Is there currently a law that requires you to escape from your own home if an intruder comes in?
Use of Deadly Force for Lawful Self-Defense
http://licgweb.doacs.state.fl.us/weapons/self_defense.html
I don’t believe the new law has colored any of the Q&As in this pamphlet.
Seems like questions: “What if I am in my car?” & “What if I think that someone is about to pull a weapon and use it on me?” might be affected.
IIRC, to justify the use of deadly force, you have to show that you had no other choice. Escape is one of the more common choices available.
Many, many years ago I did research on the issue of using deadly force on an intruder in your home, and at that time (early 1980s) in no state in the US was it likely for someone to be prosecuted for using deadly force on an intruder in their home or, if someone was prosecuted, they would have been found not guilty.
It has been a long time and I’m not going to redo the research, but in a lot of cases the law was stated rather passively, for instance by leaving “defense of the home” off a list of crimes which fell under manslaughter. Colorado, for one, recodified and sharpened this law to make its intent perfectly clear. It was labeled by many the Make My Day Law, as if it was some kind of change–but it wasn’t.
There are exceptions. If the intruder is leaving–you can’t use deadly force and get away with it. If the intruder is merely approaching but is not inside–you can’t use deadly force and get away with it (necessarily). In some states the law was written to say that you could use deadly force for defense of your person but not defense of property, but obviously that’s kind of hard to tell if someone’s breaking into your house in the middle of the night.
Quite significantly, if you have booby-trapped your house with the idea of killing intruders, and your booby trap actually kills one, you will probably get nailed for manslaughter, if not murder. I found quite a few cases where this had happened, and the home/building owner got more than a slap on the wrist. In one case the person killed was a firefighter–so that property owner did some serious time.
Doing the research I ran into both statutes and case law. In fact, there were people who had been convicted of manslaughter for defending their home, and they typically received some kind of slap on the wrist, like a 180-day suspended sentence, or two years’ probation. Quite a few people were nailed for having violated gun laws by doing so (or anyway some were; as I said it’s been a long time). It’s a big country and so there are bound to be exceptions but, twenty years or so ago, surveying this, the conclusion almost any reasonable person would come to was that it was perfectly acceptable to threaten and then use deadly force to defend your home.
So it looks to me like the Florida law is mainly just something to assure even-handedness in applying what’s already a policy.
According to that pamphlet, the courts already recognize the right to defend one’s home without having to retreat:
I recall a local case the seems germaine. A drunken, naked neighbor wandered into the wrong house. The homeowner (a vietnam vet) shot him, and as he ran away, followed and emptied his gun into the man’s back, the last bullet to the back of the head at point blank range while he was lying face down in the street. The prosecutor charged him only for the last bullet, and even so, he pleaded to manslaughter and got (IIRC) probation. In interviews, it was clear that he didn’t think he had done anything wrong- actually, he seemed a bit proud of himself.
In my opinion, the self-defense laws too liberal if that is the worst that happens in that kind of situation.
Perhaps, although it raises the question of whether the law is necessary at all. But a concern I have from reading the text of the proposed law is that it seems to possibly go beyond a mere re-stating of the policy already in effect:
While proponents seem to be touting the proposed law as a protection for people defending their homes, I notice that a little sentence buried in there that exempts concealed carriers from having to retreat if they get into an altercation in other places. Well it seems to me that if you’re carrying a weapon, you ought to have a duty to walk away from a fight, and only use the weapon if you have no other choice. I can see this law being used as a defense for someone who got in a fight and ended up shooting the other person, even though he could have simply walked away.
This is possibly problematic as well:
What about the example above where the drunk guy wandered into the wrong house? The law doesn’t seem to define “by force”. Is opening an unlocked door considered “force”? Does the door have to be locked? I agree with the argument that the homeowner doesn’t necessarily know what the intruders intentions are, but shouldn’t that be a matter of fact to be determined by investigation rather than presumed by law? The way the law reads, it doesn’t sound like the homeowner’s state of mind is even relevant; it’s just automatically presumed that the intruder was going to attack. Under that standard, it seems like even something such as “Oh my gosh, this is the wrong house - sorry!” BLAM! BLAM! - would be a justified shooting.
Quite the contrary: I do know when to protect my family. I protect my family always. Which means that if someone is threating me or them, if it’s possible for us to retreat, we do so, since that’s the best protection available. I do not ever put myself or my family at needless risk, just for the sake of revenge.
