Legal Cases/Articles - The Florida “Castle Doctrine”
The Florida “Castle Doctrine”
By Jaime E. Suarez
The privilege of non-retreat from the home, which is part of the “castle doctrine,” has early common law origins.1 Justice Cardozo explained the basis of the privilege of non-retreat from the home, stating:
It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home […].2
Furthermore, the “castle doctrine” has been defined to include:
the proposition that a person's dwelling house is a castle of defense for himself and his family, and an assault on it with intent to injure him or any lawful inmate of it may justify the use of force as protection, and even deadly force if there exist reasonable and factual grounds to believe that unless so used, a felony would be committed.3
The Florida Legislature
The Legislature enacted section 776.013, Florida Statutes, effective October 1, 2005, to provide for an expanded right of self-defense for individuals. It eliminates the duty to retreat found under Florida common law.
The Statute’s Highlights
First, Florida Statutes section 776.013 establishes the presumption that a criminal who forcibly enters or intrudes unlawfully into your home or occupied vehicle is there to cause death or great bodily harm; therefore, a person may use any manner of force, including deadly force, against that person.
Second, Florida Statutes section 776.013 removes the "duty to retreat" if you are attacked in any place you have a right to be. Victims are no longer needlessly required to retreat in the face of intrusion or attack. Instead, you may stand your ground and fight back, meeting force with force, including deadly force, if you reasonably believe it is necessary to prevent death or great bodily harm to yourself or another or to prevent the commission of a forcible felony.
Third, Florida Statute section 776.032 provides that a person who uses force as permitted in newly enacted section 776.013, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer.
Florida Statute 776.013
The Preamble to the newly enacted statute states as follows:
"WHEREAS, the Legislature finds that it is proper for law-abiding people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others, and
"WHEREAS, the castle doctrine is a common-law doctrine of ancient origins which declares that a person's home is his or her castle, and
"WHEREAS, Section 8 of Article I of the State Constitution guarantees the right of the people to bear arms in defense of themselves, and
"WHEREAS, the persons residing in or visiting this state have a right to expect to remain unmolested within their homes or vehicles, and
"WHEREAS, no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack, NOW, THEREFORE, "Be It Enacted by the Legislature of the State of Florida:"
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.
(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.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. (4) A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence. (5) As used in this section, the term: (a) "Dwelling" means 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. (b) "Residence" means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest. (c) "Vehicle" means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.
1 See Weiand v. State, 732 So.2d 1044, 1049 (Fla. 1999) (citing State v. Bobbitt, 415 So.2d 724, 725 (Fla. 1982); Hedges v. State, 172 So.2d 824, 827 (Fla. 1965); Pell v. State, 97 Fla. 650, 665, 122 So. 110, 116 (Fla. 1929); Danford v. State, 53 Fla. 4, 13, 43 So. 593, 597 (Fla. 1909); New York v. Tomlins, 213 N.Y. 240, 107 N.E. 496, 497-98 (1914)).
2 See Weiand v. State, supra (quoting New York v. Tomlins, 213 N.Y. 240, 107 N.E. 496, 497-98 (1914)).
3 See Weiand v. State, 732 So.2d 1044, 1049 (Fla. 1999) (citing Falco v. State, 407 So.2d 203, 208 (Fla.1981)).
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