Legal Q&A with Jon Gutmacher, Author of Florida Firearms: Law, Use and Ownership

LEGAL Q&A

Question: Let's say you're leaving a store or restaurant or any place like that. You are approached by someone who wants to start a physical altercation. He approaches you and starts swinging. You invoke your right to use non-deadly force and not attempt a retreat. You use a self defense chemical spray, or just a punch or any other type of non deadly force. At that point he is briefly incapacitated, falls to the ground, or turns around. If he's on the ground, he rolls over and pulls out a gun. Or if he turns around, he then turns back around facing you and has a knife and starts toward you. You are now in danger of serious harm; you reach for your pistol and shoot him. Would this be considered two separate situations, or would you be liable because you did not attempt to leave, and if you had attempted, you may have been successful and thereby put an end to the whole situation? Basically the raw question is: Does the use of non-deadly force, instead of retreating from a potentially violent encounter for which the use of deadly force would usually not be proper, lock the victim from using deadly force at any time, despite changes in the nature of the altercation by the aggressor, because of his initial choice to stand his ground and use non deadly force, especially when he has no reasonable way of knowing the situation would escalate so?

Answer: If you were not the initial aggressor, then the fact that you chose to defend yourself with non-deadly force rather than retreat should not affect a subsequent use of deadly force caused by the initial attacker's attempt to use deadly force against you. However, the question will still remain: whether your later use of deadly force was reasonable, and whether you could have reasonably retreated at that point. On the other hand, your example plays on an interesting truism: if you engage in meeting force with force, an escalation in the situation is not unusual – which may get you in deeper than you expected. In this day and age, the police often arrest everyone involved, in even minor disputes. Why take the chance if it can be avoided? Macho is not very smart, anymore.

This column is not rendered as legal advice. If you have a specific factual situation that affects you, an attorney skilled in this area should be consulted. Return to Legal Q&A list

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