Using Proportional Self Defense Legally

Florida Use of Force Statute 776.012 Deadly and Non-Deadly Force Wordings Examined

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Today’s Lawful2Shoot? Focus:  A Comparison of The Florida Non-Deadly Force and Deadly Force Statute Wording and Meanings.

In part one I addressed the usage of the word “Threatening” in the 776.012 statute. Today in part two we will address the words “Using Force Necessary to Defend” in non-deadly scenarios and “Using Force Necessary to Prevent” in deadly force, great bodily harm, and forcible felony scenarios.

In Florida’s Use of Force Statute 776.012 subsections (1) Non-Deadly Force, and (2) Deadly Force, there are different words used to instruct on how to lawfully proceed when encountering a non-deadly and or  more serious threats of extreme violence up to deadly.  It should be noted that both ‘states or levels of violence’ can become the other i.e., non-deadly to deadly and deadly to non-deadly during the same violent encounter. And it is this ‘transition period’ as well as the ‘initial decision period’, where mistakes occur in determining the ‘imminent threat level’ you’re facing, which often results in felony charges.

The fact that you must accurately determine the correct proportional response when an imminent threat is suddenly imposed on you, or changes levels as you lawfully respond, is a very demanding legal responsibility. In fact, in many deadly force instances, it is impossible to determine the exact level of force threatening you while it is occurring. And if you survive and or prevail victorious in your defense, there will have to be ‘proof’ that your reasoning and subsequent proportional force was a necessary act in lawful self-defense.

Here are the two subsections of the statute which I have edited and added emphasis for the purpose of focusing on the differences between the two subsections’ wording, and how their meanings differ. 

Please note the two sections within each subsection; marked by bold font as opposed to standard font. And also note the specific words within the bold and standard fonts which I have put in italics.

776.012 Use or threatened use of force in defense of person. —

(1) A person is justified in using or threatening to use force, except deadly force, when and to the extent that the person reasonably believes that such conduct is necessary to defend against the imminent use of unlawful force.  A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.

(2) A person is justified in using or threatening to use deadly force if they reasonably believe that using or threatening to use such (deadly) force is necessary to prevent imminent death or great bodily harm or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

As I stated in last week’s article, If you follow this law to the letter, you will greatly increase the odds of being seriously injured or killed, or you’ll end up possibly being guilty of an aggravated assault with a deadly weapon or be judged as engaging in mutual combat. In both cases you would lose the legal claim of self-defense.

The qualifiers imposed by the lawmakers in the statute are ambiguous by design, and are intended to enable and promote various interpretations, which are then applied in various situations at differing degrees, which result in the creation of multiple meanings and definitions, individually constructed within jurisdictions throughout the state— Florida Case Law is created and becomes the legal doctrine and standard you’ll be judged with.

Therefore, prosecutors have a great deal of latitude in their interpretation of the wording. And just as much latitude in defining and applying them to your act of self-defense. Without a highly experienced defense lawyer in Use of Force and Self-Defense Laws, the odds of winning the legal battle are very poor. The more money you can pay for legal counsel, the greater the odds you will experience the best possible outcome.

I would like you to note that both subsections provide the words Use and Using, in both non-deadly and deadly force situations. These two words address ‘the act’ in both levels of force, and ‘the action’ in both levels of force---two separate entities of legal force.

The law is worded this way in order to distinguish between the two phases or levels of force in order to judge if there was legal justification. First, were there legal grounds to threaten an act of force, and secondly, was the level of actual imposed force proportional. And this two-step analysis will be used within the wording, “necessary to defend against imminent non-deadly unlawful force,” or “necessary to prevent imminent death, serious bodily harm, or a forcible felony”.   

So now that I have hopefully provided clarity as to how the state applies this statute to both levels of force, let us address your part in implementing the law in a situation of extreme jeopardy and stress.

In self-defense use-of-force situations the victim has the legal responsibility to decide if the force being imposed on them is non-deadly or deadly in nature. This is much easier said than done because each person differs greatly both physically and mentally and will perceive a threat of force differently, because individuals rarely are equally capable physically and mentally.

This is why the law is worded in a general way, as to provide great latitude in its application by the legal system to the criminal element of society—the law was not constructed for law abiding people. And therein lies the legal dilemma for the law abiding citizen, meaning, the law is so ambiguous that anyone can be proven guilty by subjective analysis, interpretation, and application. None of the members of the legal system were there when you had to decide to use deadly or non-deadly force when you reacted to a threat forced on you within a fraction of a second.

Violence has one purpose, and that is to suddenly impose an overwhelming imposing hostile influence which cannot be stopped. It is almost always a physical act designed to cause mental impairment resulting in mistakes in judgement intended to lead to total surrender as quickly as possible.

So, using the wording of this statute, the words Use and Using when it comes to applying them in an imposed force level situation, do not and cannot, account for the natural reality of violence. In fact, to impose definitions on acts of violence by using just two levels or phases of that violence is an injustice in and of itself.

As if a responding officer, crime scene detective and investigator, prosecutor, judge and particularly a jury (which are selected for their ignorance and inexperience of the case they’ll be judging so that they can be more easily influenced by the prosecutor) can actually arrive at what you exactly faced in the moment of crisis by using forensics, witness testimony, crime scene photos, or even your testimony wording which your lawyer should provide as evidence.

