Effect of "Stand Your Ground" Laws on Civil Injury Claims for Assault

An important distinction for a civil injury (and criminal) assault case is whether an applicable stand-your-ground law provides self-defense or immunity.

Stand-your-ground laws establish the circumstances under which a person may use force -- including deadly force -- in self-defense even when there is an opportunity to retreat. In the context of a civil assault case, if a state has some version of a stand-your-ground law, the defendant will either have a defense at trial or be immune from civil prosecution entirely. Let's take a closer look at stand your ground laws and how they might impact a civil assault injury case.

A Variety of Stand-Your-Ground Laws

Most states have some version of what would generally be considered a “stand-your-ground” law, but the extent to which the laws permit use of force and in what circumstances varies greatly from state-to-state.

Most states permit a person to use force to defend their home, including deadly force if the entrant is committing or attempting to commit a felony. Use of force, although not deadly force, is also typically permitted to defend other property, such as a car or something a person is carrying.

A majority of states also have stand-your-ground laws that state a person has no duty to retreat from a place they have a legal right to be.

For example, Florida’s stand-your-ground law states:

“A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.”

In other words, if a person is attacked or witnesses someone else being attacked, they can use the amount of force they believe is necessary to prevent the attack, regardless of opportunity for retreat.

A fewer number of states require a person to retreat from an attack if they have a reasonable means to do so.

Even in states with fairly wide-reaching stand-your-ground laws, a defendant that started the conflict with the plaintiff is typically required to retreat from the plaintiff unless imminent death or great bodily harm is threatened, or if the defendant clearly withdrew from the conflict but the plaintiff continued to attack.

Additionally, the defense does not apply to someone who was committing a crime when force was used or when the act of force was against a police officer that clearly identified him- or herself ahead of time.

Self-Defense v. Immunity

An important distinction for a civil assault case is whether an applicable stand-your-ground law provides self-defense or immunity.

“Self-defense” is what is referred to as an affirmative defense. At trial, instead of or in addition to saying she didn’t commit an assault, the defendant “raises the affirmative defense” of self-defense and argues that she was justified in committing the assault. Depending on the circumstances of the case and the law of the state, a successful self-defense argument will either win the intentional tort case outright for the defendant, or reduce the damages she is required to pay.

“Immunity” refers to a complete protection from being sued in the first place. In the context of a criminal assault case, this typically means the police can investigate the assault, but cannot arrest the defendant unless there is probable cause the use of force was not permitted under the stand-your-ground law.

In a civil assault case, if a judge finds that the defendant is immune under the state’s stand-your-ground law, the plaintiff will be forced to pay the defendant all of the expenses the defendant incurred defending the law suit (e.g. attorney fees, court costs, lost income).

Talk to a Lawyer

Need a lawyer? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you