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Criminal Law: New York: Ordinary Defenses (Would a Florida “Stand Your Ground” Trayvon Martin defense work in New York?)

Based on the current information released by government and media channels, the short answer is NO. New York has strict rules concerning a citizen’s arrest when the citizen attempts to make that arrest without direction from a peace or police office.

New York Basics

Any citizen in New York trying to cause an arrest on their own does so at their own risk. A reasonable belief that some person has committed a criminal offense is not enough, the belief must be absolutely correct. If the belief turns out to be incorrect and the citizen attempts to make an arrest, that citizen can be charged with a crime. In New York, it is no defense that a person making a citizen’s arrest made an honest mistake.

Ordinary Physical Force – New York

A citizen attempting to make an arrest is justified in using ordinary physical force only when the citizen first reasonably believes that ordinary physical force is necessary for arrest or to prevent escape of the person the citizen reasonably believes committed the crime and that person is actually guilty of committing such crime.

Deadly Physical Force – Florida

Currently, the law in Florida is rather broad when granting citizens the right to use deadly force, outlined below are relevant portions of the statutes that authorize the no duty to retreat or stand your ground doctrines in relation to this topic. Pay particular attention to the definition of forcible felony, which really opens up the field for the use of deadly force unlike what is found in New York.

The relevant Florida statutes read:

776.012 Use of force in defense of person.—

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if: (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or (2) Under those circumstances permitted pursuant to s. 776.013.

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—

(3) 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.

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.

776.08 Forcible felony.—

“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Deadly Physical Force – New York

In New York, a citizen is only justified to use deadly physical force when they reasonably believe necessary to defend themselves or another against the reasonable belief of imminent use of deadly physical force; or to arrest an individual who is guilty of AND attempting to escape immediately after committing the felonious act of murder, manslaughter in the first degree, robbery, forcible rape or forcible sodomy.


Although there hasn’t been an arrest in the case of the killing of Trayvon Martin, and not to discount the possibility that there might be one in the not so distant future, the information released by the government and media outlets seem to point to the idea that under Florida law, Zimmerman is immune from criminal prosecution because Martin committed the felonious act of aggravated battery upon Zimmerman. A second argument of great bodily harm might also be made in Zimmerman’s defense under the statute. Further investigation into this matter may prove differently in the coming days, but an analysis of this released information under New York law would probably produce a different result.

Under New York law, the use of deadly force must be justified with a reasonable belief that imminent deadly force is at play or the other exception which is the commission of felony murder, manslaughter in the first degree, robbery, forcible rape or forcible sodomy, AND the the attempt of immediate escape thereafter. None of the information released thus far points to the idea that Zimmerman faced imminent deadly force from Martin, nor that Martin had committed any felony as required by New York law nor was trying to flee the scene after committing such felony, therefore in New York, Zimmerman would not enjoy the benefit of immunity from criminal prosecution or the stand your ground defense.

However, if the facts turned and there is evidence that Zimmerman faced imminent deadly physical force from Martin, the stand your ground defense could be appreciated in New York.

If you want to learn more about Michael A. Huerta, Attorney and Counselor at Law, or Huerta PLLC, a New York Law Firm, visit http://HuertaPLLC.com