Think of it this way: When you attempt to flee, you’ll either succeed or you’ll fail. If you succeed, they you go completely unscathed. If you fail, then you can generally still attempt to fight. When you attempt to fight, you’ll either succeed or you’ll fail. If you succeed, you’ll probably still be injured, perhaps even mortally. If you fail, you’re likely to end up seriously injured or dead.
Now, obviously, there are some cases where escape is not an option. Maybe the attacker has you cornered in a room with only one exit. Maybe you’ve already attempted escape, but the other guy is faster. In such cases, yes, you have to fight, and take your chances. But the law already covers such situations.
We run into the same problems discussed earlier. Human beings aren’t robots and you can’t expect them to uphold some sort of detached logic when they’re facing risk to life and limb.
Maybe. I can also see someone who defended their life not getting in trouble simply because their first response wasn’t to flee.
Do they not define force in another part of the penal code? Of course the passage quoted says “unlawfully and by force” not just force.
No, the law should give the homeowner the benefit of the doubt.
Marc
First off, my example wasn’t saying that you personally couldn’t handle yourself in that kind of situation. I’m talking about anybody that could be in that situation, in general.
Now, while retreating may give you some protection, it’s not the best protection. When the shit hits the fan, and an intruder is in your dark living room with just you, and him with a knife (hell, if you’re lucky), it’s going to be kind of difficult to organize your entire family and retreat. Unless you’re going to run out of your house and leave your kids in the room, still possibly sleeping. Not really sound if you ask me.
Why should I have to flee my property without first having the chance to defend it? And why should I attempt to fight? I did nothing wrong! And not everyone is capable of fighting either. Then there’s the time wasting effort of actually gathering the family and fleeing the scene.
This reason alone is enough to pass the bill. “Some cases” is far too many to take the chance of not being able to defend yourself. One case… is enough.
In the middle of the night with an Intruder in a dark room, I don’t want to “fight” it out if I don’t have the option to “flee”. I don’t know how strong the intruder is. And I’d rather not find out if the guy is going to end up choking me in hand to hand combat. I mean, I’ll fight if I don’t have a gun on me and my life depends on it. But I’d rather put him down first with a slug if I can help it. Now if it becomes obvious that the intruder if fleeing, I won’t be shooting at him. I’m not a sadist. I’m merely arguing the point that we all have one life, and I want to use the best thing available to protect it should I have to. It’s not 100%, but IMHO, better then not being able to flee. Being armed weighs more when you don’t really know if you’ll have the chance to retreat or not, or if you’re not strong enough to fight.
Not what I’m talking about. Nobody’s questioning whether one should use deadly force if necessary to protect his own life. What I’m questioning is whether one ought not to have a duty to walk away from a fight if that’s an option.
For example: I go to the park. I see a guy with an ugly hat. I say, “Hey, that hat’s fucking ugly, asshole.” He says, “Shut up.” I say, “Why don’t you come over here and make me?” He approaches me. I stand my ground. He takes a swing at me. I pull out my trusty concealed pistol and shoot him. Is that justified? I don’t think it should be. I think my first choice should have been to try to get away from the guy.
I don’t know. Anybody know?
But we’re not just talking about benefit of the doubt, we’re talking about a presumption. There’s a difference between, “if we’re not sure then we should err in favor of the homeowner”, and “the homeowner is ALWAYS assumed to be right, no matter what.”
Previously Posted By:Me
Again, this Bill is not to address the issue of self-defense or retreat in your home. That was done long ago. This is about self-defense or retreat away from home. It is not a matter of yet another law where one already exists. It is new ground in Florida. If passed, no longer are we required required by law to retreat while out and about in the world, not in your home.