To put your own ‘threats to use’, or ‘using force,’ deadly or non-deadly, into the correct words which convey ‘exactly’ what happened to you, is not easily achieved. There is a reason police officers involved in violence are allowed, in fact commanded, to not provide statements of their actions until they have had time to process what they experienced for at least twenty-four hours. The reason, their stories change due to human nature which underwent extreme graphic unnatural sudden surprise violence.

Can words really accurately describe, define, and convey the actual truth of almost deadly and deadly acts forced upon you in a faction of a second? Or even in ten seconds?? Or even several minutes? And one could make a very reasonable argument, that because the violence threatened or used on you took so long, such as ten minutes or more, resulting in mental damage and or physical damage, the more words can never do what happened any justice at all.

But here we are, we have been forced to decide what level of force to use when we have no experience at all in attempting to do so, because we’ve always been law abiding and up until this one violent situation, we’ve been successful. Now, unqualified people are going to determine if I should be designated as a criminal?

Back to the letter of the law.

The word Using refers to the manner and extent, or your level of force used, which is determined by the evidence collected during the investigation. And the Using of whatever level of force, will be evaluated from the perspective of the attacker’s force toward you, and then from your perspective to ‘defend’ in non-deadly cases and to ‘prevent’ in deadly cases.

The word defend implies there are non-deadly violence allowances for the victim (you) to employ; enough force to minimize, restrict, or stop the unlawful force imposed. And the word prevent incorporates all the levels of non-deadly defensive force and additionally authorizes lethal force violence necessary to stop serious injury, forcible felonies, and or death----but only if you’re lawfully in the place of this conflict, and acting lawfully prior to using which ever level of force you reasonably believe is proportional.  

Again, this bears repeating. The law is straight forward in language but the interpretation and application is anything but straight forward. Both will greatly differ from attacker to attacker and from defender to defender.  Add in your memory and wording, the attacker’s lies and deceptions, (which he is highly skilled in claiming is the truth), and the unqualified inexperienced legal system, what are the correct words to describe your odds of experiencing justice? What if there is a racial component to the case?

Therefore, T H E R E F O R E, ‘Proportionality of Force’, threatened or used, is a very fluid subjective element of any self-defense event and there is no investigator, prosecutor, judge, nor jury which can accurately determine exactly what you the defender experienced in the moment of jeopardy, especially deadly jeopardy.

The legal system uses evidence collected from the scene and evidence acquired through Investigation. And it might not represent The Truth and could even mask or obscure, distort, or counter what actually happened. The ability for society to objectively reason anything is rapidly declining, in fact it is a rare commodity in the realm of the legal system. And I would further argue that ‘Objective Reasoning’ has been replaced by societal illness, which only produces injustice, which in turn fosters greater corruption.

Therefore, it is more imperative than ever that a lawful moral conceal-carrying firearms owner needs the ability to preserve as much evidence of their actions as possible. But remember the more evidence there is of your actions, the more your actions must be lawful, as judged by the legal system. Again, I suggest you start with the underlying premise that what you will be dealing with is a decaying and declining legal system which has a high level of corruption that has been accepted from within as, “OK”.     

To produce good exculpatory evidence, we must always plan and practice the art of lawful self-defense from a worst-case scenario and work upward or toward a better case scenario, which is only made possible by starting from a worst-case scenario; exposing failures to fix until you fix them all.

By handling every possible negative, you automatically reveal the positives present and establish the positives which must be created.  Like planning to have a rogue activist prosecutor and judge and then securing a way to pay for the best legal defense in the nation is the best plan to have when addressing worst case legal nightmares. This preparation provides the best incentive to work hard to become proficient in threatening or using forced in a split second; lawfully using deadly or lesser force.

By planning in this manner, you’ll gain the disciplines necessary to act lawfully and thereby provide your lawyer with good facts and proofs from your lawful use of force event.   

In order to provide your legal counsel with all the tools necessary for them to protect you from the worst-case legal scenario you must provide evidence, the more the better. Eyewitnesses are a good start, whether the witnesses agree with what you did or not, you will need to know the total picture of what you are facing. Physical crime scene items and characteristics, forensics, all need to be understood and planned for.

However, video of the violent attack is really the best evidence to have in proving lawful self-defense. But even video cannot account for what the human eye translates in the moment of extreme duress and emotional trauma when the force turns deadly. But a video offers the best evidence especially when the camera is mounted on the firearm’s rail along the barrel. Having a front row seat at the end of the gun is a very good perspective to have when determining the truth.

But all the planning and practice in the world will only result in producing good evidence if you accurately determine what a true deadly force threat is to you in that moment of crisis. Again, one defender’s deadly force determination, is not going to be another’s deadly force determination. A young well-conditioned person will perceive a threat of a lethal force completely differently than a ninety year old grandmother in a wheelchair suffering from acute arthritis and cataracts.

The Reasonable Belief to use force, for each person, will depend on their physical abilities within the environment they are in.

There are many scene factors which you must understand and be able to cause others in the legal system to understand, in order to have the ability to produce proof beyond any reasonable doubt that you acted in lawful deadly force self-defense. A video from your perspective is the best tool to achieve that. But you must know your ability to remain lawful during the stress of violence.

Let us consider the other side of the deadly threat situation.