Meet force with force: FL’s new self-defense statute
Update: 4 years later, an update.
Jurist reports that Florida’s legislature has passed a new self-defense statute [bill text]. The bill replaces the old “castle” doctrine – you guessed it – that a person’s home is his or her castle.
The first provision is that a person is “presumed” to have a reasonable fear of imminent bodily harm or death if certain conditions are met. Traditionally, this imminent danger was left to the jury to decide. The most controversial part of this bill is
(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 basically, it does away with the “duty to retreat” which says that if you can avoid physical harm by retreating, unless you are in your home or place of work, then you must make reasonable attempts to do so.
I’m not quite sure I understand the last part “or to prevent the commission of a forcible felony”. What is a forcible felony? Aren’t all felonies (atleast the regular ones – robbery, assault, larceny) forcible? So one can use deadly force to prevent a purse-snatcher from getting away? That could be a forcible felony if a person is shoved to the ground, and their purse/wallet taken which contains $2000 in cash. It’s a little troublesome.
It is good to see that FL’s lawmakers haven’t extended the right to use deadly force in self-defense against “regular” force – force that doesn’t present an imminent risk of death or serious bodily injury.
By comparision, CT’s self-defense statute requires the duty to retreat.
(b) Notwithstanding the provisions of subsection (a) of this section, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using such force with complete safety (1) by retreating, except that the actor shall not be required to retreat if he is in his dwelling, as defined in section 53a-100, or place of work and was not the initial aggressor, or if he is a peace officer or a private person assisting such peace officer at his direction, and acting pursuant to section 53a-22, or (2) by surrendering possession of property to a person asserting a claim of right thereto, or (3) by complying with a demand that he abstain from performing an act which he is not obliged to perform.
The duty to retreat, although it might sound rather ridiculous, is rooted in good intentions. The purpose of that duty is to prevent people from assaulting each other, when the situation could easily have been prevented. It may very well be impossible to do in a lot of situations, but the statute provides for that as well. It requires that a person retreat “if he knows that he can avoid the necessity of force with complete safety”. Maybe it is an ideological fantasy, but it’s better to have it than to permit people to start shooting one another in the middle of a street.
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about 7 years ago
Scary, but fantastic from our point of view. (I’ve been a PD for nearly 15 years)
I’m surprised that the florida DA’s lobby let that one go–sure it has that nice ‘dirty harry’ I blew the SOB away appeal, but my guess is that we will be taking advantage of the change far more often than the gun toting vigilantes they envision…
Keep up the interesting blog
David (http://davidfeige.blogspot.com/)
about 7 years ago
You’re absolutely right – I’m surprised it got by the FL DA lobby. It does create a lot of trouble for them. I seem to be reading the bill to say that there is a bar to prosecution. That is the one thing I have been unable to wrap my head around. Why would they create such a bar? If they wanted to allow people to “meet force with force”, the better route would have been to say that self-defense is no longer an affirmative defense or perhaps if it is an affirmative defense, lower the standard to preponderance.
This just doesn’t make sense. Add to it the fact that they’ve also created a bar to civil suits.
about 7 years ago
Why would the DA’s “lobby” let this pass? I don’t know for a fact, but I’d bet it’s probably because in Fla they, along with the various police unions/associations, fought the presumptive issue concealed carry permit tooth and nail and, as a result, took a real PR black-eye when civilization didn’t end as they predicted.
Besides, from a prosecutor’s point of view (albeit, from a state with no statutory self-defense provision), I can’t see a hell of a lot of difference between this lash-up and the common law, except the duty to retreat, and juries don’t always appear to believe in the duty to retreat, anyway.
Plus, there’s some good, lawyerly weasel wording that still allows the prosecution to take any given case to a jury. This is the key language “if he or she reasonably believes it is necessary. . .” as it creates a classic jury question.
about 7 years ago
Yeah, but the problem I have is with the “immune from prosecution” bit. So if they can’t be prosecuted, then they don’t have to show a reasonable belief.
