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Gutmacher's analysis of Florida's new law.
Attorney Jon Gutmacher is the author of Florida Firearms - Law, Use & Ownership
(the so-called "green book"). Widely considered to be the definitive guide to Florida's laws on firearms/use of force, Mr. Gutmacher's book is seen for sale at many gunshows and gunshops. Florida Firearms - Law, Use & Ownership has become the standard reference for ordinary people who wish to understand what they can, may and should do in relation to owning guns in Florida.
Mr. Gutmacher has posted this analysis of Florida's new use of force law on his website >here<
Question: Can you analyze the Protection of Persons and Property Bill [SB 436] that goes into effect October 1, 2005?
ANALYSIS OF PROTECTION OF PERSONS AND PROPERTY BILL
by jon h. gutmacher
The Protection of Persons and Property Bill [SB 436] passed the Florida Legislature, and will probably be signed into law by the Governor by the time you've read this. You've probably heard some of the hype on this legislation, and what you've heard if it's from the press is probably wrong. Touted as an act to restore the "castle doctrine", this important piece of legislation went through several stages of watering down to be acceptable to the entire legislature, but still remains a very important act. It goes into effect October 1, 2005.
So, what's it all about so far?
Well, in a nutshell it establishes that a person is legally justified in using deadly force under certain circumstances. Those circumstances are:
-When another person is illegally and forcefully trying to
gain entry into the others home, dwelling, or occupied vehicle, or
has so gained entry, or
-When another person has removed or is attempting to remove a person
from that home, dwelling, or occupied vehicle against their will,
-When the person using this deadly force believes that an unlawful
and forceful entry had occurred, or was occurring.
If all three conditions are met, then the law "presumes" that the person using deadly force did so with a reasonable fear that they, or another person they were protecting, were in imminent peril of death or great bodily harm, and creates an additional "presumption" that any person who unlawfully entered or attempts to enter another person's dwelling, residence, or occupied vehicle is doing to with an intent to commit an "unlawful act involving force or violence."
The law also adds a section that changes the "retreat rule", and states that a person no longer has a duty to retreat before using deadly force, so long as they "reasonably believe" that such is necessary to prevent death or great bodily harm to himself, herself, or another or prevent the commission of a forcible felony.
Of course, there are exceptions to the law. All of the exceptions are somewhat common sense:
1.The law does not apply where the attacker is a co-occupant or other lawful resident, unless there is a domestic violence injunction
against that person, or pretrial order of "no contact" with the
2.The person being removed is a child, grandchild, or is otherwise in
the lawful custody or guardianship of the person attempting the
3.The person using defensive force is engaged in an unlawful
activity, or using the structure or vehicle to further an unlawful
4.The person using defensive force is using it against a law
enforcement officer who is attempting entry as part of their
duties, and has identified himself according to any law, or the
person using force knew or reasonably should have known the other
person was a law enforcement officer.
To aid the law, the traditional definition of "dwelling" has been expanded to include any building that is designed to lodge people overnight, including any attached porch, so long as there is a roof, and includes structures such as a tent. The term "residence" includes a temporary residence, and also covers lawful use of force by invited guests who are merely there on a temporary visit. The term "vehicle" means any kind of conveyance, with or without a motor, which is designed to transport people or property. One of the important changes here is that an invited social guest no longer must retreat when faced with a forcible felony. The "castle doctrine" now includes him or her!
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.
So, once October 1st rolls around how will the law change things?
Well, right now anyone who uses force, including deadly force, to stop a crime, for self-defense, or defense of others, must affirmatively prove that their actions were reasonable and necessary before their defense can be considered. The new law seems to change that, and creates a presumption they acted legally and that the prosecution must prove otherwise. If this is the interpretation given to the law by the courts, this will be very important legislation for that reason only. 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:
1.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.
2.Limiting the definition of residence to the actual "under roof"
area might be interpreted by the courts as changing and limiting
the more expansive "curtilage" area you now have a legal right to
protect. Curtilage includes the dwelling house, and immediately
attached buildings and walk areas. I think it's very clear that the
Legislature didn't mean to place any additional limitations on self-
defense, but the failure to include the word "curtilage" may create
some litigation problems in the future.
3.Limiting self defense against a co-occupant is silly. If the co-
occupant is trying to kill you, rape you, or burn your home down
the only issue should be whether the co-occupant is committing a
forcible felony. If they are, the law should allow you to stand
your ground, and take advantage of the presumptions created by this
proposed legislation. The Legislature may have really screwed up
here because the Florida Supreme Court held in 1999 that co-
occupants did not have to retreat in their own home where deadly
force was reasonable. I guess a weak argument can be made that the
Legislature meant to overrule the 1999 decision. I doubt the courts
would buy such an argument but it again opens the issue to
litigation until clarified.
4.The definition of vehicle is still somewhat confusing because the
term "conveyance" is used, and a conveyance ordinarily excludes
bicycles, oared vessels, canoes, and small sailing craft. It's
obvious that the term "vehicle" should include these terms, and
once again the failure to specifically include them has left this
an issue for litigation to clarify.
5.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.
6.Court costs, attorney fees, and expenses are great if you're
getting sued in civil court, and win. But, who's going to pay it?
Do you really expect the low-life criminal who tried breaking in
your home to pay the bill, after he loses a lawsuit against you?
No, he doesn't have a dime! So, as a practical matter, you will not
collect dime one, immune or not!
So will the new law "turn every Florida street into Dodge City," as the media has been gleefully hyping?
No, very little has changed. You must still have a "reasonable belief" that your actions are "necessary" to stop a forcible felony before using deadly force. The only difference is you usually don't have to retreat. Whether retreat is wise, foolhardy, or exposes you to more or equal danger, is still an issue that will change with the facts of each case.
Likewise, the Legislature gave us no relief in the mandatory minimum sentences if convicted. You still face a three-year mandatory if you possess a firearm if convicted of aggravated assault, 10 years if you discharged the firearm, and most other firearm crimes fall into the 10-20-life area. Thus, persons who are wrongfully charged will likely still take a "plea" rather than opt for a trial, even if innocent. So much for the statutory "immunity" allegedly granted by the new law.
Anyway, that's my analysis of this very important piece of legislation. Hope it helped!
Last edited by Mr. Blandings; 04-09-2005 at 06:07..
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