Gun-Fi

[gpalmer]

Originally Posted by Old Pa

Before I went back to law school, I was a cop for five years (my M.S. is in criminalistics). I've been practicing law for twenty-five years now and teaching the legal aspects of lethal force to CCW applicants for more than five years. I know something of what I speak in these areas.

I'm sure you're a whiz at your state's laws and the "Castle Doctrine" in general. Unfortunately you're ignoring that I pointed out this is a Florida enhancement. If you look at the Florida statues "776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm." you'll find where you're going off the rails.

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.

It's very cut and dried in the state of Florida and the legal cases have covered not only homes, but tents, motel rooms, etc. They forcibly enter your home, there is an automatic presumption they meant you harm, end of discussion, not long debates over whether he was actually going to use that machete on you, or that 44 magnum, no whining over whether you should have had an encounter session to steer him back onto the straight and narrow. Bought and paid for.

[gpalmer]

BTW Old Pa, that provision actually pre-existed before the "Castle Doctrine." The "Castle Doctrine" mainly gave us immunity from civil suits after a shooting.

[Old Pa]

Originally Posted by gpalmer

I'm sure you're a whiz at your state's laws and the "Castle Doctrine" in general. Unfortunately you're ignoring that I pointed out this is a Florida enhancement. If you look at the Florida statues "776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm." you'll find where you're going off the rails.

I would not identify myself as much of a "whiz" on anything under any circumstances; that is not my place. Thank you for posting the link to the actual FL statutory language. It made for interesting reading and comported fully with my original understanding of the statute and assumptions stemming from that.

My previous legal analysis, therefore, stands unamended. I am sorry I cannot support your interpretation of the statute. FL provides no "immunity from civil suit after a shooting." It provides for a presumption of intent against the goblin during a forcible felonious entry to statutorially defined premises. My previously stated opinion is by no means "off the rails." Perhaps it is better you hear this now from me rather than from a judge under more onerous circumstances.

There is no caselaw cited on the statute. To my knowledge, there is no caselaw at this time on the statute at all. Caselaw come from appellate judicial opinions in the jurisdiction on actual facts and circumstances appearing in actual cases at bar. You certainly don't have to accept my legal analysis, but you owe it to yourself to obtain a competent FL legal opinion before you go off, as we say, half-cocked.

[number1sixerfan]

Originally Posted by archosman

You know what? If there's a doubt in your mind then don't buy one. Seriously.

All of us who own firearms know that this could always be a possibility and have had to think and consider what we would do if this scenario ever came around. I'd rather you not own one than have one and commit a tragic mistake.

It may sound like I'm being a bit of a prick, but in the long run that makes our sport safer and lessens the burden on others considering a purchase.

Killing someone is a bad thing... even if it's deserved. If there's even a teeny doubt you may not be able to pull the trigger - don't get one for home defense.

I am thinking differently. Why not ask a question about how others view the situation instead of my just going to buy a gun without thought.

I am only asking because I want to make an informed purchase. Currently I go to the local range and shoot. It is too expensive to keep renting the ammo and gun, so that is another reason.

I am just curious as how other gun owners think. I thought for sure I wouldn't be the first person to have reservations like that.

There was a man on my street that was killed last year by two robbers. He gave them what they wanted and they still killed him. I refuse to be in that same situation with no way to protect myself. It's the laws that I want look at and I want to go about everything as responsible as possible.

[gpalmer]

Originally Posted by Old Pa

I would not identify myself as much of a "whiz" on anything under any circumstances; that is not my place.

I have to say your insights and opinions have been very enjoyable over the years. I have come to look forward to your posts and value your input highly. Generally we pretty much think alike.

Originally Posted by Old Pa

Thank you for posting the link to the actual FL statutory language. It made for interesting reading and comported fully with my original understanding of the statute and assumptions stemming from that.

