Friday, March 30, 2012

Are presumptions under 776.013 rebuttable (i.e. not conclusive), and why should Florida firearms owners care??

Are presumptions under 776.013 rebuttable (i.e. not conclusive), and why should Florida firearms owners care?

With respect to the latter question, let's suppose a homeowner is awoken in the middle of the night by a noise elsewhere in the home.  The homeowner retrieves her pistol and proceeds through the house to investigate.  The homeowner comes upon a man in a ski mask, holding a pry bar, and the homeowner notices that her front door has been pried open.  The homeowner points her gun at the intruder, who the homeowner reasonably believes to have entered the house for the purposes of committing a burglary, or worse.  The homeowner yells at the man to drop the pry bar, put his hands in the air and drop to his knees.  The burglar says, "Ok, ok, you got me!  Don't shoot!  I surrender!  Call the police to come get me!  I surrender!"  The burglar tosses the pry bar away, removes his ski mask, puts his hands in the air, and compliantly drops to his knees.  The homeowner and burglar are separated by 20 feet.  The homeowner's husband then arrives from the bedroom, having been awaken by the noise.  The homeowner instructs her husband to call 911, which he does, and tells the homeowner the police will be there shortly.  The burglar has not moved since surrendering.  At this point, the assume the homeowner has no fear of imminent death or great bodily harm.

Suppose the homeowner then shoots the burglar, who survives.  The police arrive, and the homeowner's husband explains everything he saw happen.  The homeowner says she shot not because she was afraid, but that she was angry at the burglar.  Will she go to jail?

Let's address the first question by introducing s.776.013 and

When a criminal defendant in Florida claims her use of force was in self defense, certain presumptions are made pursuant to s.776.013 with respect to home invasions:
(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.
...
(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.
...
§ 776.013, Fla. Stat. Ann.

The language of 776.013 dovetails with 776.012:
... 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;
...
§ 776.012, Fla. Stat. Ann.
Taken together, it would seem that even if a defendant's use of deadly force was otherwise unjustified under 776.012 because the defendant did not have a reasonable "belief" that deadly force was necessary, if 776.013(1)(a) and (b) are satisfied, a reasonable "fear" is presumed. (It seems to me that in this context the words "belief" and "fear" are interchangeable, and the legislature was a little sloppy in its drafting...but who knows?).

In our hypothetical scenario above, at the time of the shooting 776.012 was clearly inapplicable, because the homeowner, by her own testimony was not in fear or imminent death or great bodily harm.  Even if her testimony was not available, her husband and the victim provide eye witness testimony as to the facts and circumstances, which suggest a reasonable person would not have been in imminent fear of death or great bodily harm, because the burglar had surrendered.  But what of 776.013?  (a) and (b) appear to be satisfied, because the burglar "had unlawfully and forcibly entered a dwelling" and the homeowner "had reason to believe that an unlawful and forcible entry or unlawful and forcible act ... had occurred."  The statute says there is a presumption she "held a reasonable fear of imminent peril of death or great bodily harm to ... herself ."  So in our hypothetical, we have a presumption provided by a statute that is the exact opposite of the facts in reality.  

So what is a "presumption" in the context of Florida criminal procedure?  Well first let's discuss presumptions generally.  To oversimplify slightly, a presumption instructs a trier of fact (i.e. the jury or judge) as to a finding.  The best example of this is the rebuttable presumption of innocence in a criminal case.  In our system, a defendant is presumed innocent (i.e. the judge or jury must find her innocent) unless and until the state rebuts that presumption by proving guilt beyond a reasonable doubt. But not all legal presumptions are rebuttable.  Sometimes a legal presumption is conclusive, meaning no matter how strongly the actual evidence might suggest a finding to the contrary, the trier of fact must accept the presumption as true.  Returning to our hypothetical owner, it could mean that if the presumption is conclusive, she won't go to jail because no matter what the facts show, if 776.013 applies, the trier of fact must find she was in fear for her life.  If the presumption is rebuttable, then the state can put on evidence (the testimony of the witnesses and her statements at the scene) to overcome the presumption.

So when are presumptions rebuttable, and when are they conclusive?

In civil cases, the Florida Evidence Code provides some guidance in civil cases through 90.301(2) :
90.301. Presumption defined; inferences
(1) For the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.
(2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.
(3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.
(4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.
§ 90.301, Fla. Stat. Ann.
Pursuant to (4), 90.301(2) only applies to civil cases.  See Hlad v. State, 565 So. 2d 762, 768 (Fla. 5th DCA 1990) opinion approved of, 585 So. 2d 928 (Fla. 1991)  ("There is no provision in the Florida Evidence Code for the use of presumptions in criminal cases.").  Nonetheless, cases interpreting 90.301(2) might be instructive.  One court has ventured that "conclusive under the law from which they arise" means the legislature must "designate" the presumption as conclusive.  See Don King Productions, Inc. v. Chavez, 717 So. 2d 1094, 1095 (Fla. 4th DCA 1998) ("Thus, it seems to us that unless the legislature specifically designates a presumption as conclusive, it is rebuttable ... .").  In Don King, the court was faced with a statute that contained several presumptions.  Some of those presumptions were labeled "rebuttable" and others were not labeled.  The question arose as to the absence of the term "rebuttable" in front of some presumptions rendered presumptions without that term conclusive.  In further support of its decision, the Don King court pointed out that the legislature had specifically removed the term "conclusive" from early drafts of the law. However, in Sun Elastic Corp. v. O.B. Indus., 603 So. 2d 516 (Fla. 3d DCA 1992) a concurring Judge Cope wrote:

