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Old December 27, 2011, 03:34 PM   #1
TheKlawMan
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The Castle Doctrine

Nothing posted in this thread is legal advice and everything said is offered for purposes of entertainment and to encourage the interchange of ideas. Before reluying on anything contained in it a reader must get an opinion from a competent attorney licensed to practice law in the state where they castle doctrine may come into play.

Some have posted that Florida law is different than California which does not have a castle doctine. The Florida statutes are found at That is incorrect. (Note that BillWeise is very prominent in the defense of gun owner's rights.) http://www.thehighroad.org/archive/i.../t-522302.html

The Florida statutes are found at http://www.leg.state.fl.us/Statutes/...EChapter%20776
Pay particular attention to 776.013(1) which begins:
Quote:
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:
Quote:
Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant
or substantial physical injury. Cal Penal Code Sec. 198.5

Castle Doctrines give rise to a presumption that the shooter acted with a reasonable fear of imminent injury or death, but presumptions can be rebutted. http://www.buckeyefirearms.org/node/7526 This is from another gun rights organization. Basically, a presumption is an evidence shifting mechanism. Normally, one has to prove the existence of facts by evidence, but a presumption relieves one of the burden of proof. However, if any evidence is introduced to contradict the existence of the presumption then the burden of proof shifts back.

In other words, if some evidence comes to light to show that you shot when you did not hold a reasonable fear of imminent injury or death, you will have to prove that you indeed held one. If the evidence is such that the intruder was defenseless and immobile when you pulled the trigger for a second time, you well may find that the castle doctrine will not shield you.

Even if it is true that a double tap is some kind of industry standard, I fail to see how that is going to necessarily result in a ruling of justifiable homicide or a defense civil judgment. The argument reminds me of the old spring trap cases where premises owners set traps to automatically respond with deadly force wheter or not a person had a reasonable fear of injury or death.

This industry standard argument really troubles me. What industry was Arizona talking about. The law enforcement industry is one thing, the combat soldier's is another and too often for my taste what may be done in one or both of those two is confused with the rights of a home owner.

The thread that kicked this one off is found at http://thefiringline.com/forums/show...=472680&page=2

Last edited by TheKlawMan; December 27, 2011 at 03:53 PM.
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Old December 27, 2011, 03:45 PM   #2
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That's great.

What does this have to do with shotguns?
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Old December 27, 2011, 04:04 PM   #3
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Quote:
What does this have to do with shotguns?
Good point.

Moved to L&CR.
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Old December 27, 2011, 05:05 PM   #4
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I always like to point out in threads like this (but only for purposes of entertainment) that the castle doctrine works best when you have a castle. But mind you, a permit was required to have a castle when it really meant something, which I believe was called a license to crennelate.

And we think we have too many laws.
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Old December 27, 2011, 06:20 PM   #5
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Castle doctrin or not. Preplan for the shoot and hope you never have to use it.

after the shoot Call 911 and then your lawyer follow his/her advice.

What you say immediately after the encounter will be used against you. The cops will write their report based on THEIR FAULTY MEMORY.

After a shooting LEOs are not required to make a statement until 24 to 48 hours have elasped from the time of the shoot. My supervisors ordered officers to shut up and not talk until their lawyer was present.

Unfortunately, ordinary citzens are not affored this protection.
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Old December 27, 2011, 07:27 PM   #6
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Quote:
Originally Posted by TheKlawMan
Castle Doctrines give rise to a presumption that the shooter acted with a reasonable fear of imminent injury or death, but presumptions can be rebutted.
No, that is not correct. A "Castle Doctrine" law says that a person who is within his/her home is allowed to defend that home against unlawful entry using any means available, up to and including lethal force. The language varies by state, but that's what a Castle Doctrine law says. There may be a few states that express the Castle Doctrine as a presumption of fear of death or serious bodily harm -- but I am not aware of any that do so. Perhaps your state uses such language?