Actually, it diverges from my understanding of your previous posts. This may be my misunderstanding. It clearly states that the use of deadly force is reasonable in the case of someone forcibly entering your structure. This diverges from the common "Castle Doctrine" where you still have to prove you were in the right to use deadly force. This is not at all how I interpreted your previous postings, my apologies if I misunderstood their intent.

Originally Posted by Old Pa

My previous legal analysis, therefore, stands unamended. I am sorry I cannot support your interpretation of the statute. FL provides no "immunity from civil suit after a shooting."

That's a red herring since that is a side issue. That's an entirely different part of the statutes. Let's get the first issue resolved before we go for the second discussion.

Originally Posted by Old Pa

There is no caselaw cited on the statute. To my knowledge, there is no caselaw at this time on the statute at all.

That would be a fundamental misunderstanding on your part. You seem to be confusing this with "Castle Doctrine" and this preceded "Castle Doctrine" by a number of years. It was enacted after Cuba dumped their prisons on our shores and the crime rates shot up.

Originally Posted by Old Pa

Caselaw come from appellate judicial opinions in the jurisdiction on actual facts and circumstances appearing in actual cases at bar. You certainly don't have to accept my legal analysis, but you owe it to yourself to obtain a competent FL legal opinion before you go off, as we say, half-cocked.

I've already gotten the opinion of Jon H. Gutmacher who is the acknowledged expert on Florida Gun Laws. His book is not only something every Florida gun owner should own it's even used to train the law enforcement community. For his analysis go here. You'll see the exact same thing I've been telling you. It is an absolute presumption that the homeowner was in the right with the only caveats the ones I linked to above. Not a jury instruction type presumption, the law enforcement personnel in theory can't even attempt to prosecute you. You can't be performing illegal acts, shooting at the Po-Po, etc. but so long as your heart is pure and you have made sure of the points I have covered in this thread, you're good to go.

The reality of Florida gun law is that it is almost unthinkable for anyone to get jammed up if the other person was committing a seriously illegal act, especially a felony. After one incident where a homeowner shot a guy who was stealing his compressor they quoted one of the local attorneys as "I would be stunned if he were charged since the other person was in the midst of committing a felony." Long story I won't get into, but it is NOT legal in Florida to shoot someone because they are stealing your property.

I personally think this little sidebar is very instructive for anyone wanting to use a weapon for home defense. Old Pa is what I would consider an expert in his state laws and I would be willing to bet dollars to donuts in "Castle Doctrine" as is it usually defined. I have a tremendous amount of respect for Old Pa's opinion since it is almost always dead on.

Generally, most of the "Castle Doctrine" laws are very similar since they were all set in motion by the NRA and therefore shared a common base. Most of them have little patches here and there which keep them from being exactly the same. And in spite of this, the reality of their application in a particular state is not going to be the same.

That means that you MUST become an expert in your state laws or you can make your life a WHOLE LOT worse. These aren't nerf guns, you're playing for all the marbles. Saying you're sorry after the fact and you didn't meant to make a mistake isn't going to change what happens to you, at least not enough that the repercussions won't change your life forever.

[gpalmer]

Originally Posted by number1sixerfan

It's the laws that I want look at and I want to go about everything as responsible as possible.

That I think, is the key point. It doesn't matter how great a shot you are, if you do not understand the firearm laws as they are written and enforced in your state you can get yourself in a lot of trouble. If you aren't willing to put in that effort than I would suggest another approach. If you are, then understand that it's a lot of responsibility.

It seems like you have your head screwed on straight though. The worst are the people who think that carrying or owning a gun gives them some sort of superpower. It doesn't, it carries a lot more responsibility with it than it gives power, at least to my mind.

[Old Pa]

Originally Posted by number1sixerfan

I am just curious as how other gun owners think. I thought for sure I wouldn't be the first person to have reservations like that.

Have you read back through this thread completely? Others and myself have posts where we discuss our own approaches to these questions and issues. I would just say here do not plan to defend yourself with a firearm if you are not ready, willing, and able to defend yourself with hands, feet, elbows, knees, teeth and whatever else might fall to hand in your moment of need. On this, I would recommend you read a very short book by Jeff Cooper entitled "Principles of Personal Defense."

