T Nation

New FL Self-Defense Law

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.

http://www.volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116516262

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,

NOW, THEREFORE,
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.):
[i]
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.

When I heard about this, I thought. This has got to be one of the most rediculus things I have ever heard.

What’s next.

After reading your post it is much clearer to me. I do agree that if some punk ass breaks into your house you are going to protect your family, yourself, your possesssions, etc.

I do however think that the street clauses are the most dangerous. Does this not give legal justification to carrying a firearm on you at all time? I mean, for the most part I would assume that most people don’t walk around on the streets with handguns. Now, it would seem to most people who did not read the laws that they can carry a gun legally. I mean, you’d be stupid not to have one. What if someone mugged you. If you didn’t have a gun, why would you wait for the mugger to pull one out before you had to make the decision.

Maybe I read this wrong or don’t understand. I would think that most people would misinterpret these laws anyways, thus leading to more and more guns on the street and a much higher amount of gunplay b/c of the misunderstanding.

I would be worried about this greatly, as I was the unlucky victim of gunplay on a busy street this past month. It has led me to think why anyone aside from law enforcement has guns. Why do you need one walking down the street. What is the purpose. If the playing field is level say with knives, or only with fists, you have as equal a chance as you would with a gun. One stab, could kill you, one well placed punch can kill you. Why do we have guns in the hands of thugs that think it’s cool and “gangster” to carry one. What are they hoping to accomplish?

In my case, I was across the street. According to the police, the altercation was regardign drugs and the people knew each other. One pulls a gun, and the other pulls back, shots are fired and before I know it, I’m on the ground 4 in the afteroon with a 9mm shell an inch from coming out the front of my leg. I don’t disagree with the most of the bill from what I’ve understood. But the fact that thsi has the potential for more situations like I was involved in, means that the average person shall live in more fear as they walk on the street.

Thankfully, I still have my leg, thankfully I didn’t bleed to death on the street, thankfully it didn’t kill any children or go through my legs and injur someone else. 3 innocent people got shot that afternoon, none of which had anything to do with the two people who knew each other and were in essence using a type of equal defensive force.

From a government PR standpoint coupled with the misunderstanding in the general populous, I don’t know that passing this law with NRA was the best idea.

Once you are put into this situation you’ll find yourself looking at the world in a very different way. I wouldn’t suggest getting shot, it’s no picnic.

I also realize your a lawyer and should come back with some clarification that makes sense. If I’m misinterpreting then please clarify for me.

Thanks

T

Old but still cool. Needs to be done in MD. Too many damn gangs around here.

Trev,

FL already has a conceal-carry law – it’s been on the books since 1988, and basically any adult who doesn’t have a criminal record can get a conceal-carry permit after taking a safety class and filling out an application. So I don’t necessarily think this law would increase or decrease the number of people who carry guns.

This law only deals with a revision of the self-defense law. It makes it so you don’t have a duty to retreat before you can defend yourself if you are threatened outside your home or car with what you resonably perceive to be a forcible felony.

This sentence from 776.031 addresses this issue:

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.

So I suppose one could argue that this would make it more likely that someone carrying a gun would use it, but I think the requirement that you need to reasonably perceive that you are being threatened with violent crime would keep things from turning into a Wild West type situation. And I think it will make the incidence of violent and personal crime go lower – criminals will be less likely to threaten people directly who may be armed and have the knowledge that they can protect themselves. (Of course, this isn’t to say crime will go down – they’ll probably move to more non-confrontational property crimes…)

I personally think the last section of the law is very important too, as it places the burden of the police establishing a reasonable belief of UNLAWFULNESS before a person can be arrested, and makes it so criminals can’t sue you if they are injured after you prevent them from attacking you:

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).

The new law is unnecessary, there hadn’t been any call for it. The retreat first concept hadn’t gotten anyone killed or even put in a more hazardous postion. I must assume its more politically driven bullshit, this from a concealed-weapon permit holding FL citizen.

