Wednesday, February 1, 2012

Florida's Self Defense Statutes Part I - Questions

As a Florida attorney and shooting sports competitor, I am bombarded with questions from friends regarding the defensive use of force.  Most people are unaware that much of this area of law is governed by statutes, and reading the statutes answers some questions, but often raises others.

The logical starting point is:

776.012 Use of force in defense of person.—A person is justified in using 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 other’s imminent use of unlawful force. 
However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) 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
(2) Under those circumstances permitted pursuant to s. 776.013.
And also:
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 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.
On the surface, 776.012(1) seems straightforward, especially the first portion of the paragraph, "[h]e or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another."  But what does "imminent" mean?  And "great bodily harm?"  And what is the standard for a "reasonable" belief?

The second area addressed by 776.012(1) is "to prevent the imminent commission of a forcible felony."  What is a "forcible felony"?
776.08. Forcible felony
“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
Can deadly force really be used, pursuant to s.776.012(1), to prevent the imminent commission of all of these crimes?  Consider arson:
806.01 Arson.—
(1) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged:
   (a) Any dwelling, whether occupied or not, or its contents;
  (b) Any structure, or contents thereof, where persons are normally present, such as: jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
  (c) Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being,
is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or herself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) As used in this chapter, “structure” means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances thereto, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.
So in Florida, torching an unoccupied dwelling is a first degree felony, and torching any unoccupied "structure" (which includes cars, boats, and even tents) is a second degree felony.  So suppose a farmer stumbles upon some kids torching his unoccupied barn, or a business owner stumbles upon some kids torching his empty warehouse, or a vehicle owner discovers some rioters torching his car.  If the property owner shoots the person with the torch in his hand, does s. 776.012 or 776.031 legally justify the shooting?   

Returning to the "reasonableness" question, I see a distinction between a reasonable belief that shooting someone resolute in their intent is the only way to stop them from committing a forcible felony, but nonetheless, shooting the person wouldn't be reasonable, because under the facts and circumstances, although the person is certainly committing a forcible felony, there is no reasonable expectation that somebody will be hurt by the criminal.  Does the case law make this distinction?

Also problematic is the inclusion of aggravated stalking among forcible felonies:
784.048(3): Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
If imminent harm from the stalker is not present, but the final completion of the aggravated stalking is about to occur, does that mean you can shoot the stalker?  Even a cyber stalker?  It is hard to envision a scenario where that would seem reasonable.

Questions and more questions.  In future posts I will try to share some case law that may help shed some light on this area of law.  But keep in mind that some of these questions simply have no answers until a case comes before a court and a legal opinion is issued, and even then, the opinion may raise more questions than it answers.

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