Humans for the most part have high psychological resistance to killing of other humans and find even justifiable self defense homicide to have high psychological cost. This has been studied in practical terms by Dave Grossman who wrote "On Killing" which I would recommend to you. Both Colonel Cooper and Colonel Grossman know of what they write.

Originally Posted by gpalmer

Actually, it diverges from my understanding of your previous posts. This may be my misunderstanding. It clearly states that the use of deadly force is reasonable in the case of someone forcibly entering your structure. This diverges from the common "Castle Doctrine" where you still have to prove you were in the right to use deadly force.

That's a red herring since that is a side issue. That's an entirely different part of the statutes. Let's get the first issue resolved before we go for the second discussion.


That would be a fundamental misunderstanding on your part. You seem to be confusing this with "Castle Doctrine" and this preceded "Castle Doctrine" by a number of years. It was enacted after Cuba dumped their prisons on our shores and the crime rates shot up.


I've already gotten the opinion of Jon H. Gutmacher who is the acknowledged expert on Florida Gun Laws. His book is not only something every Florida gun owner should own it's even used to train the law enforcement community. For his analysis go here. You'll see the exact same thing I've been telling you. It is an absolute presumption that the homeowner was in the right with the only caveats the ones I linked to above. Not a jury instruction type presumption, the law enforcement personnel in theory can't even attempt to prosecute you. You can't be performing illegal acts, shooting at the Po-Po, etc. but so long as your heart is pure and you have made sure of the points I have covered in this thread, you're good to go.

The reality of Florida gun law is that it is almost unthinkable for anyone to get jammed up if the other person was committing a seriously illegal act, especially a felony. After one incident where a homeowner shot a guy who was stealing his compressor they quoted one of the local attorneys as "I would be stunned if he were charged since the other person was in the midst of committing a felony." Long story I won't get into, but it is NOT legal in Florida to shoot someone because they are stealing your property.

Generally, most of the "Castle Doctrine" laws are very similar since they were all set in motion by the NRA and therefore shared a common base. Most of them have little patches here and there which keep them from being exactly the same. And in spite of this, the reality of their application in a particular state is not going to be the same.

That means that you MUST become an expert in your state laws or you can make your life a WHOLE LOT worse. These aren't nerf guns, you're playing for all the marbles. Saying you're sorry after the fact and you didn't meant to make a mistake isn't going to change what happens to you, at least not enough that the repercussions won't change your life forever.

Thank you for posting the link to Mr. Gutmacher's website. For the benefit of others, Mr. Gutmacher is an FL attorney and author who appears to make his livlihood in part from defending individuals who have successfully defended themselves and are now charged criminally or are being sued civilly. BTW, this has turned into quite a little national legal industry. While Mr. Gutmacher uses the term "absolute presumption," in his website explanation, FL Chap 776.013 (1) provides "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:" and then lists other conditions which must have existed. This is the language of a rebuttable presumption, a fact question where all evidence must be put before the finder of fact. As such, I do not understand Mr. Gutmacher's assertion of "absolute presumption" and will now attempt to explain this and other issues in your quoted post. I note also that Mr. Gutmacher invites personal contact with individuals with actual cases under the law and I would not consider the website explanation as an opinion on a particular self defense transaction.

Law has historically been filled with what are termed "terms of art"; words which have very precise legal meaning which may differ from their common usages. Legal terms of art have to be used exactly in legal analysis to have meaning and validity.

Legal cases, both civil and criminal are tried on the facts and law in the lower trial court. The judge or the jury determines what the facts of the transaction were from the evidence presented to them. The judge dertermines both the law of what is admitted into evidence and the appropriate law to apply to the facts as they develop through that evidence. If there is law to apply to the determination of facts where there is a jury, the judge gives the jury specific instructions on how to apply that law to the facts. Along with running the show, the trial judge therefore has lots on her/his plate, all happening pretty much in "real time."