Here it is in it’s entirety:
Senate Bill sb0436e1
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CS for CS for SB 436 First Engrossed (ntc)
1 A bill to be entitled
2 An act relating to the protection of persons
3 and property; creating s. 776.013, F.S.;
4 authorizing a person to use force, including
5 deadly force, against an intruder or attacker
6 in a dwelling, residence, or vehicle under
7 specified circumstances; creating a presumption
8 that a reasonable fear of death or great bodily
9 harm exists under certain circumstances;
10 creating a presumption that a person acts with
11 the intent to use force or violence under
12 specified circumstances; providing definitions;
13 amending ss. 776.012 and 776.031, F.S.;
14 providing that a person is justified in using
15 deadly force under certain circumstances;
16 declaring that a person has no duty to retreat
17 and has the right to stand his or her ground
18 and meet force with force if the person is in a
19 place where he or she has a right to be and the
20 force is necessary to prevent death, great
21 bodily harm, or the commission of a forcible
22 felony; creating s. 776.032, F.S.; providing
23 immunity from criminal prosecution or civil
24 action for using deadly force; defining the
25 term “criminal prosecution”; authorizing a law
26 enforcement agency to investigate the use of
27 deadly force but prohibiting the agency from
28 arresting the person unless the agency
29 determines that there is probable cause that
30 the force the person used was unlawful;
31 providing for the award of attorney’s fees,1
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1 court costs, compensation for loss of income,
2 and other expenses to a defendant in a civil
3 suit who was immune from prosecution under this
4 section; providing an effective date.
5
6 WHEREAS, the Legislature finds that it is proper for
7 law-abiding people to protect themselves, their families, and
8 others from intruders and attackers without fear of
9 prosecution or civil action for acting in defense of
10 themselves and others, and
11 WHEREAS, the castle doctrine is a common-law doctrine
12 of ancient origins which declares that a person’s home is his
13 or her castle, and
14 WHEREAS, Section 8 of Article I of the State
15 Constitution guarantees the right of the people to bear arms
16 in defense of themselves, and
17 WHEREAS, the persons residing in or visiting this state
18 have a right to expect to remain unmolested within their homes
19 or vehicles, and
20 WHEREAS, no person or victim of crime should be
21 required to surrender his or her personal safety to a
22 criminal, nor should a person or victim be required to
23 needlessly retreat in the face of intrusion or attack, NOW,
24 THEREFORE,
25
26 Be It Enacted by the Legislature of the State of Florida:
27
28 Section 1. Section 776.013, Florida Statutes, is
29 created to read:
30 776.013 Home protection; use of deadly force;
31 presumption of fear of death or great bodily harm.–
2
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1 (1) A person is presumed to have held a reasonable
2 fear of imminent peril of death or great bodily harm to
3 himself or herself or another when using defensive force that
4 is intended or likely to cause death or great bodily harm to
5 another if:
6 (a) The person against whom the defensive force was
7 used was in the process of unlawfully and forcefully entering,
8 or had unlawfully and forcibly entered, a dwelling, residence,
9 or occupied vehicle, or if that person had removed or was
10 attempting to remove another against that person’s will from
11 the dwelling, residence, or occupied vehicle; and
12 (b) The person who uses defensive force knew or had
13 reason to believe that an unlawful and forcible entry or
14 unlawful and forcible act was occurring or had occurred.
15 (2) The presumption set forth in subsection (1) does
16 not apply if:
17 (a) The person against whom the defensive force is
18 used has the right to be in or is a lawful resident of the
19 dwelling, residence, or vehicle, such as an owner, lessee, or
20 titleholder, and there is not an injunction for protection
21 from domestic violence or a written pretrial supervision order
22 of no contact against that person; or
23 (b) The person or persons sought to be removed is a
24 child or grandchild, or is otherwise in the lawful custody or
25 under the lawful guardianship of, the person against whom the
26 defensive force is used; or
27 © The person who uses defensive force is engaged in
28 an unlawful activity or is using the dwelling, residence, or
29 occupied vehicle to further an unlawful activity; or
30 (d) The person against whom the defensive force is
31 used is a law enforcement officer, as defined in s.
3
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1 943.10(14), who enters or attempts to enter a dwelling,
2 residence, or vehicle in the performance of his or her
3 official duties and the officer identified himself or herself
4 in accordance with any applicable law or the person using
5 force knew or reasonably should have known that the person
6 entering or attempting to enter was a law enforcement officer.
7 (3) A person who is not engaged in an unlawful
8 activity and who is attacked in any other place where he or
9 she has a right to be has no duty to retreat and has the right
10 to stand his or her ground and meet force with force,
11 including deadly force if he or she reasonably believes it is
12 necessary to do so to prevent death or great bodily harm to
13 himself or herself or another or to prevent the commission of
14 a forcible felony.
15 (4) A person who unlawfully and by force enters or
16 attempts to enter a person’s dwelling, residence, or occupied
17 vehicle is presumed to be doing so with the intent to commit
18 an unlawful act involving force or violence.
