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"Informal" Castle Doctrine Poll
DanClrk51:
The following was taken from: http://www.gunlaws.com/FloridaCastleDoctrine.htm
Florida "Castle Doctrine" Protects the Innocent
Puts Judiciary on the side of crime victims
News media gets it completely wrong
On March 23, 2005, The Florida Senate passed SB-436, the "Castle Doctrine" unanimously, by a vote of 39 YEAS to zero NAYS. They know something about this bill.
On April 5, The Florida House passed SB-436, "Castle Doctrine" by a vote of 94 YEAS to 20 NAYS, a margin of better than four to one.
On April 26, Governor Jeb Bush SIGNED SB-436, the "Castle Doctrine" into law (Chapter No. 2005-27) It takes effect on October 1, 2005.
The news media nationwide started in immediately with its ?Gunshine State,? blood in the streets, Dirty Harry, vigilante, irrational mass murder nonsense, mythologies, lies and blatant unethical behavior.
A great deal of erroneous information has been written, published and spoken about Florida's new "Castle Doctrine" law.
Claims that the new law will turn Florida into the Wild West are not only an insult to intelligent people but give a patently false portrait of what the bill actually does.
The Florida "Castle Doctrine" law basically does three things:
One: It establishes, in law, the presumption that a criminal who forcibly enters or intrudes 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.
Two: It removes the "duty to retreat" if you are attacked in any place you have a right to be. You no longer have to turn your back on a criminal and try to run when attacked. 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 others. [This is an American right repeatedly recognized in Supreme Court gun cases.]
Three: It provides that persons using force authorized by law shall not be prosecuted for using such force.
It also prohibits criminals and their families from suing victims for injuring or killing the criminals who have attacked them.
In short, it gives rights back to law-abiding people and forces judges and prosecutors who are prone to coddling criminals to instead focus on protecting victims.
SO -- is this the impression you got from the news? Why not? Aren?t media people impartial purveyors of objective facts, with no bias or spin, faithfully and accurately reporting the news? Everyone who believes that?s an accurate description of the news media please raise your hand. See? No hands go up. Despite their protests otherwise, the news media has, in general, and especially with respect to gun issues, become an outrageous purveyor of agenda-driven nonsense on the dark side of the force.
SeanN:
If someone forcefully enters your home you should be able to respond as necessary. I'm all for this.
FarmerRick:
Florida law:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0776/SEC013.HTM
The 2009 Florida Statutes
Title XLVI
CRIMES
Chapter 776
JUSTIFIABLE USE OF FORCE
View Entire Chapter
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.
History.--s. 1, ch. 2005-27.
FarmerRick:
Current Nebraska Law:
Nebraska Revised Statute 28-1409
Revised Statutes ? Chapter 28 ? 28-1409
Use of force in self-protection.
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28-1409 Use of force in self-protection. (1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.
(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;
(b) The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411; or
(c) The actor believes that such force is necessary to protect himself against death or serious bodily harm.
(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:
(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and
(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.
(5) Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.
(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.
Source
1. Laws 1972, LB 895, ? 4;
2. R.R.S.1943, ? 28-836, (1975).
Annotations
1. Elements
2. Evidence
3. Jury instructions
4. Lawful force
5. Unlawful force
6. Miscellaneous
1. Elements
To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be immediately necessary and justified under the circumstances. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).
A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).
In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).
The use of deadly force shall not be justifiable unless the actor believes such force is necessary to protect himself against death or serious bodily harm, nor is it justifiable if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter or the actor knows that he can not avoid the necessity of using such force with complete safety by retreating. State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986).
Pursuant to subsection (4)(a) of this section, to deprive a defendant of the defense of self?defense, the defendant's provocation must be with the intent that the defendant will then cause death or serious bodily injury to the one that the defendant provoked, and it must all occur in the same encounter. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).
2. Evidence
Under subsection (5) of this section, evidence of victims' violent or aggressive behavior which occurred 4 months after defendant shot them was not relevant to the circumstances as defendant believed them to be the night he shot them. State v. Allison, 238 Neb. 142, 469 N.W.2d 360 (1991).
3. Jury instructions
A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).
Jury instruction requiring, as an element of self-defense, that "before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety," was not erroneous under this section. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).
A defendant is entitled to an instruction on self-defense if there is any evidence to support it; this is true even if the defendant does not testify. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).
A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).
Defendant is entitled to have jury instructed on his theory of self-defense if there is any evidence to support it. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).
4. Lawful force
This section provides no defense when a defendant uses force against another's lawful force. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990).
Use of force was prohibited where person being arrested knew that arrest was being made by a peace officer. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).
The use of deadly force is justifiable when the actor believes that such force is necessary to protect himself or herself against death or serious bodily harm unless the actor knows that he or she can avoid the necessity of using such force with complete safety by retreating. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).
Pursuant to this section, if a defendant is justified in using force toward an individual, the defendant is justified in the force employed which mistakenly strikes the actual victim. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).
5. Unlawful force
Record did not establish that victim used "unlawful force" against the defendant. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).
6. Miscellaneous
The excuse of self-defense is applied to the threatening behavior of "another person", not to a generalized group of actors. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).
SeanN:
Thanks for copying and pasting that for us, Rick.
I never understood why we're supposed to have to retreat and leave our home and all of our possessions behind if necessary. Why can't we legally defend ourselves if retreat is an option? It's not like we asked them to come onto our property and threaten us, our belongings, or our families. That's a load of BS imo.
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