Meet force with force: FL’s new self-defense statute – II

Update: Jeff Spivack has provided a link to a great website that has an excellent analysis of this law. Here is an excerpt:

Another interesting facet of the law is that persons who appear to be validly relying on the law, are supposedly "immune" from criminal prosecution and arrest unless and until "probable cause" exists to believe that the use of force was not legal. How that provision will work out in reality is anyone’s guess. It will probably be an issue litigated in the courts for years to come. The final benefit, which is really an empty shell: It allegedly awards attorney fees, lost income, and all expenses of defending any civil action to any person sued because of their use of defensive force who is found to be "immune" in the civil case. As a practical matter, this provision will be useless. I’ll explain why later in this article.

As to the other areas of the bill, it’s hard to say how much value they’ll have because the Legislature didn’t really think them through. Let’s do a little analysis on that:

The presumption that the person breaking in the residence/vehicle is doing merely an "unlawful act" involving "force or violence" falls far short of the required legal standard of a "forcible felony" as a predicate to any use of deadly force. A forcible felony allows deadly force as a response where the defender "reasonably believes" the force was "necessary" to stop the forcible felony – an "unlawful act with force" can merely be a misdemeanor such as battery or trespass, and the Legislature really screwed up on choosing this language.

The alleged "immunity" against arrest is probably an illusion.  Although the law says law enforcement "may use standard procedures for investigating the use of force", and shall not arrest unless they first determine that probable cause for the unlawful use of force exists – the problem is that there are no "standard procedures" for investigation, and more importantly, there is no requirement that a reasonable investigation of the lawful use of force "shall first be made before any determination of probable cause is valid". Furthermore, the phrase "may use" means law enforcement can still ignore standard procedures, and do only a bare bones job of investigation – which, unfortunately, many departments follow. The law also leaves in place other easier methods of arrest under Florida Statute 901.15, which only require probable cause of a lesser crime. Thus, the "immunity" section of the law will likely have no enforcement value before the courts, and get little respect from the police.

Original post: After my post on Florida’s new self-defense statute, I have received a number of extremely interesting and well thought out comments. These comments provide a different point of view, one from a Florida law enforcement officer, and worth a read. Commenter "Jeff Spivak" helpfully lists "non-forcible felonies" in Florida:

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.

So I’m assuming all others are forcible. I agree that the example I used (purse-snatcher) is not really conducive to a discussion of the "prevent a forcible felony" prong of this new self-defense statute. But it does point out the inherent problem – subjectivity. For long, the determination of reasonable subjectivity has been the realm of the jury. This statute – and this is my biggest problem with the bill – takes that away and leaves it up to …. no one. Despite the thoughtful comments, I still don’t have an answer to the immunity problem. Who decides immunity – or rather, who grants it? If there is someone who makes that determination, how do they do it? Is there an arrest first? Clearly not – since the statute prohibits that. Then what? Is the police officer on the scene the one to make a determination of immunity? The statute doesn’t grant that authority – and I’d have serious constitutional problems with that as well.

But again, please read those comments.

5 thoughts on “Meet force with force: FL’s new self-defense statute – II

  1. Jeff Spivack

    Gideon,

    I may have been remiss in providing a list of NON-forcible felonies in FL, but I was trying to illustrate that not all felonies are forcible. So, straight from the horse’s mouth is Florida’s statute on what IS considered forcible:

    F.S. 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

    At first blush, Florida’s legislative philosophy seems to be the polar opposite of some of the states that were among the original 13 colonies and still have a lasting legacy of reliance on common law. In contrast to SC (where I currently live) which seems to leave nearly everything undefined and open to interpretation, FL laws are extensive, expansive, and seem to reveal an almost obsessive need to define EVERYTHING and anticipate all possible contingencies. Of course, trying to foresee every possible contingency is a fool’s errand, and if you look closely in the statutes, you will find a common thread: our old friend the “reasonable man”, at least implicitly. Ultimately, the question of what is reasonable is still a question to be decided by a trier of fact, whether a jury if demanded by the defendant or a judge in a bench trial. I share your concern with the procedural questions and with regard to who decides to prosecute. My first guess would be that it is still left to the discretion of the State’s Attorney, but it’s just that: a guess. Your question about who grants immunity is much easier to answer, at least in theory: the Florida Legislature and Governor, by passing and signing the bill, respectively. Deciding WHEN immunity applies IS open for interpretation.

