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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 [email protected].
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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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