For those of you who have read the book — this post should be fairly easy to navigate. If you have not yet read it — it might just be a little bit over your head. Either way, it’s still interesting — so here goes:
A new and interesting case, Smith v. State, 50 Fla.L.Weekly D1403 (Fla. 6DCA 6/27/2025), brings a new twist to the issue in self defense cases of being at “a place where you have a right to be” before using deadly force. F.S. 776.012(2). Of course, if you are not at such a place, then the “retreat rule” applies before deadly force can be legally used or threatened. In the Smith case, Mr. Smith had initially been invited to the neighbor’s property, but later when a disagreement arose, had been ordered off with a warning he was no longer welcome. Instead, a few minutes later he came back, and asked if he could retrieve some property he had left. The neighbors allowed him to come back for that limited purpose, but then another argument ensued, Smith was pushed out into the yard where he fell, and one of the neighbors, a man much larger than Smith, approached in a menacing way while Smith was on the ground. Smith, allegedly fearing substantial injury pulled out a gun and shot him. He was charged with aggravated battery. The opinion of the appellate court is really quite involved with lots of issues, and should be read by any attorney who handles this type of case – but the trial judge had found Smith was not at a place where he had a right to be – because of the earlier warning to leave, whereas the appellate court held that was a jury question, with a concurring opinion by one of the appellate judges noting some of the difficulties with that question on any retrial, and that a separate jury instruction on that issue would likely become necessary.
My analysis sort of mirrors both the majority and concurring opinions. I immediately saw the legal issue with “place where he had a right to be” – and the need for a special instruction on that – although if I were handling the case I would likely argue that being on the ground, and being rushed by a larger attacker made retreat “futile” even if retreat was legally required. But, the legal point here for everybody is this: If Smith had gone back, asked if he could retrieve his property, and been denied – he would definitely NOT be at a “place where he had a right to be”. And yet, because he was granted that concession [in law this is called a “limited license”] – he was, but only to the extent he remained within the implied terms of the license. So – does the fact that he got into another argument while retrieving his property put him back into needing to apply the retreat rule before using or threatening deadly force? My guess is “yes”. And quite frankly, I doubt his use of deadly force was either objectively or subjectively reasonable. But in this case – that’s a question that probably only a jury can resolve.
Thanks for the analysis. This case highlights the importance of Avoidance. Just because Florida law allows for the use of deadly force without the requirement of retreating first, doesn’t mean it will be the best strategy physically or legally. For this reason, I personally view Avoidance in two parts, pre-threat and mid-threat.
I implement several technics, strategies, which diminish and or end the threat of deadly force without using deadly force prior to the start of any threat of deadly force by a potential attacker.
And I use specific actions which inspire the attacker’s decision to avoid, cancel, their planned deadly force threat-attack without threatening to use deadly force which could result in committing aggravated assault.
It is my opinion that the element of avoidance, pre-threat conflict and mid-threat conflict, should be substantiated by the evidence I produce pre-scene and at the scene, should the pre-scene pre-conflict strategy actions not be successful. The in-scene mid-conflict conduct, both the attacker’s and mine, will be supported by proof of lawful non-deadly and deadly-force self-defense.