    I too am troubled by police being the arbiters of reasonableness and if or when a statute applies, but in practice, they do it every day. Example: I once conducted an inspection for a client involved in a divorce and located a wiretap connected to her telephone line in a detached garage. I then installed a hidden video camera (without audio) and caught the client’s brother-in-law red handed in the act of removing the wiretap interface and recording device. We had a “staged” conversation on the tapped line to convince whoever was listening that the inspection had not yet taken place, but was imminent, in order to entice him to remove the evidence, and he took the bait. Here’s the punch line to this off-topic anecdote: the client promptly called the police, who promptly dispatched a uniformed officer, who in turn promptly announced that “this is a civil matter” and refused to even take a written report, much less refer the matter to the D.A. (this was in GA) for prosecution. Say, that reminds me, there’s another non-forcible felony: wiretapping! Sorry, I couldn’t resist.

    Back on topic: Jon Gutmacher is a Florida attorney, formerly a prosecutor and now in private practice with 25 years experience, and an authoritative source who literally wrote a book on the subject of firearm and self defense laws in FL. I highly recommend this, his analysis on the new law (including some of the provisions you’re grappling with) and some of its potential flaws and unintended consequences: http://www.floridafirearmslaw.com/faq001.shtml
    Mr. Gutmacher covers all the bases in far more depth and clarity than I could ever hope to.

    In closing, let me thank you for the opportunity to participate in your forum. The hallmark of your blog as I’ve experienced so far has been thoughtful, polite, well reasoned discussion from all points of view. It’s refreshing to find an atmosphere free from vitriole and hyperbole that seem to dominate so many other blogs. I feel like I learn something every time I visit and read some of your discussion groups. Keep up the great work,

    Jeff

  2. txpublicdefender

    Jeff, thank you for your comments and for the link to Mr. Gutmacher’s analysis. I was one who initially didn’t understand the uproar over the law. I thought removing a duty to retreat and allowing the use of deadly force with a reasonableness requirement was a good thing. After going back and forth with Gideon, though, I remain troubled by the immunity issue as it seems like a procedural and practical nightmare. I agree with you, though, that I don’t foresee the law resulting in a host of vigilante attacks. Assuming the immunity issues can be resolved, I still believe that juries take that “reasonable belief” requirement very seriously when someone has been killed or seriously injured.

  3. Gideon

    Jeff, I was not being sarcastic when I said you provided a list of NON forcible felonies. I was actually quite grateful that you were considerate enough to provide that information.

    The link you to provide to Jon Gutmacher’s website is really helpful. Thank you very much for it. It seems that he has done an excellent analysis of the law’s flaws and benefits and it’s future problems.

    I hope you continue to read this blog :)

  4. Jeff Spivack

    Gideon,

    I certainly took no offense and never considered your remarks to be sarcastic. A second reading the first paragraph my last post reveals to me what could easily be misinterpreted as curt, or even caustic, and was definitely not my intent. That’s the limitation of the written word, especially in the hands of someone clumsy with syntax such as myself: the intended tone is often lost in translation. And just for future reference, when I use sarcasm, it is meant in a good natured spirit, mocking absurdity in general, not anyone in particular. Nevertheless, this is a good reminder for me to be careful in my choice of words and use of humor. That’s something that’s really difficult to convey in a setting like this.

    I mean it when I say that this is a fascinating blog for someone like me: not a lawyer, but someone who works with and for lawyers on a regular basis. In my role as an investigator and forensic consultant, I get the chance to see the practical aspects of the legal system played out. It’s absolutely fascinating to watch the lawyers deal with the arcane language of the law and approach the same set of facts from two diametrically opposed viewpoints. Basically, it’s a front row seat to the ultimate reality show.

    Again, keep up the great work,

    Jeff

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