand-Your-Ground. The statutory language that “A person does not have a duty to retreat if the person is in a place where he or she has a right to be,” remains intact, despite Smith’ claims that this is the issue he intends to address.

Trayvon Martin

(Trayvon Martin)

So what exactly does Smith’s statutory language change? Amongst a flurry of changes, many of which are inconsequential, two appear particularly notable.

The first feature is that it is specifically crafted to address the factual scenario that played out in the self-defense killing of Trayvon Martin by George Zimmerman.

In every state, including Florida, an initial aggressor is not allowed to justify his initial use of force as self-defense. This is consistent with the second fundamental principle of the law of self-defense, “Innocence” (Chapter 2 in The Law of Self Defense, 2nd Edition).

It is also true, however, that an initial aggressor can “regain their innocence” for purposes of self-defense. The classic scenario is when the initial aggressor’s use of force is limited to non-deadly force—let’s call this person “George” (while noting that there was never any evidence that anyone but Trayvon was ever the aggressor in the Zimmerman case). George’s victim—let’s call him Trayvon–is lawfully permitted to respond only with a similar degree of non-deadly force.

If Trayvon instead responds with deadly force, he has unlawfully escalated the confrontation—indeed, Trayvon has in effect created a second, separate deadly force confrontation. In this case, Trayvon has become the aggressor in the second confrontation, and George is now the victim. George now has all the self-defense rights of any innocent person to protect himself from this deadly-force attack, including responding with deadly force in return. (Note, however, that George could still be held legally liable for his initial use of non-deadly force, which cannot be justified as self-defense if he was the aggressor.)

This is captured in Florida law in “776.041 Use of force by aggressor” which provides in relevant part that self-defense:

“is not available to a person who . . . initially provokes the use of force against himself or herself, unless 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 . . . “

It is important to note that while this aggressor statute does allow for a non-deadly aggressor to claim self-defense if he is faced with a deadly-force response, he remains stripped of any “Stand Your Ground” rights. In order to recover his innocence under this statute he is required to have “exhausted every reasonable means to escape such danger.”

This requirement gives the lie to the many claims by the misinformed—and those who wish to misinform—that Stand-Your-Ground means George can simply shoot someone first and ask questions later. Stand-Your-Ground never applies to the aggressor in a confrontation. It can only ever apply to the person who is a victim of an unwarranted attack. In order to Stand-Your-Ground and use deadly force in self-defense you must be the victim of an unwarranted deadly force attack—period.

Mr. Smith wishes to delete Florida’s statutory language enabling the recovery of innocence of a non-deadly aggressor faced with a deadly-force response, and replace it with language to the effect that self-defense is not available to a person who:

(c) Leaves a place of safety to place himself or herself in proximity to a situation likely to result in a use of force.

Self-defense would also be denied any person who:

(c) Leaves a place of safety to place himself or herself in proximity to a situation likely to result in a use of force; or

(d) Pursues an alleged trespasser or assailant after the alleged trespasser or assailant has withdrawn or when the incident that gave rise to a previous confrontation has ended.

Let’s think about the unavoidable consequences of such statutory language. It means that if lawfully armed “Tom” sees “Walter” raping a woman in the town square, and Tom comes to the woman’s rescue in such a manner that he “leaves a place of safety to place himself . . . in proximity to a situation likely to result in a use of force,” and Walter turns and begins shooting at Tom with a pistol, if Tom uses his own sidearm in self-defense and kills Walter, Tom does so with no self-defense justification. Under Mr. Smith’s statutory language, in this scenario Tom is a murderer.

It also means that if Walter has just completed his rape and is departing the scene of the crime, and Tom pursues him while guiding police officers to the scene to make an arrest, and Walter seeing this pursuit turns and attacks Tom with a deadly weapon, Tom has no right to use similarly lethal force in self-defense. Mr. Smith wishes to literally force Tom to bring his bare hands to a gun fight, or have him convicted of murder.

Perhaps this is the kind of self-defense framework the citizens of Florida will welcome with open arms, but I rather doubt it.

Florida State Senator Chris Smith

Florida State Senator Chris Smith

The second major change created by Mr. Smith involves the civil immunity language of existing Florida law. Actually, there are two such changes he proposes.

First, under Florida statute 776.032, “Immunity from criminal prosecution and civil action for justifiable use of force”, if the aggressor in a self-defense encounter seeks to sue the person who defended themselves against the unlawful attack, and the court determines that the defender use of force was lawful self-defense and therefore immune from civil liability, the court must award lawyer costs and other fees to the person who acted in self-defense.

In other words, if you shoot someone in lawful self-defense and they or their family later sue you, and you qualify for immunity, the court must compel your attacker to pay for all your legal expenses. The court has no discretion in this regard.

Mr. Smith seeks to make the recovery of legal costs by the lawful defender optional, and within the court’s discretion. This means that if the civil case is brought before a plaintiff-friendly judge, the lawful defender can expect little hope of actually recovering their legal expenses even if they successfully defend themselves as effectively in civil court as they did in the real world.

Second, Mr. Smith provides that the court may apply comparative fault to award damages. Today, if the lawful defender wins in civil court—meaning a preponderance of the evidence, or 51%, supports the lawful defender–the unsuccessful attacker who sued him for $10 million gets nothing (and has to pay the defender’s legal costs).

Under Smith’s proposed language, if the court decides that the lawful defender was 51% in the right, the attacker still gets to recover 49% of the amount of damages, or $4.9 million. Even if the lawful defender is 90% in the right, he must still pay the attacker $1 million if there are $10 million in total damages. So, having survived a lethal attack, and having survived criminal prosecution, the lawful defender can be all but certain to be destroyed in civil court.

George Zimmerman, minutes after being attacked by Trayvon Martin

George Zimmerman, minutes after being attacked by Trayvon Martin

It’s hard to see such a proposed change as anything more than a sop to plaintiffs’ lawyers seeking to ride a felony attacker’s violent act to the bank.

The mainstream media is, of course, reporting such legislative proposals as “simple” and “common sense” changes to Florida’s Stand-Your-Ground law. Hopefully someone will inform Florida’s voters on the negative consequences of Mr. Smith’s legislative proposals.

–Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer in his third decade of practice, an attorney member of the Armed Citizen Legal Defense Network, and a Guest Instructor on the Law of Self Defense at the Sig Sauer Academy. He is the author of the seminal book “The Law of Self Defense, 2nd Edition”.

Andrew conducts Law of Self Defense Seminars all around the country, and he has also launched a series of LOSD State-Specific Supplements that dive deep into every relevant statute, jury instruction, and court case that defines the law of self-defense in a particular state.

You can follow Andrew on Twitter on @LawSelfDefense and using #LOSD2, on Facebook, and at his blog, The Law of Self Defense.