I think maybe I’m reading it wrong.
about 7 years ago
A long time ago (circa 1972) I read an interview with a New York City street mugger. He said he wasn’t afraid of the police or going to jail. His sole fear was that some day he might attempt to mug someone carrying a gun and get shot for his efforts. At least for this one person, the criminal justice was ineffective at deterrence. The 1970s was a time when the public was (justifiably) afraid of street crime. About that time a Columbia University professor was killed walking the streets of Manhattan. He had survived Hitler only to meet his end at the hands of the thugs that roamed around the Upper West Side (and elsewhere). The movie “Death Wish†(starring Charles Bronson) came out about that time and suffered a lot of criticism for exploiting the emotions of audience, and its fear of crime. You just weren’t supposed to defend yourself, run if possible, but don’t you dare stand your ground. At that time we got the impression that the New York police and Mayor Lindsey weren’t particularly interested in defending us. I remember people calling the Fire Department instead of the police because at least they would show up. Two years later, I moved to New Jersey, and then a year later to California. I found out that generally in the western states you didn’t have a duty to retreat, you could stand your ground and protect your life if not your property. In California you didn’t need a permit to own a gun as long as you walk around in public with it concealed on your person. Even if you did, and got caught, it was only a misdemeanor. I think the consequences of the new Florida law will be minimal to none.
about 7 years ago
To answer Gideon’s questions/comments: “What is a forcible felony? Aren’t all felonies (atleast the regular ones – robbery, assault, larceny) forcible? So one can use deadly force to prevent a purse-snatcher from getting away? That could be a forcible felony if a person is shoved to the ground, and their purse/wallet taken which contains $2000 in cash. It’s a little troublesome.” [sic]
Here’s my attempt to answer your question: In Florida, non-forcible felonies include, but are certainly not limited to: Perjury; Bigamy; Fraud; Procuring person under age of 18 for prostitution; Deriving support from the proceeds of prostitution; Sale, manufacture, delivery or possession with intent of controlled substances or counterfeit controlled substances; Making or having instruments and material for counterfeiting driver’s licenses or identification cards; Dealing in stolen property; Forgery, Counterfeiting, and related crimes; Grand Theft (without the use or threat of violence). And many, many others. Note: the prostitution related crimes CAN be forcible under conditions when violence or threats of violence are used.
In Florida, “purse snatching” is called Robbery by sudden snatching (F.S. 812.131), and is a forcible felony regardless of the value of the property stolen or whether the victim was actually injured. So, is it legal to use deadly force on a thief for stealing an item of nominal value? Only to PREVENT the commission of said forcible felony, and NOT after the crime has been committed and the thief is in the act of fleeing. Not for a citizen, and not even for a law enforcement officer. BTW, They don’t call it “sudden snatching” for nothing, and it’s almost inconceivable that anyone would ever be in a position to prevent this particular crime before it happens. Therefore, if the thief has snatched your purse, wallet, cell phone, etc. and is running away, it is not justifiable to shoot him or her. Said shooter could and would be prosecuted for 1st Degree Murder. All applicants for a FL Concealed Weapon or Firearm License are given training to that effect, and know better than to shoot at a fleeing felon.
The bottom line is that this is not a “Dirty Harry” law. Some of the folks who are troubled by this seem to have missed the operative word with respect to both the old and modified statute: PREVENT. What’s troubling to me is that there seems to be a tendency among certain people to consider anyone with a concealed weapon permit to be a “vigilante”. This sentiment is grossly unfair and highly inaccurate. The overwhelming majority of permit holders recognize the grave responsibility imposed on them and behave accordingly. In stark contrast to the dire predictions of “blood in the streets”, every state that has recognized the basic human right of self defense by passing non-discretionary concealed weapon permit laws has experienced a decrease in crime per capita. Furthermore, the prophylactic effect of issuing concealed weapon permits to citizens extends to the public at large, not just the permit holders. Why? Because predatory criminals never really know for sure who’s packing. And in Florida, there are even a fair number of blue haired grannies who take responsibility for their own personal protection. Most permit holders never have to draw, much less discharge their weapons, and that’s the way we like it. At the risk of sounding presumptuous (yeah, I know, too late), most of us hope that states with restrictive laws will one day elect enlightened legislators and change the laws to allow all law abiding citizens (not just the politically connected ones) the option of protecting themselves and other innocent citizens.
Now for the disclaimer: I’m not a lawyer, this is not legal advice, your mileage may vary. I do however have a working knowledge of FL law with respect to carrying a concealed weapon or firearm, permits for same, and F.S. 776 governing the use of deadly force.
about 7 years ago
I am a law enforcement officer (federal) in South Florida and I have a couple observations I have made regarding the provision that perhaps someone could clarify for me:
In the provision, how is the word “attacked” defined? I think this would have some impact when the situation hits the court room.