What creates confusion is new laws (or amendments to existing laws) in a few states that remove the duty to attempt to retreat before you are allowed to use lethal force outside of the home. These are the so-called (by the media) "stand your ground" laws. Where they exist, they basically say that a person may defend himself anywhere he/she has a legal right to be, withOUT any need to attempt to retreat before he/she is allowed to use lethal force. Many posters on gun boards cal these no duty to retreat laws "Castle Doctrine" laws, even though they aren't.
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Old December 27, 2011, 07:31 PM   #7
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Aguila Blanca, The Castle Doctrine only creates a presumption in the majorityh of states with one. For example, the statutes of Florida and Calfornia, the ones that gave rise to the discussion, expressly state that it creates a presumption.
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Old December 27, 2011, 07:57 PM   #8
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So for entertainment purposes, just cut to the chase and tell us your solution.

Shoot once and wait and see what happens? If so for how long do you wait?

Handguns, all handguns are realitivley puny and inefficient at providing instant incapacitation. Standing around wating for a result, even for a second or two could cost you your life.

If you don't mind could you also provide some case evidence to support your assertions. I'm talking about where a shooting was ruled unjustifiable because the person fired more than once.

Most all of us are all aware of the Oklahoma pharmacist, his incident was caught on video, he went and retrieved another handgun and shot a man who was lying on the floor unarmed, so I think most people agree it was unjustifiable. So you can skip that one.
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Old December 27, 2011, 08:12 PM   #9
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Quote:
That's great.

What does this have to do with shotguns?
It applies to shotguns and all types of firearms, but was directly in response to post on a shotgun forum thread advocating the use of the double tap for home defense. http://thefiringline.com/forums/showthread.php?t=472680
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Old December 27, 2011, 08:20 PM   #10
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nate, I thought you were the guy who knows everything and doesn't even need to have an attorney explain the Castle Doctrine to them? If that is the case you must know all about all the reported decisions on the Castle Law so I see no need for me or anyone to take the time to look any of them up for you; especially when you already identified the pharamcist case. Or do I misunderstand you and are you saying that there are no decisions in which a shooting was ruled unjustiable because a shooter fired when the evidence showed that intruder no longer posed a threat.
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Old December 27, 2011, 08:43 PM   #11
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No, I want you to provide evidence where multiple shots in a short span of time, led to an unjustifiable ruling. You're the one making the claim, its incumbent on you to provide supporting evidence.

My assertion is someone could shoot an assailant, in some localities, with an elephant rifle and the police and prosecutors wouldn't care, as long as they were justified in shooting in the first place.

The pharmacist in Oklahoma could have shot the robber 6 times with a .500 S&W Magnum and most likely have been in the clear. His actions however, were on video and not just the claim of the robber's accomplice. If he reloaded and fired a few more shots, from his same position,he probably would have still been cleared. However, he went and retrieved another handgun, walked up close to the prostrate man and then shot him.

Where do I ever claim I know everything? I claimed I can read and comprehend the Florida Castle doctrine, with out the assistance of a lawyer, which is correct.
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Old December 27, 2011, 09:10 PM   #12
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Nate, Forgive me if I seemed to imply that you were incapable of reading the Florida statues codifying a version of the Castle Doctrine. Your commentary on its meaning speaks for itself as to your ability or inability to construe those statutes. If you want a recent case on the application of the Castle Doctrine in Arizona look for the one where the police and district attorney are considering bringing charges against an attorney who shot and killed a man that chased him dosn and attacked the attorney in his car. As far as I know there has been no decision reached as the incident is barely a month old. By now you are aware that I have placed you on ignore as I no longer wish to read your juvenile posts. I would also ask that you address no further posts to me on this or any other thread. Let's just say we agree to disagree.
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Old December 27, 2011, 09:19 PM   #13
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Quote:
Castle doctrin or not. Preplan for the shoot and hope you never have to use it.

after the shoot Call 911 and then your lawyer follow his/her advice.

What you say immediately after the encounter will be used against you. The cops will write their report based on THEIR FAULTY MEMORY.

After a shooting LEOs are not required to make a statement until 24 to 48 hours have elasped from the time of the shoot. My supervisors ordered officers to shut up and not talk until their lawyer was present.

Unfortunately, ordinary citzens are not affored this protection.
I generally agree with you Itc444. I am not so sure about the part where ordinary citizens are not afforded the protection regarding not needing to make a statement. The police will lean on you to get you to make a statement, but you have the right to remain silent and I believe you cannot be compelled to give a statement with or without your lawyer present; not 24, 48 hours after a shooting, or ever (absent a grant of immunity).

