Maybe not... We'll have to see.
This is a discussion on Womans Returns Home and Kills Intruder within the In the News: The Good, the Bad and the Ugly forums, part of the The Back Porch category; Maybe not... We'll have to see....
Maybe not... We'll have to see.
There's nothing to review in Florida. If someone breaks into your home, they are presumed to have done so for the purpose of committing an unlawful act involving force or violence, and the resident using deadly force is presumed to have done so out of a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another.776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--
(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.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(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.
(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.
Hopefully, the State will determine that no charges are warranted. Even better, maybe the law can be changed so that charges are not even a consideration where someone defends themselves in their own home against an intruder.
As far as civil cases, not only is the resident immune from liability, but if a suit is filed, the plaintiff is responsible for the defendant's legal expenses. If the plaintiff has an attorney, and that attorney was aware of the circumstances of the shooting, then the attorney is also responsible for the defendant's legal bills.
If the criminal survives and brings the suit from jail, upon dismissal the prisoner loses all their privileges in jail.
Battle Plan (n) - a list of things that aren't going to happen if you are attacked.
Blame it on Sixto - now that is a viable plan.
Florida's language is good - no wonder I've kept it as my home of record all these years... Oh, yeah, that and no State taxes... ;)
The only monkey wrench (had this happened in FL) is that the two knew each other. A slimeball lawyer (ah, but I repeat myself) might argue that the deceased was invited into the house, or had a standing arrangement where he was allowed access, or some other such nonsense. I doubt it would hold up, but the possibility is there - even with FL's pretty strict guidelines.
A man fires a rifle for many years, and he goes to war. And afterward he turns the rifle in at the armory, and he believes he's finished with the rifle. But no matter what else he might do with his hands - love a woman, build a house, change his son's diaper - his hands remember the rifle.
We absolutely have the 'Castle Doctrine' in Arizona. If you review ARS 13-418 , ARS 13-413 and ARS 13-411 you will find it.
13-418. Justification; use of force in defense of residential structure or occupied vehicles; definitions
A. Notwithstanding any other provision of this chapter, a person is justified in threatening to use or using physical force or deadly physical force against another person if the person reasonably believes himself or another person to be in imminent peril of death or serious physical injury and the person against whom the physical force or deadly physical force is threatened or used was in the process of unlawfully or forcefully entering, or had unlawfully or forcefully entered, a residential structure or occupied vehicle, or had removed or was attempting to remove another person against the other person's will from the residential structure or occupied vehicle.
B. A person has no duty to retreat before threatening or using physical force or deadly physical force pursuant to this section.
13-413. No civil liability for justified conduct
No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter.
In addition, ARS 13-205 provides that the state must prove it is not justified:
13-205. Affirmative defenses; justification; burden of proof
A. Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence. Justification defenses under chapter 4 of this title are not affirmative defenses. Justification defenses describe conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct. If evidence of justification pursuant to chapter 4 of this title is presented by the defendant, the state must prove beyond a reasonable doubt that the defendant did not act with justification.
Last edited by SelfDefense; January 17th, 2008 at 09:34 AM. Reason: Added 13-205
I won't post it all as it's lengthy but I will post an excerpt on that particular part.
D) 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 a violent crime as defined in Section 16-1-60.
(E) A person who by force enters or attempts to enter a dwelling, residence, or occupied vehicle in violation of an order of protection, restraining order, or condition of bond is presumed to be doing so with the intent to commit an unlawful act regardless of whether the person is a resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder.
Section 16-11-450. (A) A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known that the person is a law enforcement officer.
The entire bill can be viewed here:
2005-2006 Bill 4301: Protection of Persons and Property Act - www.scstatehouse.net - LPITS
As you can see, they are quite similar. Presumption is there. But... someone almost always is going to review whether or not those criteria are met. So there is always review in any case. I can bet you that your police or DA are going to collect facts and rule on whether it does or does not meet the criteria put forth. Every time I bet. They are not just going to haul the body off. They are going to determine if unlawfull entry or forced entry occurred and if the person was not supposed to be there and if you had reasons to prevent bodily harm... etc...
I hope she comes out clean on the shooting. Hope they have a castle doctrine law in this state.