Dave Koppel, a top 2nd-amendment scholar who is decidedly pro-firearm-rights, gives this analysis of the new FL self-defense law. As you can guess, he thinks it’s a very good thing. I do too.
The executive summary of the law, if you don’t want to read through this, is that in FL there is no longer a duty to retreat at all – at least in any place where a person has a legal right to be – basically anywhere where you’re not trespassing – which is a fairly large change – most states that have limited the duty to retreat only do so in a person’s own home or a person’s own car.
Florida’s New Self-Defense Law:
Florida Governor Jeb Bush recently signed Senate Bill 436, which expands and clarifies Floridians? self-defense rights against violent attackers. The bill was the creation of former NRA President Marion Hammer, who is also head of Unified Sportsmen of Florida, the state?s major pro-gun group. The NRA has announced that it plans to take SB 436 national, and urge other states to adopt similar measures.
Previous Florida programs created by Marion Hammer have done very well in other states. In 1988, her lobbying led Florida to enact ?Shall Issue? concealed handgun licensing legislation?so that any law-abiding adult with a clean record and who passes a safety training class may obtain a permit to carry a handgun for lawful protection. Before 1988, only a handful of states had Shall Issue laws; now, only a little more than a dozen states do not have such laws.
Similarly, Hammer invented the ?Eddie Eagle? gun safety program, which trains elementary school-age children not to touch a gun unless they are being supervised by a responsible adult. Eddie Eagle has been taught to millions of children, has won an award from the National Safety Council, and has been lauded by state legislature and city councils all over America.
So Florida-style self-defense rights may be coming to your state soon. Opponents of the law have made dire predictions about turning Florida into ?the Wild West.? Similar predictions were made about the Shall Issue law, and those predictions did not come true. If you read the actual text of the Florida law, it becomes clear that the new law simply codifies common-sense principles of self-defense, including the principle that violent criminals, not innocent victims, should be the ones at risk during a violent crime.
Let?s start with the Preamble:
[i]WHEREAS, the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others, and
WHEREAS, the castle doctrine is a common-law doctrine of ancient origins which declares that a person’s home is his or her castle, and
WHEREAS, Section 8 of Article I of the State Constitution guarantees the right of the people to bear arms in defense of themselves, and
WHEREAS, the persons residing in or visiting this state have a right to expect to remain unmolested within their homes or vehicles, and
WHEREAS, no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack,
Be It Enacted by the Legislature of the State of Florida: [/i]
Few people could disagree with the statements in the Preamble, which simply affirm existing rights, including the rights of innocent people not to be attacked.
The operative part of the law begins by setting forth the standard for use of deadly force against an attack in one?s home or one?s automobile:
Section 1. Section 776.013, Florida Statutes, is created to read:
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.–
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
In other words, a person may use deadly force against someone who unlawfully and forcefully enters a person?s home or vehicle. A victim may also use deadly force against a criminal who attempts to force a person out of her vehicle or home. Thus, if someone kicks down your front door in the middle of the night, or attempts to carjack you, you can use firearm or other deadly weapon to protect yourself. You do not have to worry that a prosecutor might second-guess your decision, and claim that you should have used lesser force against the violent intruder.
The bill makes several exceptions. The right to use deadly force does not apply against someone who has a right to be in the home or car (unless the person is the subject of domestic violence restraining order r a no-contact order). The right does not apply in child custody dispute. Of course the right does not apply if the person trying to enter the home or automobile is an identified police officer acting within the scope of his duties. Similarly, persons who are using the automobile or dwelling to commit a crime are not covered:
i The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
© The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle 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 entering or attempting to enter was a law enforcement officer. [/i]
Prior Florida law about self-defense allowed defensive deadly force only when the victim believed that no lesser force would suffice. The principle remains in effect in all self-defense situations in Florida, except when the attack takes place in the home or automobile; the legislative judgment was that attacks in a home or vehicle are so outrageous, and so threatening to the social order, that victims should be guaranteed that they will be protected from having their defensive decisions second-guessed in court.
Outside of the home or vehicle, a victim may only use deadly force when it is reasonably believed to be necessary. (So the victim continues to face a risk of prosecutorial second-guessing). However, the new law specifies that victims are not legally obliged to retreat anywhere:
i 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. [/i]
So if a gang tries to mug you while you are walking down a dark street, and you draw a gun a shoot one of the gangsters, a prosecutor cannot argue that you should have tried to run away. The prosecutor still can, however, argue that use of deadly force was unnecessary, because the victim could have used lesser force in the particular situation.
The next section of the law makes explicit one of the presumptions of the law?that violent invaders of the home or automobile are presumed to be intending to commit violent crimes after they enter.
i A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. [/i]
The first section of Florida Act concludes by defining ?dwelling? to include a porch which is attached to the dwelling, and to include temporary dwellings, such as camping tent:
i As used in this section, the term:
(a) “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
(b) “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
© “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property. [/i]
The second and third sections of the bill amend existing statutes, to make explicit the absence of an obligation to retreat. (Bold language is new; [bracketed] language has been repealed.):
Section 2. Section 776.012, Florida Statutes, is amended to read:
776.012 Use of force in defense of person.–A person is justified in using[the use of 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 [such] other’s imminent use of unlawful force. However, a [the] person is justified in the use of deadly force and does not have a duty to retreat only if:
(a) 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.
(b) Under those circumstances permitted pursuant to s. 776.013.
Section 3. Section 776.031, Florida Statutes, is amended to read:
776.031 Use of force in defense of others.–A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the [such] other’s trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. [/i]
The final section of the bill prohibits tort lawsuits against persons who act in conformity with the law. A criminal who sues a crime victim will be liable for the victim?s legal expenses. Police officers are not allowed to arrest a victim who defended herself, unless the officers have probable cause to believe the victim violated the laws:
Section 4. Section 776.032, Florida Statutes, is created to read:
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.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
Principled opponents of the Florida law can object to the bill because it allows deadly force against home invaders and carjackers, because crime victims are not required to retreat, or because criminals may not sue crime victims. In the United Kingdom, such objections would carry the day. Earlier this year, the Blair government defeated a move in Parliament to ease Britain?s severe restrictions on self-defense in the home, because, in the British government?s view, criminals also have a right to be protected against violence. Likewise, the British courts have allowed burglars to sue victims who used force against them.
But in the United States, social attitudes tend to favor the victim?s rights over those of the criminal. Most Americans would disagree with the idea that a mugging victim should be sent to prison because he didn?t try to flee, or that violent predators ought to be able to sue victims who shoot them.
As the Florida bill is introduced in other states, victims-rights opponents will probably be successful in getting newspapers and television to describe the proposal in very frightening terms. But when legislators and their aides read the actual text of the bill, many legislators will?like their Florida counterparts?conclude that bill is nothing more than some common-sense protections for crime victims.