I am unable to agree with the majority's suggestion that section 542.33[(2)(a)], Florida Statutes (1991), creates what amounts to an irrebuttable presumption. The legislature used the word “presumption” without adornment; under settled Florida law, an ordinary presumption is rebuttable. § 90.301(2), Fla.Stat. (1991); see also Straughn v. K & K Land Management, Inc., 326 So.2d 421, 424 (Fla.1976). If the legislature meant to create a conclusive presumption, it knew how to say so.
In that case, although the majority opinion never used the word "conclusive," Judge Cope perceived that in effect, the majority opinion was wrongly treating a statutory presumption as if the legislature had used the term "conclusive," when in fact that word was absent.  It is difficult to determine whether Cope's conclusion that his colleagues had interpreted the presumption as irrebuttable is correct, or whether the Florida courts have ever finally resolved this issue.  See e.g. Sarasota Beverage Co. v. Johnson, 551 So. 2d 503, 509 (Fla. 2d DCA 1989) (concurring opinion suggesting question should be certified to Florida Supreme court);  but see King v. Jessup, 698 So. 2d 339, 340 (Fla. 5th DCA 1997) (implying Capraro v. Lanier Business Products, Inc., 466 So.2d 212 (Fla.1985) established a conclusive presumption, which legislature eliminated with subsequent statute).

Returning then to 776.013, how have Florida courts treated the presumptions announced therein?  Two Florida appellate courts have stated the presumptions are conclusive:

The creation of section 776.013 eliminated the burden of proving that the defender had a reasonable belief that deadly force was necessary by providing a conclusive presumption of such. Fla. S. Comm. on Judiciary, CS for SB 436 (2005) Staff Analysis 5-6 (Feb. 25, 2005) (on file with comm.).
State v. Heckman, 993 So. 2d 1004, 1006 (Fla. 2d DCA 2007) (emphasis added); quoted as dicta by Bartlett v. State, 993 So. 2d 157, 163 (Fla. 1st DCA 2008).  Curiously, the staff analysis cited by Heckman states:
Conclusiveness of Presumption
Legal presumptions are typically rebuttable. The presumptions created by the committee
substitute, however, appear to be conclusive.
But the staff offered no basis for its statement.  Furthermore, the staff analysis states "This Senate staff analysis does not reflect the intent or official position of the bill’s sponsor or the Florida Senate."  Nonetheless, one could argue that the senators read the analysis, and thereafter voted for the bill thinking they were enacting a conclusive presumption.  But is it not more likely that many senators, many of whom are lawyers, never read the staff analysis, and instead assumed they were voting for a rebuttable presumption?

Along the lines of the analysis in Don King, I looked through some of the proposed amendments during the drafting of 776.013, and there does appear to have been a proposed insertion to make (4) rebuttable.  The implication being that it was apparently on at least one senator's mind that such language was necessary.  See Proposed Amendment No. 481721:
1 Representative Seiler offered the following:
2 3     Amendment (with title amendment)
4     On page 4, line 18,
5 remove:  all of said line
6 7 and insert:  an unlawful act involving force or violence. This
8 presumption may be rebutted.
9 10 ================ T I T L E  A M E N D M E N T =============
11     On page 1, line(s) 10,
12 remove:  all of said line
13 14 and insert:  creating a rebuttable presumption that a person
15 acts with
Can an argument be made about what it means that this proposed amendment was not acted on?

How have cases in Florida treated the presumptions under 776.013?  In one case, the court treated a presumption as rebuttable:
Here, Stieh had a right to be in the hotel room as he had lawfully rented the room for the night. The room qualified as a dwelling or residence for purposes of section 776.013.1 Only one witness, the victim, testified that he did not forcibly enter the hotel room in search of the wallets. Further, three of the witnesses testified the victim forcibly removed the appellant from the room at one point during the altercation. Thus, it appears the presumption in section 776.013(1)(a) applies to Stieh. The State's only rebuttal testimony corroborated that the victim was the aggressor and failed to rebut this presumption. See Hernandez Ramos v. State, 496 So.2d 837, 838 (Fla. 2d DCA 1986).
Stieh v. State, 67 So. 3d 275, 278 (Fla. 2d DCA 2011) (emphasis added).  It is not clear whether the Stieh court was referring to the presumption in (1) or (4).  Arguably, because the Stieh court found that even if the presumption had been rebuttable Stieh prevailed, Stieh may not be a true test for the conclusive v. rebuttable question of 776.013's presumptions.  Disturbingly, however, The Second District Court of Appeal is the same DCA that announced 776.013's presumptions as "conslusive" four years earlier in Heckman.

So can any conclusions be drawn here?  I don't think so.  I think the question of whether the presumptions in 776.013 are conclusive or rebuttable is in flux, and in considering their actions, Floridians would be wise to assume that the State will have an opportunity to rebut them.  

Should the presumptions in 776.013 be rebuttable or conclusive?  One argument is that we should not be second guessing the decisions made by people in the heat of the moment during a home invasion or carjacking (the statute also applies to people in vehicles).  Another is that people ought to be able to view their homes as refuges and feel secure in their "castles", and violations of that social contract are so evil that the violator "deserves whatever he gets."  But another argument might be that somewhere short of second guessing the homeowner, there can be situations where a the victim clearly surrendered, posed no threat, or was retreating, and in those circumstances defense of the home should not be absolute.  Personally, I find the policy arguments in favor of a conclusive presumption more persuasive.