South Florida residents strike back at intruders
'Stand Your Ground' law: South Florida residents use 'Stand Your Ground' law to strke back at intruders -- South Florida Sun-Sentinel.com
South Florida Sun-Sentinel.com
South Florida residents strike back at intruders
By Robert Nolin and C. Ron Allen
South Florida Sun Sentinel
September 11, 2009
With handguns and baseball bats, South Florida residents in recent days have been striking back at home invaders, beating and even killing those who violate the sanctity of their homes.
Two cases occurred in Palm Beach County. Thursday night, during a struggle, a Wellington homeowner shot and wounded one of two men who broke into his home. On Sept. 5, a group of men in a Lake Worth home turned the tables on a burglar, seizing his baseball bat and using it to break his arm.:banana:
And early Thursday in Miami, a man who jumped a fence and entered a home's yard ended up dead after a confrontation with the father and son who lived there. His manner of death has not been released by police, who still are investigating.
Such instances are hardly a trend, experts say, but rather a fluke of circumstances. And they probably don't represent an increase in frustrated homeowners fighting back.:tired:
"You have to look at each case individually," said George L. Kirkham, a criminologist at Florida State University. "There's a lot of tension right now in people's lives generally because of the economy. I don't know to what extent those kinds of factors may play into it.":scruntiny:
Use of deadly force against intruders is allowed under Florida law, but prosecutors and criminologists caution homeowners that there are limits to when they can harm an intruder.
Florida's Castle Doctrine has long provided that homeowners can use deadly force against intruders, but the homeowner must have a reasonable belief that he or she is in danger of death or great bodily harm. When acting within the limits of the law, homeowners who kill or injure intruders typically are not charged.
"You can use reasonable force in self-defense or to protect your property," said Bruce Winick, a professor of law and psychiatry at the University of Miami. However, he said, "I don't think you can use this as a license to kill."
For example, if an intruder surrenders or is incapacitated, a homeowner cannot use deadly force; to do so would risk criminal charges.
"We still have a bit of frontier mentality here in Florida, this idea of 'Yes, you can shoot to kill,' " Winick said. "I wouldn't advise people to kill people just because someone comes on your property.":slap:
In 2005, the "Stand Your Ground" law went into effect. It expands the Castle Doctrine to say a person can respond to an attack with deadly force not only in the home but anywhere in public.:yup:
Winick fears the law can send the wrong message. "To the extent homeowners understand that law, it may give them a signal that they can do anything," he said.
Brian Cavanagh, veteran homicide prosecutor with the Broward State Attorney's Office, shares that view.
"The 'Stand Your Ground' law, I hate it, and I think I can speak for most prosecutors and law enforcement officers," he said. "It's a dangerous, dangerous law, especially if it's misinterpreted by citizens who think it gives them the right to use unbridled force. It doesn't give you or anybody a carte blanche right to use force. Anybody who thinks that way better read the law.":twak:
Cavanagh, who makes decisions on whether to charge people in self-defense cases, said the threshold is whether people have a reasonable belief they are in immediate danger. If they don't, they shouldn't respond with deadly force, he said.
But in the heat of a confrontation with an invader, homeowners often don't have the luxury of examining their emotions.:scratchchin:
"People react in these situations," said Jeff Marcus, chief of the felony division at the Broward State Attorney's Office. "I doubt that they're stopping to ponder the Castle Doctrine.":comeandgetsome:
Robert Nolin can be reached at rnolin@SunSentinel.com or 954-356-4525.
The Essence of Florida Law
Either the LEOs/DAs in this piece were misquoted, or they are just plain stupid.
The structure of the law is not only fear of death or serious bodily injury - that is the limit of meeting force with equal force - but being in a place where you have a legal right to be and dealing with an immediate forceable felony.
The real test is in the forceable felony and meeting force with equal force because it is the most clear and objective - fear is subjective. See the law below:
JUSTIFIABLE USE OF FORCE
776.012 Use of force in defense of person.
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.
776.031 Use of force in defense of others.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.
776.041 Use of force by aggressor.
776.08 Forcible felony.
776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.
776.012 Use of force in defense of person.--A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, 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; or
(2) Under those circumstances permitted pursuant to s. 776.013.
History.--s. 13, ch. 74-383; s. 1188, ch. 97-102; s. 2, ch. 2005-27.
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.
(5) As used in this section, the term:
(a) "Dwelling" means 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.
(b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
(c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
History.--s. 1, ch. 2005-27.
776.031 Use of force in defense of others.--A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other's trespass on, or other tortious or criminal interference with, either real property other than a dwelling or personal property, lawfully in his or her possession or in the possession of another who is a member of his or her immediate family or household or of a person whose property he or she has a legal duty to protect. However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.
History.--s. 13, ch. 74-383; s. 1189, ch. 97-102; s. 3, ch. 2005-27.
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting 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 was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
(3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
History.--s. 4, ch. 2005-27.
776.041 Use of force by aggressor.--The justification described in the preceding sections of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.
History.--s. 13, ch. 74-383; s. 1190, ch. 97-102.
776.08 Forcible felony.--"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasionrobbery; 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.
History.--s. 13, ch. 74-383; s. 4, ch. 75-298; s. 289, ch. 79-400; s. 5, ch. 93-212; s. 10, ch. 95-195.
776.085 Defense to civil action for damages; party convicted of forcible or attempted forcible felony.--
(1) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.
(2) For the purposes of this section, the term "forcible felony" shall have the same meaning as in s. 776.08.
(3) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.
(4) In any civil action where a party prevails based on the defense created by this section:
(a) The losing party, if convicted of and incarcerated for the crime or attempted crime, shall, as determined by the court, lose any privileges provided by the correctional facility, including, but not limited to:
1. Canteen purchases;
2. Telephone access;
3. Outdoor exercise;
4. Use of the library; and
(b) The court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney; however, the losing party's attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client. If the losing party is incarcerated for the crime or attempted crime and has insufficient assets to cover payment of the costs of the action and the award of fees pursuant to this paragraph, the party shall, as determined by the court, be required to pay by deduction from any payments the prisoner receives while incarcerated.
(c) If the losing party is incarcerated for the crime or attempted crime, the court shall issue a written order containing its findings and ruling pursuant to paragraphs (a) and (b) and shall direct that a certified copy be forwarded to the appropriate correctional institution or facility.
History.--s. 1, ch. 87-187; s. 72, ch. 96-388.
Statutes & Constitution :View Statutes : flsenate.gov