After trial, either or both parties may be dissatisfied by the results or verdict. The trial lawyers had better have gotten all the facts they want into the record, however, because barring judicial or prosecutorial misconduct, there is no other opportunity to get evidence into the record. The trial court record, as taken down by the trial court court reporter, and the physical evidence that is admitted are the only facts that will be seen or considered by any higher appellate court.

If the result dissatisfaction is with the application of law, however, trial lawyers have a limited opportunity to have the trial judge's legal ruling reviewed by a higher court, the appellate court, as a matter or right, provided that they have preserved their objections in the record at the time of trial. The vast majority of trial decisions do not get appealed. The foregoing is an oversimplification, but hopefully it will suffice for our purposes.

Caselaw, as a legal term of art, is the written opinion of the appellate court on the questions of law raised by counsel in an appealed case after reading written briefs of both sides and after argument of counsel in support of those briefs. Caselaw is not statutes, learned treatises, or other written materials. To the best of my knowledge, the new FL "castle doctrine" statute is too new to have folks shoot goblins while relying upon it, come to civil or criminal trial depending upon its rebuttable presumption for a part of their defense, and to have FL appellate courts examine the law as to its constitutional legality and as to its application to an actual case at bar. Depending on the grounds of an appeal, dissatisfied parties may appeal to the FL Supreme Court and the U.S. Supreme Court. Those courts have discretion as to which cases they hear, but the decisions of those courts on specific points of law and then controlling on all courts under them. Issues on the FL "castle doctrine" will not be clear and settled from a legal point of view until these courts have had their say on actual cases. This takes years.

Presumptions, either rebuttable or irrebuttable, are also legal terms of art regarding the facts of a case. "Absolute presumption" is legally meaningless. We remember that the facts of a case are determined at trial by either the trial judge or a jury. Rebuttable presumptions, such as the "castle doctrine," if applied, are great boons to the party they serve. Rebuttable presumptions mean that the finder of fact, judge or jury, must find in favor of the party they support barring a showing by the other party that the presumption should not be applied. The standard for the showing against the presumption may be set at several different levels such as (in ascending order) a preponderance of the evidence, clear and convincing evidence, or evidence beyond a reasonable doubt. The standard for showing against the presumption in the "castle doctrine" would be the preponderance of evidence standard, which may be viewed as 51%. But the presumption is a fact question and the judge is going to let all evidence on both sides of the question into evidence or face a mistrial being determined by the higher court.

So when, in the middle of the night, three motley goblins with guns and knives come blasting into the FL condo I have rented for the month of January, I will do my absolute best to send all three "beyond this veil of tears" with 9mm, folding lockblade, kitchen knives, chairs, hands, knees, elbows, feet, and teeth. And if I am "successful", which we will define as surviving with wounds, I will have the opportunity to present to the police, that states attorney and opposing counsel(s), and, probably, one or two FL judges and juries my side of what happened and what was going through my mind at each and every instant of the horror. BTW, since any normal person will be "absolutely freaked out" after surviving such an attack, it would be best to limit communications with police to prompt notification, professional cooperation, but only "name, rank, and serial number" until properly represented by local counsel. In FL, I would probably be calling Mr. Gutmacher, who would probably want low five figures up front to get involved.

NOTE: Preliminary advice to prospective self defense clients dealing with the police? SHUT UP! Admissions against interests cannot be taken back, are actively solicited by investigators, and are admissable into evidence as exceptions to the Hearsay Rule. This is but one reason I am concerned about Mr. Gutmacher encouraging false confidence in his representation of the "castle doctrine."

And the states attorney and opposing counsel will have opportunity to present whatever admissable evidence they may develop on the same facts and circumstances. The judge and/or jury will get to hear that I am a knowledgeable and committed firearms owner and shooter ("gun nut") with way too many guns, reload and shoot thousands of rounds a year, have gone to many classes and train regularly at my own expense, bring a gun along on vacation, and anticipated the goblins attack enough to have made lethal preparation for it. They will probably want to put my posts in this thread and other similar threads as to my "state of mind." Only then will the judge or jury consider the "castle doctrine" presumption as to whether it applies to all of the facts in the case.

