The Castle Doctrine

Under Florida law, only two circumstances let you shoot someone. One is to prevent your own imminent death or great bodily harm. (The other is to prevent a forcible felony, which is discussed in a separate essay.) The Florida “castle doctrine” says that you are legally presumed to be in danger of imminent death or great bodily harm from anyone who:

776.013 — 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;

Legally presumed means that the danger of imminent death or great bodilly harm will be a given in court, and no evidence or testimony to the contrary will be allowed. Hence, you may legally shoot anyone who breaks into a house or car while you are in it, or who tries to drag you out of a house or car.

Example 1

On the evening of July 20, 2007, Jimmy Hair was in the passenger seat of a car waiting outside of a Tallahassee nightclub. Charles Harper emerged from the club, screaming at Mr Hair. The angry man yanked open the car door and reached in (thereby unlawfully and forcibly entering an occupied vehicle). He grabbed Mr. Hair and tried to drag him out (thereby attempting to remove another against that person’s will). Hair pulled a .38 calibre revolver from his belt. Horrified to be suddenly looking down the barrel of a gun, Harper turned to run away (or was dragged away by a friend; the facts are unclear). As the now-frightened man tried to flee, Jimmy Hair shot him through the head, killing him. At the self-defense hearing, the prosecutor wanted to present evidence that Hair shot Harper as he was trying to run away, when he was no longer a threat.

Question: Did the judge allow the prosecutor to introduce the fact that Hair shot Harper as he was running away? (Incidentally, I got this question wrong on an exam.)

Answer: No. The evidence was disallowed. The moment that Harper opened the car door he became fair game. In the precise words of the Appeals Court, “The statute makes no exception from the immunity when the victim is in retreat at the time the defensive force is employed.” That Harper was shot while running away is irrelevant. As soon as Harper opened the car door, the legal presumption was that Hair was in danger of imminent death or great bodily harm, and no evidence against that presumption would be allowed.

“What?”, you say. “Florida lets you shoot someone in the back as they run away? That’s horrible!” Horrible or not, it is the law.

Exceptions

Four exceptions. You cannot shoot someone entering your house without permission if:

  • The person has the right to be in the house,
  • The person is retrieving their own child or grandchild from the house,
  • The person is an on-duty cop, or
  • You are engaged in criminal activity in the house.

Example 2

In May 2008, Orville (Lee) Wollard a 53-year-old Sea World employee with no criminal history, came home from work and found his daughter on the porch with her boyfriend. When Lee asked him to leave, the boyfriend attacked him, ripping out stitches from Lee’s recent surgery. The boyfriend left with the daughter. Lee was in so much pain that he went to the bedroom to lie down. Hours later, he awoke to find the boyfriend fighting with the daughter and punching a hole with his fist in the living room wall. Lee showed a pistol and ordered the boyfriend to leave. When the boy refused, Lee fired one round into the living room wall. The boyfriend left and called the police. Lee is now serving 20 years in state prison (the mandatory minimum). Threatening someone with a lethal weapon without intent to kill draws a 20-year mandatory minimum prison sentence. Why did the castle doctrine not apply? Because of exception (a): the boyfriend had every right to be in the house. He was invited there by the daughter.

Definitions

Finally, what exactly is a “dwelling or residence”?

  • 776.015 (5a) — 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.
  • 776.015 (5b) — “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

Example 3

At 2 A.M. on May 2, 2012, Thomas Whitbeck of Deltona FL awoke to the sound of two burglars breaking into a detached shed on his property next to his house. He went outside with a .22 rifle and shot one of them in the leg. According to the Volusia County sheriff’s office, the thieves will be charged with attempted burglary (a possible one-year jail sentence). The homeowner will be charged with aggravated assault (a mandatory minimum 20-year prison sentence). The castle doctrine does not apply because a detached shed is neither a dwelling nor a residence. Also, no state lets you shoot a thief, not even one caught in the act of stealing. (Shooting thieves is discussed in a separate essay.)

Conclusion

Dr. Sweet’s grandfatherly advice is: Do not go into an occupied house or car without permission. Do not try to drag someone out of a house or car. You might be shot. You will not outrun a bullet. As a homeowner, shoot only if the person breaking in was: not invited, not a parent retrieving a child, and not a cop. Do not threaten or shoot a thief outside your house.

 Next time: Shoot a Robber, Not a Thief


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Frank W. Sweet is an NRA-certified firearms instructor who teaches the safe and effective use of handguns for self-defense. He was awarded an M.A. in Civil War Studies in military history from American Military University in 2001. He is the author of Legal History of the Color Line (ISBN 9780939479238), Six Gems of Forgotten Civil War History (ISBN 9780939479023), and of numerous published historical essays. To receive a schedule of his firearms training courses, email to fwsweet@ccwvslaw.org. The information above should not be construed as legal advice.


Other Backintyme sites: Essays on the U.S. Color Line Armed Citizens and the Law
Backintyme Performances YouTube Channel --

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