FLORIDA FIREARMS – Law, Use & Ownership

A Lesson on How Complex the Florida Self Defense Laws Really Are.
copyright 2019 by Jon H. Gutmacher, Esq.

Too many folks who are not lawyers think reading the statutes gives them an understanding of the law. The problem with that theory is they are not trained in how a statute is legally interpreted, and more so, they do not understand that unless you are also familiar with the case law – a simple reading of a statute may give you a totally incorrect impression of the law. Even for a trained attorney, there are just too many pitfalls – and rarely can an attorney give an instant correct answer on interpretation of a statute he or she has not researched before. A great example of the complexity of the “use of force” statutes is a rather new Florida appellate case, Garcia v. State, 44 Fla.L.Weekly D2859 (Fla. 2DCA 11/27/2019).

The decision in this case arise from the denial of a pre-trial motion for immunity under the Florida Statutes. The facts show that Mr. Melchild invited some acquaintances to his home, and once arrived they asked if they could invite some additional friends, one of which was Mr. Garcia. While at the home three of these guests went into a bathroom, locked the door, and began to use drugs. When Melchild found out, he demanded they all leave. Garcia continuously refused saying he needed to wait for his ride. Melchild then physically grabbed him to force him outside, and Garcia physically resisted his efforts. At this point the testimony radically departs with Garcia saying that Melchild and another guest forced him to the ground, were punching and kicking him, and slamming his head into the ground to the extent he was bleeding and dizzy. Because of this he feared for his life or great bodily injury, and gouged Melchild’s eye, causing serious injury. Melchild and the other guest denied hitting or kicking Garcia. The trial judge held Melchild’s testimony credible, and not Garcia’s, and also found that at the time Garcia gouged Melchild’s eye – Garcia was a trespasser, and that Melchild was using lawful force in removing him from the home. Thus, he was not entitled to immunity as he was (1) involved in criminal conduct, and (2) not at a place where he had a right to be.

The appellate court reversed finding a number of errors all requiring a new hearing. First, the appellate court said the trial court’s reliance on Melchild lawfully ejecting a trespasser under F.S. 776.031 was not applicable because this event happened inside a dwelling, and in F.S. 776.031 the use of non-deadly force to remove a trespasser only applies to property not a “dwelling”. (776.031 states reasonable non-deadly force can be used to remove a trespasser to property not a dwelling) Secondly, the appellate court noted that while both sections 776.012 and 776.013 have a requirement that a user of deadly force (ie – the eye gouge – ie – “great bodily harm”) be in a place where they have a right to be, and not involved in criminal conduct – these requirements do not defeat self defense or immunity on their own – but only require that the “retreat rule” first be applied to determine if retreat is possible, and if so, whether such would not expose the defender to unreasonable risk of harm. However, since the trial court never considered whether or not Mr. Garcia was able to comply with the retreat rule, the issue had to be relitigated. Likewise, the appellate court held that the trial court failed to determine whether the use of the eye gouge was reasonable in the sense whether Garcia had an objectively reasonable belief that that degree of force was necessary to stop the attack on himself.

Not considered by the appellate court was the application of F.S. 776.041 – also known as the “aggressor rule”, which can completely obliterate the right of self defense. And whether the trial court correctly ruled on the use of force to remove a trespasser under the common law. Either of which might have sustained the trial court ruling despite the oversights.

So, the case gets returned to the trial court to conduct a new immunity hearing, and Garcia gets a second bite at the legal apple. Chances are the result will be the same, but it strategically helps the defense no matter what the outcome. On the other hand, it should show you how complex these issues really are – and why I generally discourage folks from reading the statutes on their own without also reading my book – so they actually understand how they work in the real world. On that note – the merriest Christmas, Chanukah, and New Year, to you all.