Legal Question in Criminal Law in Florida

This question refers to Fl statutes 776.041 Use of force by aggressorMy understanding is as follows, I am looking for confirmation or refutation of that understanding as well as a few additional details.

********(save having to look it up) 776.041 Use of force by aggressor

The justification described in the preceding sections (justifiable use of force) of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) 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; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

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*Taking all interpretive elements out: Person A provokes person B in a way that meets the statute:

-Person B grabs a bat and says he's going to kill person A, person A has the opportunity to safely retreat but instead shoots person B.

-Will person A be persecuted?

-Does it matter that it was illegal for person B to grab a bat and threaten person A (assume the provocation was not of a deadly nature) Until force is actually used is person A still on the hook to "exhaust every reasonable means to escape such danger other than the use of force "

*Same scenario but instead the provocation is person A punched person B in the face. Person B grabs a bat and threatens, person A shoots person B despite having a means of retreat.

-Does hitting someone "count" as provocation? Presumably yes?

*Same scenario, but person A waits until person B smacks him in the head with the bat, and then person A shoots person B.

-Person A is in the clear because person B is now the aggressor for using deadly force, which is excessive against a punch in the face, and is now considered the aggressor?

Additional questions:

*Is there a good definition for "provoke" Could something like flicking someone off or cutting them off in traffic be considered by a prosecutor to be provocation?

*Does "provoking" someone nullify your right's under the castle doctrine, IE you provoke someone from within your house or car and they come in as a response.

*Maybe some links to case law that helps to define what is and isn't "provocation"?


Asked on 2/07/12, 2:05 pm

1 Answer from Attorneys

Craig Epifanio Craig Epifanio, P.A.

Only a prosecutor can ultimately decide whether a person will be prosecuted in the situation you describe. The judge can sometimes make the decision whether the prosecutor should or should not file in a particular case. Additionally, I'm sure you can find an attorney to do the legal research you requested. There is a reason an attorney charges anywhere from $200 to $500 per hour and it's because you hire them for their legal knowledge and experience. If you wish to do that, call an attorney in your area.

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Answered on 2/07/12, 3:12 pm


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