CAR BURGLARIES IN FLORIDA -- SOME THOUGHTS
copyright by jon gutmacher 2016
Good email question received on stopping a car burglary. Here's the question and my response:
QUESTION: A couple sessions ago the subject of using deadly force against a person
burglarizing a locked truck or attempting theft of the truck arose.
Florida seems to classify burglary as a forcible felony. While it would
appear that the use of deadly force is justified against a person in the
commission of a forcible felony, or to prevent / stop a forcible
felony. It also seems that in your 8th edition of "Florida Firearms"
(page starting 315) suggests that the use of deadly force in this case
would probably be considered excessive. The example given on page 315
is very similar to the scenario which raised the question.
As you might well understand, since there were a number of people
present, a number of points of view were considered. Do you have some
additional perspective on this situation which you would care to share
with us?
burglarizing a locked truck or attempting theft of the truck arose.
Florida seems to classify burglary as a forcible felony. While it would
appear that the use of deadly force is justified against a person in the
commission of a forcible felony, or to prevent / stop a forcible
felony. It also seems that in your 8th edition of "Florida Firearms"
(page starting 315) suggests that the use of deadly force in this case
would probably be considered excessive. The example given on page 315
is very similar to the scenario which raised the question.
As you might well understand, since there were a number of people
present, a number of points of view were considered. Do you have some
additional perspective on this situation which you would care to share
with us?
RESPONSE:
Sure, a burglary is a forcible felony. An "attempted burglary" is not, but the statute still allows you to use reasonable force to stop or prevent a forcible felony. Preventing falls into the "attempted" burglary part. However . . . and this is the big "however" -- the "use" of deadly force must always be "reasonable" and "necessary". Generally, that means an imminent threat to life or great bodily harm. In some rare cases it means the crime was serious enough, even without imminent threat to life or great bodily harm -- that deadly force was required to stop it, or stop the perpetrator from escaping.
Examples of death or gbh: rape; murder; armed robbery; kidnapping; home invasion.
Examples of serious not in the above categories: lots of "maybe's", and fact specific such that one jury might say "fine", and another "guilty".
However . . . we get back to "use" of "deadly force". Display is the "use" of a deadly weapon -- but not the "use" of deadly force. It is (or should) always be "reasonable" when attempting to stop or prevent a "forcible felony". But, pulling the trigger without adding a reasonable fear of imminent death or great bodily harm -- will almost always be "excessive force" -- and in that situation, excessive force will either be manslaughter or aggravated battery or aggravated assault (the later if you're a lousy shot).
What if the perpetrator tries to take your gun after you have it out?
Well . . . again . . . that's a question up for grabs and interpretation, but my legal opinion is that you now have an imminent death or great bodily harm situation if he gets it. But, if you have even the slightest chance of doing so -- back away and issue a loud verbal warning as much as possible for legal reasons more than factual. One step back will change your legal position in court. More are better. A loud verbal warning ("Stop, or I'll shoot!) is a very good idea.
What about shooting if it seems he's not deterred and will take the vehicle?
Answer: I don't know.
You now have a situation where deadly force seems to be the only way (ie "necessary") to stop the crime. Is it "reasonable"?
Well, if it's a two hundred dollar junk car -- no. If it's your only way to work, and you can't afford another -- and that's what you're gonna say to the jury: "I killed him because otherwise he would have taken my car, and I'd miss work" -- think how that sounds, and pray you get me or someone like me on the jury. Unfortunately, what is "reasonable" to one person may not be reasonable to another.
What about shooting if it seems he's not deterred and will take the vehicle?
Answer: I don't know.
You now have a situation where deadly force seems to be the only way (ie "necessary") to stop the crime. Is it "reasonable"?
Well, if it's a two hundred dollar junk car -- no. If it's your only way to work, and you can't afford another -- and that's what you're gonna say to the jury: "I killed him because otherwise he would have taken my car, and I'd miss work" -- think how that sounds, and pray you get me or someone like me on the jury. Unfortunately, what is "reasonable" to one person may not be reasonable to another.
copyright 2016 by jon gutmacher -- www.floridafirearmslaw.com
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