19 (5) As used in this section, the term:
20 (a) “Dwelling” means a building or conveyance of any
21 kind, including any attached porch, whether the building or
22 conveyance is temporary or permanent, mobile or immobile,
23 which has a roof over it, including a tent, and is designed to
24 be occupied by people lodging therein at night.
25 (b) “Residence” means a dwelling in which a person
26 resides either temporarily or permanently or is visiting as an
27 invited guest.
28 © “Vehicle” means a conveyance of any kind, whether
29 or not motorized, which is designed to transport people or
30 property.
31
4
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1 Section 2. Section 776.012, Florida Statutes, is
2 amended to read:
3 776.012 Use of force in defense of person.–A person
4 is justified in using the use of force, except deadly force,
5 against another when and to the extent that the person
6 reasonably believes that such conduct is necessary to defend
7 himself or herself or another against the such other’s
8 imminent use of unlawful force. However, a the person is
9 justified in the use of deadly force and does not have a duty
10 to retreat only if:
11 (a) He or she reasonably believes that such force is
12 necessary to prevent imminent death or great bodily harm to
13 himself or herself or another or to prevent the imminent
14 commission of a forcible felony; or.
15 (b) Under those circumstances permitted pursuant to s.
16 776.013.
17 Section 3. Section 776.031, Florida Statutes, is
18 amended to read:
19 776.031 Use of force in defense of others.–A person
20 is justified in the use of force, except deadly force, against
21 another when and to the extent that the person reasonably
22 believes that such conduct is necessary to prevent or
23 terminate the such other’s trespass on, or other tortious or
24 criminal interference with, either real property other than a
25 dwelling or personal property, lawfully in his or her
26 possession or in the possession of another who is a member of
27 his or her immediate family or household or of a person whose
28 property he or she has a legal duty to protect. However, the
29 person is justified in the use of deadly force only if he or
30 she reasonably believes that such force is necessary to
31 prevent the imminent commission of a forcible felony. A person
5
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1 does not have a duty to retreat if the person is in a place
2 where he or she has a right to be.
3 Section 4. Section 776.032, Florida Statutes, is
4 created to read:
5 776.032 Immunity from criminal prosecution and civil
6 action for justifiable use of force.–
7 (1) A person who uses force as permitted in s.
8 776.012, s. 776.013, or s. 776.031 is justified in using such
9 force and is immune from criminal prosecution and civil action
10 for the use of such force, unless the person against whom
11 force was used is a law enforcement officer, as defined in s.
12 943.10(14), who was acting in the performance of his or her
13 official duties and the officer identified himself or herself
14 in accordance with any applicable law or the person using
15 force knew or reasonably should have known that the person was
16 a law enforcement officer. As used in this subsection, the
17 term “criminal prosecution” includes arresting, detaining in
18 custody, and charging or prosecuting the defendant.
19 (2) A law enforcement agency may use standard
20 procedures for investigating the use of force as described in
21 subsection (1), but the agency may not arrest the person for
22 using force unless it determines that there is probable cause
23 that the force that was used was unlawful.
24 (3) The court shall award reasonable attorney’s fees,
25 court costs, compensation for loss of income, and all expenses
26 incurred by the defendant in defense of any civil action
27 brought by a plaintiff if the court finds that the defendant
28 is immune from prosecution as provided in subsection (1).
29 Section 5. This act shall take effect October 1, 2005.
30
31
6
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Note: the Underline feature did not copy and I have tried to show them where I could. Is not complete in the Striking and Underlining- Nicodemus2004
Er, “we should err in favor of the homeowner” is precisely what the legal term “presumption” means (i.e. the homeowner is right unless and until somebody proves otherwise).
Nope. If you don’t have a good escape route (e.g. you’re out of sprinting range from any cover), it may very well be safer to attempt to take down an assailant than to attempt to flee (for starters, fleeing obviously entails turning your back on the enemy, which reduces your ability to avoid attack).
Arguments that rest upon lumping two different concepts together (in this case, the concepts of “punishment” and “self-defense”) set off my BS Alarm.
Again, that depends on the situation. The benefit of the doubt should go to the person who had the situation thrust upon him (the would-be victim), not the person who chose to create the situation (the assailant).
This distinction is relevant to a court of law (where the question is “Is Joe Blow the guy who broke through John Doe’s front door?”). It is not particularly relevant to the situation addressed by this law (“You, John Doe, find someone breaking through your front door. What do you do?”).
