For those of you who regularly read this blog, you know that I am a firm advocate of
the 2nd Amendment. I am a member of the
National Rifle Association, a concealed weapon permit holder, and an firearms enthusiast.
So as a criminal defense attorney it should come as no surprise that I am the biggest fan of
Florida's Stand Your Ground Law.
Stand Your Ground, or the nickname of Florida's self-defense statute (Florida Statute Section 776.013), states that:
"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."
In other words, the owner, resident, or legal occupant of a house, apartment, or car is presumed to have a reasonable fear of death or imminent harm if somebody unlawfully enters that house, apartment, or car.
You do not have to warn an intruder or be assured that the intruder is armed. Listen very carefully; this is the law in the State of Florida: If somebody uninvited and without legal cause to be present enters your home or car, you may shoot them dead. Period.
The reason I am discussing this today is because a recent news story raises novel issues about the reach of Stand Your Ground. Many news agencies, notably WSVN, are reporting that a homeowner shot and killed a thief on or about the property who was in the process of stealing a personal watercraft from the family's dock. When the family apparently confronted the thief, the thief told the family that he had a gun. Feeling threatened, one of the homeowners fired a gun, killing the thief.
Now I applaud the family's use of force in protecting their home, their lives, and their property. But there may be a problem.
The thief was shot and killed on the dock, which is probably not directly attached to the main dwelling.
Florida law defines a dwelling (for purposes of Stand Your Ground) as, "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."
The law states that an "attached porch" is part of the dwelling but is silent as to whether the outlying property, curtilage, or dock is extended the same protection as the home itself under Stand Your Ground.
Had the thief not said that he was armed, this may have been a homicide. But since the thief stated that he was armed, the family had a reasonable belief that their lives were in danger. However, Florida law also states that if a person, "reasonably believes that [deadly] 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..." they are justified in using it.
I believe that this shooting will be upheld as lawful self-defense.
Eric Matheny is a criminal defense attorney serving Miami-Dade and Broward. Call today to discuss your case.