Last edited by TheKlawMan; December 27, 2011 at 09:31 PM.
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Old December 27, 2011, 10:59 PM   #14
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Those of you in love with Florida's Castle Doctrine might ask yourself where it leaves a perfectly innocent bystander or their survinving family if a completely reckless homeowner blasts away with a Saiga 12 in a crowded urban environment but the Castle doctrine if found applicable. One writer opines that the reclless homeowner is immune from criminal or civil action for the death or injury of he innocent bystander.
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Old December 27, 2011, 11:43 PM   #15
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Quote:
Originally Posted by TheKlawMan
Those of you in love with Florida's Castle Doctrine might ask yourself where it leaves a perfectly innocent bystander or their survinving family if a completely reckless homeowner blasts away with a Saiga 12 in a crowded urban environment but the Castle doctrine if found applicable. One writer opines that the reclless homeowner is immune from criminal or civil action for the death or injury of he innocent bystander.
You are still doing your best to confuse "Castle Doctrine" with "no duty to retreat."

I am the homeowner when I am in my home. That's my "castle." When I am shopping with my wife in an urban or suburban mall, I am still the owner of my castle, but I am not IN my castle, so laws pertaining to it don't apply. If I open fire recklessly in a shopping mall, it doesn't matter whether I own a home, rent an apartment, or sleep under a bridge with the trolls. Likewise, if I employ lethal force to defend myself in an urban mall setting and nobody is injured other than my assailant, it likewise matters not al all if I own a home, rent an apartment, or sleep under a bridge with the trolls.

Homeowner status has nothing to do with your right in Florida to defend yourself against an attack if you are in a place where you may legally be. The "stand your ground" provision is in a separate subsection of the self-defense statute.

Last edited by Aguila Blanca; December 27, 2011 at 11:52 PM.
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Old December 28, 2011, 02:40 AM   #16
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Blanca, I am confusing nothing. Please read section 776.032 of Florida Statutes:

Quote:
776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 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, as defined in s. 943.10(14), who was acting 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 was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
The section immunizes a shooter from suit by an innocent bystander injured or killed by a reckless shooter so long as said force is being used in circumstances covered by one of the three itemized subsections. You are correct in that it covers more than the historic common law Castele Doctrine.

Tell me this. Two couples are having drinks on the screened in porch of the house belonging to John. Everyone is plastered. Jim makes a crude remark about John's wife Jill and and argument breaks out. Jim is asked to leave and he leaves the house only to return a few minutes later. John and his wife, Jill, refuse to allow John onto the porch, but John forces his way in by breaking the lock on the screen door. Even though Jim hasn't done anything to indicate that he intends bodily harm to anyone, other than yankihng the porch screen door so hard as to break the hook latch, Jim pulls a 9 mm out of a drawer and starts firing rapidly in the general direction of Jim. All 8 shots miss Jim, but Nancy, Jim's pregnant wife is shot. She loses the baby. The little girl playing along the sidewalk in front of the house is shot and she loses an eye.

I have it on good authority that drunken John is immune from criminal or civil action under Florida law for shooting Nancy, for killing the baby, and shooting the little girl playing on the sidewalk since he 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 Jim who had or was unlawfully and foricibly entering John's residence.

Please explain how this is not so. Force was definiteley being used against a person who had or was unlawfully and forcibly entering John's home.
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Old December 28, 2011, 02:55 AM   #17
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I am confused, is there not a CA Castle Doctrine?

Quote:
Some have posted that Florida law is different than California which does not have a castle doctine
CA Penal Code 198.5

Quote:
198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant
or substantial physical injury.
Key points be unlawfully AND forcibly. You (CA home owner) have to know or have reason to believe it was forced entry.


Essentially you are presumed to be in the clear if you have reason to believe someone has entered your abode forcefully AND is not of a household or family member.

As always, shoot and shut up

EDIT: Check this thread out I started quite awhile back. Lots of good information in regards to CA law(s)
http://thefiringline.com/forums/showthread.php?t=425540
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Old December 28, 2011, 03:47 AM   #18
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Everyone is plastered.


thats a problem
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Old December 28, 2011, 06:52 AM   #19
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Okay, here is how I am reading klaw...
This began in a discussion regarding pattern spread in one man's 18.5 inch barrel with one type of round...

I mentioned 2CoM and I think that was the trigger to all of this...

