Can you now kill a retreating attacker? Maybe!

For those of us that have taken classes or studied Use of Force, we know it is generally the case that when an attacker is retreating, it is unlawful to use deadly force against the attacker. Instead, we should just let the guy go and report the attack to the police. Now it seems someone used deadly force against their attacker, and while they are claiming that the gun went off accidentally (Yea, right!), although the trial court didn’t buy their argument, the appeals court did.

Please understand that I do not recommend that you use deadly force against someone that is trying to escape. This being stated, the court ruled it lawful in this situation and we are reporting the decision. It’s always possible that this ruling will be overturned.

The First District Court of Appeals published a unanimous opinion today declaring that should a person legally use deadly force, in self-defense, against an attacker that is possibly retreating, that person is immune from prosecution under Section 776.032(1) Florida Statute.

In this case the attacker unlawfully entered the victim’s car. The attacker’s acquaintance tried to remove the attacker from the car when a fight broke out in the car. The victim had a concealed handgun under his seat, and a License to Carry a Concealed Weapon or Firearm. As the attacker’s friend tried to remove the attacker from the victim’s car, the victim shot the attacker. The victim contends he was only trying to strike the attacker with the gun, and it accidentally discharged. The attacker died.

The trial court ruled that statutory immunity was irrelevant in matters where the victim was attempting to use a firearm as a “club” and it accidentally discharged. Since the court found there were disputed issues of material fact, pretrial immunity could not be granted.

The First District Court of Appeals addressed the “Stand Your Ground” law in the 2008 case of Peterson v. State, where it analyzed sections 776.013 through 776.032, Florida Statutes. Section 776.013(1) states,

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

The following facts of this case are not in dispute: The attacker had unlawfully and forcibly entered a vehicle occupied by the victim. While the attacker may have been being pulled out of the vehicle at the time of the shooting, the action was involuntary if it occurred at all. The physical evidence was clear that the attacker was still inside the vehicle when he was shot. The Court then stated that the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.

Once again, the statute makes no exception from the immunity when the attacker is in retreat at the time the defensive force is employed.

The victim was aware that the attacker had unlawfully and forcibly entered the vehicle when he was shot. The victim was therefore authorized by section 776.013(1), Florida Statutes, to use defensive force intended or likely to cause death or great bodily harm and was immune from prosecution for that action under 776.032(1).

The Attorney General’s Office seems to disagree with this ruling. The ruling was unanimous, and I’ll be surprised if the Florida Supreme Court changes the ruling.

In the meantime, tread carefully with this one. I do not recommend that you use deadly force against someone that is retreating.