Thanks Blowero, I get where you’re coming from now. I can see why that would raise concerns. I suspect examples like the one you supplied are what critics are talking about when they bring up the “wild west” mentality. Of course in your example you’re goading the guy into a fight so I don’t know how applical that example really is.
Here’s where I’m coming from. Once a stressful situation has been resolved it’s much easier to look back and see what you should have done instead of what you did. As they say, hindsight is 20/20. I wouldn’t want someone convicted because they zigged without zagging first.
For example: I go to the park. A guy I don’t even know says “Hey, that’s an ugly fucking hat.”
“Well I’m sorry you don’t like it.” I say, as my Goofy hat is 'da bomb.
“You best leave before I rip that hat off your head.” Mean guy tells me.
I reply “I’ve got just as much right to be here as anyone else”
He closes in with fist raised and I clock him.
Should I have fled the park? Maybe, but I wasn’t the one who initiated force and to be honest I didn’t expect to get into a fight that day.
Do you really think this law is going to change anything? I really don’t. I can’t say I’d mull over whether I had a legal duty to attempt flight before defending myself when I was under stress.
I don’t see a big difference. Barring evidence that proves otherwise I will presume that the homeowner is in the right. Of course that’s due in large part to my belief that a person’s home is their castle and they should never have a duty to retreat in the face of an intruder. As far as I’m concerned someone who breaks into a home is taking their lives into their own hands.
Marc
Having had a brother,I think this new law is a very bad idea. When he was still physically smaller or about the same size as I was, sometimes he would pretend that I was threathening or actually hitting him and sometimes use that as an excuse to hit me with a metal baseball bat. What is so stop people from catching someone within earshot of a public place, but not readily visible to a lot of people and shouting “Oh, no, stop hitting me!” and then killing their victim?
Oh, God. I can’t stand that sarcastic “er…” crap. Thanks for fucking up an interesting discussion.:rolleyes:
But that’s exactly my concern. Reading the text of this proposed law, where there is no duty to retreat whatsoever, wouldn’t such shootings, even if they were the result of goading by the shooter, be legally defensible? Why wouldn’t it be applicable? Maybe I’m missing something, but all I see in the law is that there’s no duty to retreat; I don’t see any provision as to who “started it”. That’s my concern - that something that does seem to offend our sensibilities, e.g. goading someone into a fight and then shooting him, perhaps would be legally defensible under this proposed law. If you can tell me why it’s not applicable, by all means please do.
If it doesn’t change anything, then they don’t need it.
Well if you’re going to carry a gun around with you, I would certainly hope you would have put some thought into when and how you are going to use it. If you panic and kill someone, then no, I don’t think you should automatically get off scott-free with no investigation.
If I’m reading the law wrong, tell me - but the way I’m understanding it, what you’re describing is the status quo. A homeowner who kills an intruder is already presumed innocent. The way I’m reading the proposed law, though, is that it changes the standard of evidence so that it is automatically accepted as true that the intruder intended to commit an unlawful act involving force or violence.
I certainly don’t have a crystal ball with which to divine the future so I can’t rule out the possibility that someone would attempt to use it as part of a defense.
Florida law does define when deadly force can or cannot be used and I don’t see how this bill changes those conditions radically.
I don’t think you’ll see an increase in homicides or assaults because of this bill.
Sure, but there’s a big difference between giving it some thought and actually going through such a scenario. I expect an investigation no matter when a shooting occurs and I wouldn’t expect that to change because people no longer have a duty to retreat.
I used to have a concealed carry permit when I lived in Texas. One of my hobbies was night time photography and I would often find myself alone in Dallas after midnight with a couple of thousand dollars worth of photography equipment. It’s difficult to give concrete examples of what I’d do if faced with a robbery because it depends on so many variables. Would I shoot someone who was 50 ft. away and armed with a knife? No. Would I shoot if he was 15 ft. away and refuses to heed my warnings? There’s an excellent chance that I would. Once I set up all my equipment it would have been next to impossible for me to flee without abandoning a small fortune. Should I be required to flee and lose thousands in equipment? If I shot someone who was trying to rob me what have I done wrong?
I’m not reading it that way at all. It just doesn’t look like they can be prosecuted for murder or assault because they didn’t make an attempt to flee first.
Marc