First I gathered that if I were to engage with a shotgun and opt for the use of 2 perfectly placed shots in immediate succession (we will call this "double tap" or 2 CoM from here on out) in the initial use of force that I somehow used "excessive force" that may not have occurred had I used my Tupper Forty in similar fashion.

Then I began to think that klawman feels that folks will fictionally wrap themself in the "castle doctrine" security blanket and may use lethal force when they were not actually justified to do so...

As to the first, I am deploying the ultimate equalizer tool in an event that has me quite concerned with my immediate and future well being... I am gonna call on that equalizer to do what I need and I ain't gonna hold it back...

As for the second... All them legal terms of presume etc matter naught to me. If I engage a menace in my home or out on the streets, it will be, literally, bloody obvious that I was within my bounds with the force I deploy...

For instance, I may have the right to retreat but not the obligation to do so... But at that moment in time I will be obviously and loudly STANDING MY GROUND before force is used by me...

In my home... Well you were challenged to present case fact of multiple rounds being the deciding factor in justified or other use of force...

I will tax you further or make it easier however you look at it... All you have to do is pick out any "Unjustified" decisions of a case where the resident of a dwelling (or visitor to same) was claiming self defense under the wording of the CD law... Then we can quickly weed thru the ones where a 'banger or thug or jilted lover was suckerin' a person to show up to watch their own execution.

I bet there ain't 2 dozen INNOCENT homeowners in florida prisons due to mis-use of force under a delusion of immunity from prosecution...

Brent
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Old December 28, 2011, 09:07 AM   #20
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Well, I can't tell what the topic is supposed to be based on the original post. From the link and hogdogs post, it looks like the OP is concerned about the legal implications of firing more than one shot in rapid succession to end a threat as soon as possible and is pointing out that the Castle Doctrine does not authorize a person to use deadly force after the threat has ended.

In general, every single shot you fire must have good legal justification. A good example of this would be the Jerome Ersland case out of Oklahoma. Ersland was justified in firing the initial shot that dropped his attacker. He was not justified in firing the second shot as his attacker lay unconscious on the floor.

However, that isn't quite the same thing as firing two shots with a .21-.50 second pause between them at a valid threat. In a life or death fight, the law doesn't require you to pause after every shot and evaluate whether there is still a continuing threat. It just requires you to stop shooting once the threat has ended.

Sometimes that can create a legal gray area... for example, in the Mark Abshire case, he was attacked by multiple men and knocked to the ground. His tooth was cracked and one man was kicking his head while another man sat on him and hit him. He drew his pistol and fired two shots at the man on top of him. The first shot hit the man in the front. The second shot hit the man in the back. The attackers gave testimony that Abshire shot the man as he was trying to retreat. Abshire testified that the man turned away from as the second shot was fired and that once he recognized the threat was gone, he stopped firing. Abshire went through a long, painful court case in which he lost his job, his house, and all of his money; but he was acquitted (a search of TFL will reveal more on this case).

So I think there is some validity in pointing out that often a trained shooter can fire additional shots faster than his mind can recognize and react to new stimulus (an attacker turning away or dropping to the ground). If it takes you 0.8 seconds to recognize a threat has ended and you have a .2 split time, the extra 4 shots may be difficult to explain to a jury that isn't packed with TFL members. At the same time, I don't think there is a jury in the world that is going to find that shot #1 was justified but that shot #2 delivered 0.21 seconds later was not.
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Old December 28, 2011, 09:11 AM   #21
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TheKlawMan I also read your response in the shotgun forum and followed to continue this discussion. I applaud you for creating a new thread. Now back to the discussion at hand:

You initially took the original thread OT by your assertion that two shots on an aggressor with a shotgun could be argued as an excessive or uneccessary use of force. I get annoyed when I see these arguments brought up without supporting facts to justify them. That argument can be used to justify almost any harebrained position. For example:

-The use of a .45 could be seen as excessive force
-The taking of multiple shots when using a .22 could be seen as an intent to kill
-The act of shooting in an of itself could be seen as excessive force

If a person still presents a threat, you deal with that issue first, using the force neccessary. The subsequent crime scene and forensic examination along with the statements of those present will be used to "tell the story" of what took place.

I really wish that people wouldn't be so quick to assume the mantle of expert or being more knowledgeable by using the "could" argument.