All this time, the states attorney and opposing counsels will be making offers to stop this prosecution/litigation hell if I will accept a lesser included offense or pay something less than their exorbitant demand. All this time I will be paying my own local counsel and dealing with the effects on myself and my family. And this is because all of us will not know for certain if the FL "castle doctrine" will apply to the facts of my case until the finder of fact in my trial court make that determination. I hope I have clearly explained this, clearly enough that you may see the months and years of hell even a successful self defense shooter must endure.

BTW, it remains my absolute and complete intention to fight the goblins "tooth and nail." This is because I am selfish, protective and stubborn by nature and would be immediately really, really pissed off if anybody broke in or attacked me or mine. For this reason, I take Col. Cooper's instructions on situational awareness as my mantra as I realize my best protection is prevention, and the second best is recognition of threats.

[gpalmer]

Originally Posted by Old Pa

Thank you for posting the link to Mr. Gutmacher's website. For the benefit of others, Mr. Gutmacher is an FL attorney and author who appears to make his livlihood in part from defending individuals who have successfully defended themselves and are now charged criminally or are being sued civilly.

Actually that is a remarkably disparaging assessment of Mr. Gutmacher's qualifications. Mr. Gutmacher occupies a position in Florida that appears to be unique among the states, at least those I'm somewhat familiar with. He is the "go to" guy for anything concerning gun law in Florida. His book is the bible for Florida, not only a great learning resource for the Florida gun owner but also used as the textbook at many of the Florida LEO training academies. He is the 800 pound gorilla when it comes to Florida firearms law.

Originally Posted by Old Pa

While Mr. Gutmacher uses the term "absolute presumption," in his website explanation, FL Chap 776.013 (1) provides "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:" and then lists other conditions which must have existed. This is the language of a rebuttable presumption, a fact question where all evidence must be put before the finder of fact. As such, I do not understand Mr. Gutmacher's assertion of "absolute presumption" and will now attempt to explain this and other issues in your quoted post.

Your writeup here is excellent and a fantastic writeup of the law as it stands in most "Castel Doctrine" states. Unfortunately, you extend that to include Florida and there you get yourself into trouble.

I took the time today to reach out to some of my law enforcement friends in the state and get their input on the simple question of what would happen in the case of a home defense shooting which did not violate the conditions set forth in section 776.013.

Response 1, from retired sergeant with local agency with over twenty years service:
If it didn't violate 776.013, why would it need defending in court at all? All "homicides" (one human killing another human being) are reviewed by the State Attorney's Office and then if he thinks that there might be a question, he presents it to the Grand Jury. If the SAO is worth his salt, he will instruct the Grand Jury that it fell under 776.013 and they will return a No True Bill and the homeowner is off the hook and there is no court appearance.

Response 2, from retired sergeant with another agency, also with more than twenty years service before a sniper attack on duty retired him:
It really depends on WHERE it happened. and the exact circumstances. In a liberal area it could indeed take some time. But if the person shot has no connection with the homeowner whatsoever, and it happened outside of one of the liberal enclaves all the homeowner would be waiting for is the State Attorney to announce no charges were going to be filed. and they would not be arrested by the investigating agency to begin with.
NOTE: I am not in one of those liberal enclaves, so that part of things really doesn't apply.

The absolute presumption that you are having trouble understanding also applies to charges being filed. To charge the homeowner, the first thing the charging agency has to overcome is section 776.013. they have to prove or have reason to believe they can prove one of the following:
(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.

[gpalmer]

BTW, I also wanted to add a couple links to counter your statement about there being no statutory protection in Florida from civil suits after the use of legally justifiable force.

First One, GunLaws
Second One, NRA