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November 5, 2014 |
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Why Do You Own Or Carry A Gun? |
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Dear Members,
We want to hear your stories and your feedback, tell us: why do you own and/or carry a firearm and what do your Second Amendment rights mean to you? The more responses and feedback we receive, the better we will be able to serve you, our members. We look forward to your responses.
Sincerely,
Dave Donchecz
Vice President of Member Services
To answer Dave’s question, simply click here or the photo above and respond in the comment section. Remember, you may need to be signed into your Facebook account to share your response. If you aren’t following U.S. Law Shield on Facebook, now is a perfect time to do so, simply click the “Like” button at the top of the U.S. Law Shield page for daily content regarding gun news and law changes across the country. We appreciate that some members don’t feel comfortable posting publically that they own firearms; please feel free to still share what it is you think the Second Amendment means or is intended to do or email Dave Donchecz at dave@uslawshield.com.
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Florida Gun Law: The Castle Doctrine |
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For a man’s house is his castle, and each man’s home is his safest refuge – Sir Edward Coke 1628 (Institute of the Laws of England)
Dear Members and Friends:
If you have watched the news on TV or read a newspaper, you may have heard the phrases “Castle Doctrine” and “Stand Your Ground” in reference to self-defense laws. There has been considerable debate about just what these laws are and how far they allow someone to go in protecting themselves, their homes, and their family. Unfortunately, not every news outlet or blog writer is as informed about these legal concepts as they could be.
The purpose of this article is to introduce these important legal concepts to you, and explain them clearly enough that you will be better prepared in case you ever need to protect your family, home, or self from danger.
What is the Castle Doctrine?
The phrase “Castle Doctrine,” is a simple description of a complicated state law. However, the phrase is not actually found in the applicable state statutes. The concept of the Castle Doctrine comes from the philosophy that every person is the King or Queen of their home, and as such, is entitled to certain privileges to which others are not entitled. In the context of firearms self-defense law, it generally means that a person is presumed to be reasonable in their use of, or threat to use, force against an unlawful intruder. Florida Statute §776.013 is Florida’s version of the Castle Doctrine.
Florida’s Castle Doctrine affords you legal protection by giving you a presumption of reasonableness when, while protecting your “castle,” you use or threaten to use defensive deadly force against an unlawful intruder under certain circumstances. In effect, if you know or have reason to believe that a person has or is trying to unlawfully and forcefully enter your dwelling, residence or occupied vehicle, or if a person is unlawfully and forcefully removing or attempting to remove you or another person from your dwelling, occupied vehicle or residence, then Florida law gives you the legal presumption that your fear of imminent peril of death or great bodily harm is reasonable, and the use or threatened use of defensive deadly force is legally justified against that person.
Note that the definitions of “dwelling,” “residence” and “vehicle” are relatively broad as they apply to the statute. A dwelling is defined as 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. A residence is a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. Lastly, a vehicle is a conveyance of any kind, whether or not motorized, which is designed to transport people or property. As you can see, Florida’s Castle Doctrine is far-ranging, applying to everything from your family home, to a mobile home, to even a tent while you are camping!
Does Florida’s Castle Doctrine Apply to Mere Trespassers?
No. As discussed above, it is legally presumed that your fear of imminent death or great bodily harm was reasonable and that your use or threatened use of defensive deadly force is justified if you know or have reason to believe that a person has unlawfully and forcefully entered or is entering into your dwelling, residence or occupied vehicle, or if a person is removing or trying to remove you from your dwelling, occupied vehicle, or residence. This list excludes trespassers who merely step onto your property without permission. Further, just because an intruder unlawfully enters into your detached garage or shed, you are not necessarily free to use or threaten to use deadly force to get them to leave, unless the building is designed to be occupied by a person lodging there overnight. Be sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use or threaten to use deadly force against someone just because they are on your property. This could result in both criminal charges and a civil lawsuit, things you would be better off without!
You do have a legal right to forcibly exclude or remove trespassers from your land, however, you are limited to using non-deadly force to do so. Florida Statute §776.031(1) states that if someone trespasses on and/or is engaged in criminal or tortious interference with your property other than a dwelling, you are justified in using or threatening force against that person when and to the extent that you reasonably believe that it is necessary to prevent or terminate the person’s trespass or interference. You are not justified in using or threatening to use deadly force in this case!
What If A Trespasser Starts Committing Other Crimes?