Part II- Yes, those who live in states with the Castle Doctrine need to understand that it only covers the lawful and reasonably neccessary use of force (all force, not just deadly force).
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Old December 28, 2011, 12:32 PM   #22
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Castle Doctrine or not?... Type of weapon used in a SD situation?... doesn't matter.

A perp breaks into your house, house is dimly lit but you've I.D.'d person as a BG. You have no gun but you use a baseball bat on him(or just your fists), beating him till the imminent threat is gone.
COULD there be a potential 'excessive force' claim brought against you.
You bet.

Same as if you're on the street in a SD situation.

You can bet that somewhere in the court proceedings the question will come up, " Why did you feel the need to hit perp 20 times when he went down after the first 2 hits in which he was probably unconscious?... probably being the key word.

You can also bet that if you have shoot someone one time, you'll answer the question as to why you had to.

I'm not an attorney, but as I read through the CD and SD laws as a whole, I don't see anywhere in them condoning shooting one time or ten, using a ball bat or bazooka. What I do see is that we have the right to defend ourselves with whatever means necessary till there is no longer an imminent threat.

There have been cases where people have been shot with a shotguns as well as handguns which have continue'd to fight. Too, people that have died from one shot with both. Or, in the baseball bat scenario above, people have died from one hit to the head and lived with many.

Through this 'continued' thread there have been many scenario's(including mine) and some strong/heated opine's that have been tossed about, but, if (God forbid) a perp breaks into my house in the middle of the night and I have to go on the defensive with a weapon, it will be at a rate that I see fit till I feel the imminent threat is gone.
A single shot, DT, or multiple shots...each one of you will more than likely do the same.
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Old December 28, 2011, 02:09 PM   #23
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I think there has been a pretty good accross the board exchange of thughts now.

I will try to clarify some confusion as to what I am saying and/or may have arisen.

The Castle Doctrine is nothing new in law having developed as part of English Common Law. California not only follows it, but IIRAC was the first state to codify th doctine in its Penal Code. Florida has drawn a lot of praise and criticism for its "Home Protection" statute and other "Justifiable Use of Force" statutes which arguable go further than the laws of other states.

This discussion was generated by the suggestion that the use of the double tap or controlled pair of shots in a home defense scenario was justifiable. My point was that depending on the facts that second shot may subject the homeowner to criminal prosectution and civil liability. Even if you succesfully defend each you may find yourself bankrupt.

Back to the Florida law. While I do not know enough about its laws or these particular ones, those of you who believe it is very broad may be correct. some things I have come across indicate its interpretaitions by the Florida Supreme Court effectually render it a grant of immunity in a home intrusion situation.

Some experts are concerned that the immunity converred by Florida not only extends to the bad guy, but to criminal or civil action for the injury and killing of innocent bystanders as long as it is due to force being used to defend against ann intruder. I do not know if it goes that far. It may read like it does but ambuguous laws are usually interpreted so as to fulfill the intent of the law makers and I would hope that the record supuports that the intent of the law was to immunize the shooter as for shooting the intruder.

My personal feeling is if I or my family are in danger I will protect them but I will use reasonable force even if I err on the side of protection. I will do so even if in my state, California, I may have to deal with criminal and civil matters. I will not go so far as to advocate a double tap.

As for Florida, I don't have to deal with its laws, but if I was a Floridian I would be wondering what kind of nuts are running the state.

And yest Blanco, while I have focusedd on the codification of the Castle Doctrine much of what I have said applies to the defense of persons outside the home, in vehicles, public places, and to some extent the defense of property.
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Old December 28, 2011, 02:26 PM   #24
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Quote:
I bet there ain't 2 dozen INNOCENT homeowners in florida prisons due to mis-use of force under a delusion of immunity from prosecution...

Brent
You are probably correct. Florida's justifqble homicide statutes pretty much is a free pass to play judge and executioner. Myself, I don't consider a homeowner innocent when they execute someone away that that is anything but a threat. They may be NOT GUILTY by reason of Florida law, but that homeowner is far from INNOCENT.
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Old December 28, 2011, 02:53 PM   #25
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Quote:
My point was that depending on the facts that second shot may subject the homeowner to criminal prosecution and civil liability
How so? If the state has codified the Castle Doctrine, how could they be subjected to criminal prosecution? If multiple police shoot a suspect upwards of 40 times, how then would a person be prosecuted for protecting their safety in a manner consistent with the law?
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