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Originally Posted by number1sixerfan /img/forum/go_quote.gif
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.
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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.
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Originally Posted by gpalmer /img/forum/go_quote.gif
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.
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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.