I can’t imagine the law ever saying I have to turn and run if some punk threatens me. That just makes no sense. Was it actually a law that you had a duty to retreat, or was it just common law?

[quote]Big Dave56 wrote:
The new law is unnecessary, there hadn’t been any call for it. The retreat first concept hadn’t gotten anyone killed or even put in a more hazardous postion. I must assume its more politically driven bullshit, this from a concealed-weapon permit holding FL citizen. [/quote]

That’s quite a claim to make. I wouldn’t really know myself, but to flatly claim that it has never resulted in anyone being put in a more hazardous position is pretty broad. Do you have any info that would back that claim?

Personally, as I said, I think the best part of the law was the last part.

[quote]doogie wrote:
I can’t imagine the law ever saying I have to turn and run if some punk threatens me. That just makes no sense. Was it actually a law that you had a duty to retreat, or was it just common law?[/quote]

It was based in common law, but it had been converted to statute a long time ago in FL.

I don’t know what Texas has on its books, but a lot of states have duties to retreat that are attached to self-defense laws. The most egregious have duties to retreat that actually apply when you are in your own home.

I have no problem with the second amendment and gun ownership. I think gun control is a bad joke. I have no problem with people being able to defend themselves inside their home.

I do think however that this law goes too far and is going to cause a liberal backlash against gun rights, that will leave us in the same ridiculous situation as the British.

The highest form of self defense is evasion. If you can easily remove yourself from a situation and go to a place of safety then that person is not a threat requiring deadly force.

The real problem I see with this law is the provision for someone inside a car. The new law doesn’t just provide for self defense against an armed carjacking (which I don’t have a problem with) it allows you to shoot someone who is unarmed and on foot when you could have easily put it in gear and drove off.

I’m also not comfortable with the provision for protecting property. I don’t think shooting someone over property is right, I would consider such an act to be most unchristian.

They have such a law in Texas that has led to some people getting shot who didn’t need shooting.

One that I saw on tv was a auto repo man who was killed doing his job. The shooter had lied in wait so he could ambush the man and he got away with it.

Another case I’ve seen was a British tourist who was drunk, who for reasons unknown had jumped out of a taxi in a neighborhood and run around a house a few times. The homeowner came out of his house and shot and killed him. The homeowners justification to the police was he thought he was going to take his property and that was the end of it.

This homeowner was safe inside his home and could have easily called the police and had them deal with it. But instead he went outside his home to kick some ass with a gun.

This Texas law was written when people rode horses. It was a time when stealing a persons horse out in the desert was almost a certain death sentence. That is not the case today. We have cell phones and 911.

I think this law is going cause simple arguements to escalate into deadly violence. Because people are being told they no longer have to back down and try to settle things peacefully. Now they are being told if you want to kick some ass with a gun go right ahead.

One thing is for sure. With all the extra gunfire, it will just be a matter of time before an innocent bystander (probably a child) will catch a round that wouldn’t have needed to be turned loose into the neighborhood if someone would have swallowed their pride and backed down.

Jed Bush and his supporters have shown themselves to be seriously ignorant rednecks with this one.

[quote]BostonBarrister wrote:
doogie wrote:
I can’t imagine the law ever saying I have to turn and run if some punk threatens me. That just makes no sense. Was it actually a law that you had a duty to retreat, or was it just common law?

It was based in common law, but it had been converted to statute a long time ago in FL.

I don’t know what Texas has on its books, but a lot of states have duties to retreat that are attached to self-defense laws. The most egregious have duties to retreat that actually apply when you are in your own home.[/quote]

I’d take my chances with a jury over a thug any day.

I would love to know what a self defense expert like tim larkin, would have to say about this.
I would imagine that in most assault situations, you simply would not have the time to un holster your weapon, take off the safety, aim it, and make a good shot.
This law assumes that most violence is predictable, which it is not. Violence just kinda happens to you, it doesn’t give you time to plan or predict.