Posted by David Kopel:
Florida's New Self-Defense Law:
http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116516262
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 in fact 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:
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:
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:
(2) 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
(c) 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.
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:
(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.
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.
(4) 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.
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:
(5) 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.
(c) "Vehicle" means a conveyance of any kind, whether or not
motorized, which is designed to transport people or property.
The second and third sections of the bill amend existing statutes, to
make explicit the absence of an obligation to retreat. (Underlined
language is new; strike-through 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 [DEL: the use of :DEL] [DEL: :DEL] 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 [DEL: such :DEL] other's
imminent use of unlawful force. However, a [DEL: the :DEL] person
is justified in the use of deadly force and does not have a duty to
retreat [DEL: only :DEL] 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 [DEL: such :DEL] 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.
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.
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