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Old June 4, 2009, 09:41 AM   #21
Join Date: June 8, 2008
Posts: 3,373
I am not worried about false imprisonment (by using handcuffs) of a person who has broken in my home and/or threatened me and my family. To hell with their rights once they have done that.
Of course, it matters not a whit what the homeowner thinks about the rights of an intruder...... that will be entirely up to the courts. And yes, the intruder has rights to due process under the law.

Maybe the best thing is to just keep your weapon trained on suspect until the police arrive?
And what would you do should the perp choose to depart? If you think the answer is "shoot", you had better consult an attorney.

Personally, from the standpoint of risk, I think I want them out. I don't want them to get the upper hand, and I don't want to take the risk of a negligent discharge.

That is if you haven't already shot them already for breaking in your home.....
Uh Oh! Do you actually think you can "shoot them for breaking in your home"?

The state will not impose the death penalty for that, nor can you.

You may use deadly force if necessary to "prevent imminent death or great bodily harm to [yourself] or another or to prevent the imminent commission of a forcible felony" (Florida Statutes, Chapter 776, 776.012, Use of force in defense of person).

You are "presumed to have held a reasonable fear of imminent peril of death or great bodily harm ... if 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 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" (Florida Statutes, Chapter 776, 776.013, Home protection; use of deadly force; presumption of fear of death or great bodily harm).

That presumption may be rebuttable.

None of that above really means that you are justified in any way using deadly force as a punishment for a break-in. Of course, the anti gun community has argued otherwise, because they disapprove of the statutes that relieve the citizen of the duty to retreat and of the additional burden of proof for justifying self defense, and they would like to see the law repealed.

Here's a pretty good explanation of the relevant Florida statute:

The statute says a PRESUMPTION is created. Generally, in statutory interpretation, that means that the burden of proof is simply shifted. Instead of you having to prove you were in fear of your life/bodily harm, the state would have to prove that you were not. Presumptions are REBUTTABLE. That means an intrepid prosecutor who wants to make a career for himself could go after you if you shot this hypothetical intruder in the back on his way out. Just for reference, the law changed in 2005. There are 5 cases on Westlaw since 2006 about this very issue, and that is at the appeals level. (at least one of the cases is about how the new law should be implemented to "offenders" who acted before the new law went into effect). That does not even count the number of cases that showed up at the trial court level, which frankly I am unwilling to go to the trouble of determining.

In Florida, if you shoot someone who is not a threat leaving your home, you are really taking a giant risk. You are banking on prosecutorial discretion, and you may not get it. And frankly, you may not deserve it.

At the very least, if you shoot someone on the way out of your home. Don't say a damn word to the police without your attorney present. Call an attorney immediately. Do what the attorney says. Don't even say anything to 911, other than, "a man has been shot at XXXX address, please respond immediately."
Here's a link to the laws per se:
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