If a trespasser has more nefarious motives for being on your property, a mere criminal trespass or act of interfering with your property may evolve into a more serious crime where you could be justified in using or threatening to use deadly force to protect your property. Florida Statute §776.031(2) allows a person to use deadly force or threaten to use deadly force against a trespasser who goes beyond being merely present or is interfering with your property. Specifically, if you reasonably believe that the use of deadly force or a threat of deadly force is necessary to prevent a trespasser from committing or the imminent commission of a forcible felony, you may use or threaten deadly force. Examples of forcible felonies include arson, burglary, murder, or manslaughter.
Once again, however, if a trespasser comes onto your property, refuses to leave, and is not committing or attempting to commit any forcible felonies, you are likely not justified in using or threatening to use deadly force to remove the trespasser from your property. You may be justified in using reasonable and appropriate physical force if the trespasser is trying to steal something, but you may not be justified in shooting your firearm at the trespasser!
Can You Be Criminally Prosecuted Even If You Were Justified?
Florida Statute §776.032 states that a person who uses justified deadly force or threatens to use deadly force against an intruder in the circumstances above is immune from criminal prosecution and civil action for the use or threatened use of such force. This means that if your use of deadly force is permissible in the criminal law context, you cannot be arrested, detained in custody, charged or prosecuted as a result of that use of force. A law enforcement agency does have the power to use standard procedures to investigate the use or threatened use of force, but they may not arrest you unless it is determined that there is probable cause that the force or threat of force was unlawful and not justified.
In a civil law context, this statute means that you are immune from liability for a civil action initiated by the person, personal representatives, or heirs of the person against whom you used force. If you do happen to be wrongfully sued by a criminal who is trying to collect damages from you because of your use of force or deadly force, and you are found immune because your use of force was justified, §776.032(3) allows you to recover reasonable attorneys' fees, court costs, compensation for any loss of income, and all expenses incurred in your defense of the suit from the the people who sued you. Remember, anybody can sue anyone for anything! It is your duty to assert and prove the immunity defense in court.
Florida’s Stand Your Ground Law
Unlike a number of other states, the phrase “Stand Your Ground” is found in Florida statutory law. Florida law tells us that, under certain conditions, there is no duty to retreat if you are faced with a situation where you have to use force or deadly force, or you have to threaten to use force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not necessarily have to. Florida Statutes §776.012, §776.013 and §776.031 state that you have no duty to retreat and have the right to stand your ground and meet force with force if you are qualified to use force under each of the statutes. You have no duty to retreat and may use deadly force, if you are 1) not engaged in criminal activity, and 2) are in a place where you have the right to be, including your dwelling, residence, or vehicle.
Although this statute is classified as a “Stand Your Ground” law, it is better understood as a “No Duty to Retreat” law. Under these very limited circumstances, a prosecutor or law enforcement officer cannot argue that you had a reasonable escape route or that you should have had to fall back before justifiably using force or deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!
Qualifying To Use Force or Deadly Force
While you are not necessarily required to escape or retreat before using force or deadly force, it is imperative that you are justified in using it. Florida Statute §776.012(1) states that force or threats of force used in defense of yourself or another person are justifiable when you reasonably believe that such force is necessary to defend against another person’s imminent use of unlawful force. Florida Statute §776.031(1) provides an additional circumstance in which you may use force - to prevent trespass or tortious interference with your property as mentioned above. You are justified in using or threatening deadly force if you reasonably believe that deadly force is necessary to prevent imminent death or great bodily harm to yourself or another person, to prevent the imminent commission of a forcible felony, or as provided under the Castle Doctrine.
To put it plainly, you have no duty to retreat and have the right to “stand your ground” and use force if you meet any of these conditions for the use of force. In addition, you have the right to use deadly force without retreating if you meet the requirements for deadly force and you are both not engaged in criminal activity and are in a place where you have the right to be, or you are attacked in your dwelling, residence, or vehicle.
An important restriction is that you may only use such force or deadly force as you reasonably believe is necessary to defend against another’s imminent unlawful force or forcible felony, or to prevent imminent death or great bodily harm. This means both that the threat against you or another person must be imminent, and that your level of force should not be higher than necessary to protect yourself from the undesired act.
