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May 12, 2017

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​Practical Matters of the Law: Lethal Self-Defense

 

Author's Note - This is the first in a short series. Self-defense is a personal choice and a person considering arming themselves for that purpose should give all aspects of it full consideration. These posts are merely intended as a legal survey. They are not intended as a comprehensive discussion of self-defense legally, morally, or tactically.

 

The Castle Doctrine


      The smoke in front of you clears slowly, but the ringing in your ears persists.  There's a new smell in the dark living room. You think you recognize him now. You might have seen him walking down the street a couple times. You notice your hands have begun to shake - a neighbor's kid maybe? Your life has changed forever. This isn't a good feeling and God forgive you, now what? You see the flashing lights approaching.


      Self-defense using deadly force is a reality. It happens often enough to be concerned about if you arm yourself. By the way, I do. Most everyone I know does especially in their homes. When discussing self-defense, you will hear phrases like 'Castle Doctrine,' 'the duty to retreat,' and 'Stand Your Ground.'  But what do these phrases actually mean in practical terms?  In this post we will survey Florida's approach to self-defense in our homes, specifically how the Castle Doctrine applies.

 
      Florida is a national leader in providing legal protection for those who defend themselves or others against criminal violence.  Most of the protections Florida law provides are contained in Chapter 776 of the Florida Statutes. Florida's version of the Castle Doctrine is found in Fla. Stat. 776.013.  To save space and time, it goes pretty much like this:

 

'A person is presumed to have a reasonable fear of imminent peril if another person, not allowed to be there, enters or is in the process of illegally and forcibly entering the person's house or occupied car.  It counts as your house or car if you own it, are in it legally, even if only by invitation.'
 

http://www.flsenate.gov/Laws/Statutes/2016/Chapter776   
    

      The italicized words above are key because historically many jurisdictions have cultivated confusing, even contradictory legal minefields those who defend themselves against criminals must traverse to avoid paying very serious consequences. In some jurisdictions restrictions remain that, intended or not, place a huge legal burden on the law-abiding citizen responding to criminal violence.

 

http://abcnews.go.com/2020/story?id=123703&page=1
    

      Legitimate self-defense is premised first on the existence of a dire, grievous threat to the defender’s life or body, or that of another, and second that the defender has the right to meet force with force. What Florida has done is to codify the presumption that in your home (or car), it is assumed that someone forcibly entering intends to do great harm to you or others inside, therefore the use of lethal defensive force is allowed to negate the attack.   
    

      Florida has also eliminated the requirement to retreat from an illegal intruder while within one's home or car.  Additionally, Florida expressly immunizes the defender from criminal prosecution and civil action, and goes so far as to mandate awarding reasonable attorney's fees, court costs, compensation for lost income and all related expenses of a defendant wrongly brought to court to answer a lawsuit by an injured offender or his or her heirs.
    

      So, that's the Castle Doctrine and Florida's approach to it in a nutshell, but what does the Castle Doctrine mean to us practically speaking?  It means this:
 

     - You may not shoot someone knocking or even pounding on your door.

 

http://www.orlandosentinel.com/news/breaking-news/os-clermont-cop-shot-at-arrest-20170322-story.html
 

     - You may defend yourself or others against someone crawling through your window.  

 

http://fox59.com/2016/03/24/homeowner-shoots-intruder-during-attempted-home-invasion/

 

http://www.abc15.com/news/crime/pd-mesa-woman-fires-rifle-shot-at-man-entering-home-through-window
 

     - You may not shoot someone running away from your home after breaking in or trying to break in.


http://www.foxnews.com/us/2017/01/31/homeowner-charged-with-manslaughter-for-shooting-at-home-invasion-suspects.html


http://dailycaller.com/2015/08/18/ohio-man-charged-with-manslaughter-for-shooting-burglar/
 

     - You may not shoot someone trying to steal your unoccupied car from your driveway.


http://fox2now.com/2016/11/16/lake-st-louis-homeowner-faces-murder-charges-after-shooting-suspected-car-thief/
 

     - You may defend yourself against someone trying to pull you out of your car or forcibly climbing into it while you are in it.


http://www.clickondetroit.com/news/local/detroit/detroit-woman-shoots-at-would-be-carjackers_20151130230056861
 

     - You may not shoot someone merely trespassing through your backyard.


http://www.pennlive.com/news/2017/04/man_charged_with_shooting_at_t.html
    

       You get the picture so a few final comments.  One unresolved problem in Florida is the conflict between 'Knock and Announce' and the 'Castle Doctrine.' ‘Knock and Announce’ refers to the police tactic of quickly entering a home virtually without notice so that suspects have no time to prepare, escape, or to destroy evidence.  Trust me, you do not want to climb out of bed and enter a firefight with a well-caffeinated, trained, and equipped SWAT team.

 
       Second, realize that the Castle Doctrine does not apply against members of your household, their guests, or others with a right to be there, even if only for one night. You can't just shoot your teenage daughter's boyfriend. Know who you are dealing with as much as possible before shooting or threatening someone with a gun.  It could be the police on a misguided raid, or at least as bad, a family member doing something out of sorts like coming home drunk.
Also remember that you cannot use deadly force against someone who no longer poses an immediate threat.  Once they are down and no longer a threat, you must stop harming them.


      Finally, after the event, immediately call 911, then call your lawyer and allow yourself time to decompress before you start talking to the police. You have just been through something few people will ever experience, even police officers. You have been scared and reacted lethally.  Once the police arrive standard practice will include securing the scene, isolating you, and questioning you. Your response should be to take some deep breaths, collect your thoughts, and when asked, calmly inform the investigating officer that, "I look forward to discussing this with you, but I would like to speak with my attorney first."


      This has been a brief survey of the Castle Doctrine as it applies to self-defense in the State of Florida.  Hopefully it provides food for thought concerning some of the considerations of self-defense.  In the next post we will survey ‘Stand Your Ground.’  

 

Michael P. Gilbert is a military veteran, and a second career attorney serving criminal defendants and accident victims throughout the Florida Panhandle.  He has an office in Crestview, FL. 

 

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