In the phrase “meet force with force”, is there not an understanding that the force used should equal the force imposed, much like our use of force continuum we utilize in law enforcement? This is followed by “if he or she resonably believes it is necessary to do so to prevent death…” “Reasonably believes” sounds like fair criteria to meet before pulling the trigger. I have been in situations where I was confronted by less than favorable people, while I was armed, and didn’t even let the other person know I was armed.
It seems to me that these terms actually maintain resonable parameters for when one can use deadly force. If someone could illustrate this so called “wild west” mentality, I would appreciate it because frankly I do not see it.
It was recently said that “Disorder and chaos are always held in check by the law-abiding citizen.” If an old lady is held up by an armed assailant, she can giv up her purse and jewelry and it is a real shame and people are scared to be in that area because of what happened. But if she decides to take a stand and shoot that assailant, she has protected herself from loss and bodily harm, as well as prevented a future similar crime. Where is the problem?
I believe that the vast majority of citizens who have concealed carry permits or own firearms understand the responsibility of using them. It is the criminal element which creates the negative situations that push the innocent in to having to decide to use deadly force. The saddest truth is that the little old lady who shoots the filthy bastard who attempted to harm her will probably be paying him or his family after the civil suit.
There will always be exeptions to the rules, but I doubt that this law will increase the number of self defense shootings. Perhaps now some criminals will be more apprehensive to enact a forcible felony, or they will simply move up to Georgia. For all the critics of this bill outside the state of Florida, I can only suggest that you do not move here.
about 7 years ago
Dave’s made some salient points and asked some important questions. As to the meaning of “attack”, my understanding is that the definition is the commonly understood, Webster’s Dictionary definition. Attempting or threatening to punch, kick, bludgeon, run over, stab, stone, burn, or shoot are examples of defensible attacks. Verbal taunts, no matter how vicious, do not justify the use of force in response. So, a lady shopping or having lunch in Palm Beach may not shoot someone who has accused her of serving domestic champagne at her last party or carrying a knockoff Louis Vitton purse, though some opponents of the new law seem to believe this scenario will be played out with regularity. I tried to consult the FL Legislature online statutes to check for a precise definition, but the server was not responding. If you get a chance, read through Section 776 for specifics.
As for the level of force justified, it’s somewhat similar to a law enforcement officer’s use of force continuum, but also somewhat different. Law enforcement officers have somewhat more lattitude about when they may use force because of the risk inherent confronting suspected criminals, but they are also held to a higher level of conduct and scrutiny. LEO’s are typically required to escalate the use of force in stages beginning with verbal commands, followed by perhaps the use of a personal chemical defensive spray, then on to impact weapons, then a Taser if available, and then finally deadly force with a firearm as a last resort. By contrast, the object of self defense contemplated by this revision and the level of force allowed is that which is necessary to stop the attack. It’s not punitive, it’s not about revenge, it’s about preventing or at least limiting the injury to oneself or another innocent person. What’s more, the limit of force necessary and reasonable can vary widely from person to person. While it would be ridiculous for a trained law enforcement officer in good health to use deadly force on an equal sized assailant for pushing him to the ground, what about the 80 year old little old lady for whom a fall would very likely result in a broken hip, and all too often death within a matter of months due to complications?
It’s important to remember that most citizens are not trained extensively in unarmed defensive tactics or less lethal weapon systems, nor would it be practical for most people to deploy them. It’s also noteworthy that the law does not require an exact weapon for weapon defensive posture. In other words, the citizen is not limited to an attacker’s choice of deadly weapon. In the hands of an attacker determined to kill a victim, most anything can be a deadly weapon, including fists or feet. Check out the FBI statistics some time and you’ll be surprised by the number of murders committed with primitive weapons or no weapon at all. It may seem counterintuitive to most people, but the old adage, “don’t bring a knife to a gun fight” could not be more wrong. A completely unskilled attacker with an edged weapon can move much faster in a confined space than a defender armed with a gun can draw, conceal his or her attack until the last second, and inflict serious, life threatening bodily injury nearly anywhere they strike. While criminals with guns scare me, criminals with edged weapons TERRIFY me.
On a lighter note, here’s an interesting factoid: in Florida, Concealed Weapon or Firearm Licenses (W licenses) are issued by the FL Dept. of Agriculture and Consumer Services, Division of Licensing. The person in charge of this department is named Charles Bronson. No, there’s no relation to the now deceased actor from the “Death Wish” movies, but come on, that’s a funny coincidence.
about 7 years ago
Thank you all very much for your comments – instead of responding here, I’ve made a new post, here, thereby moving this discussion back up to the front page. Please feel free to comment and respond further.