As an example, suppose that you are at baseball game, enjoying a nice day out at the ballpark with your family, when an intoxicated fan, angry at the fact that his team just got scored against, begins yelling obscenities from his seat behind you. When you turn around and politely ask the man to stop cursing, he gets belligerent, starts threatening to “whoop” you, and pulls back his fist as if to cold-cock you. In this case, you may be legally justified in using physical force against the man, if you reasonably believe it is necessary to use force in order to defend yourself against the aggressor’s imminent use of force. However, you would not be justified in later following the man out to his car in the parking lot and initiating a fight with him over his insults. Likewise, you would most likely not be justified in pulling out your firearm and taking a shot at him just because he was belligerent, as this level of force would probably not be necessary to defend against the force.
Disqualifications from “No Duty to Retreat” Protection
There are a number of situations where your conduct may disqualify you from being able to use force or deadly force. If you fall under one of the following situations, your use of force or deadly force against another will not be justified, and thus you will not be protected under the “Castle Doctrine” of "Stand Your Ground" statute:
- You will not be justified in using force if you use it while attempting to commit, are committing, or are escaping after the commission of a forcible felony you perpetrated.
- If you initially provoked the use of force against yourself by the person whom you subsequently used force against, your use of force will not be justified. However, if the force against you is so great that you reasonably believe that you are in imminent danger of death or great bodily harm and that you have exhausted every reasonable means to escape the danger other than the use of deadly force, you may be justified in using force or deadly force against the person. Additionally, if you withdraw from physical contact with the assailant and clearly indicate that you desire to withdraw and terminate the use of force but the assailant continues using force, you may be justified in using force.
- You may not use force or deadly force against another person if the person is the lawful custodial parent, grandparent or guardian of a child in your home.
- Force may not be used or threatened against a law enforcement officer who has identified himself or herself and enters your home or vehicle during the performance of his or her duties and you knew or should have known that the person was a police officer.
Conclusion
As you can see, the Florida versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with simple catch phrases. These topics consume thousands of pages of legal treatises and continue to be a huge part of many lawyers' careers, so obviously this article is only a brief overview. We hope, however, that this newsletter provides you with a better understanding of both of these legal topics. If you have any questions about these or other Florida firearms laws, please do not hesitate to contact us, and we will be happy to help.
DISCLAIMER
Members and friends please keep in mind that each circumstance may be different and although this is a general discussion of the law, it should not be considered legal advice for you or any other situation. If you have any legal questions make sure you contact a licensed lawyer, or, members better yet, if you have a question we can get you in contact with one of our independent firearms program attorneys who will be happy to answer your firearms questions.
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Featured Seminars: Members, Join Us and Bring a Friend |
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U.S. Law Shield is proud to host informative Gun Law Seminars and Workshops all over the State of Florida. Come join us as our independent program attorneys and firearms experts separate legal fact from fiction.
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KISSIMMEE
Sponsored by Dragon Fire Armory
Thursday, November 6, 2014
Time: 6 p.m. to 10 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
APOPKA
Sponsored by Shoot Straight
Saturday, November 8, 2014
Time: 1 p.m. to 3 p.m.
5 p.m. to 7 p.m.
To sign up, call 407-889-0842
ORMOND BEACH
Sponsored by Florida Gun Exchange
Saturday, November 15, 2014
Time: 1 p.m. to 3 p.m.
5 p.m. to 7 p.m.
To sign up, call 386-304-9499 ext. 2
DANIA BEACH
Sponsored by Nexus Shooting
Sunday, November 16, 2014
Time: 12 p.m. to 4:30 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
SAFETY HARBOR
Tuesday, November 18, 2014
Time: 6 p.m. to 10 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
JACKSONVILLE
Wednesday, November 19, 2014
Time: 6 p.m. to 10 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
LADY LAKE
Sponsored by Cool Gun Club
Thursday, November 20, 2014
Time: 6p.m. to 10 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here!
VERO BEACH
Sponsored by Treasure Coast Training Academy
Saturday, November 22, 2014
Time: 10 a.m. to 1 p.m.
2 p.m. to 5 p.m.
Cost: $5 Members, $10 Non-Members
Sign up here for 10 a.m.
Sign up here for 2 p.m.
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To view a complete list of seminars and workshops in your area, please go to www.GunLawSeminar.com. We hope to see you at one of our next events!
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QuickLinks |
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U.S. Law Shield
Principal Office
1020 Bay Area Blvd., Suite 220
Houston, TX 77058 |
Telephone: 877-474-7184
Website: www.uslawshield.com
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