An Independent Analysis of Fletcher v. State, 44 Fla. L. Weekly D1532 (Fla. 1DCA 2019)
copyright 2019 by Jon H. Gutmacher, Esq.
In the recent case of Fletcher v. State, 44 Fla. L. Weekly D1532 (Fla. 1DCA 2019), the appellate court granted a writ of prohibition requiring the dismissal of all charges against Mr. Fletcher on the grounds of self defense immunity pursuant to Florida Statute 776.032. The case is important in self defense law not so much for what it held, but what it missed. Here are the facts:
Fletcher and his brother went to the home of their sister to assist her in leaving. At the time Fletcher was aware that his sister was living at her boyfriend’s home. The boyfriend was allegedly violent with her, and it was also known he normally carried a firearm. When Fletcher and his brother arrived the boyfriend refused to allow their sister to leave, and Fletcher’s brother got into a physical confrontation with the boyfriend on the front lawn. Fletcher remained on the sidewalk, and called 911. He was armed, and had a valid Florida CWL. When Fletcher saw the boyfriend begin to reach for his waistband, he believed the boyfriend was reaching for a firearm, and further believed that his brother’s life was in imminent danger. He then withdrew his own firearm, and shot the boyfriend in the leg stopping the confrontation. It turned out the boyfriend was unarmed. Police responded, and Fletcher was eventually prosecuted for aggravated battery. He claimed immunity and self defense pursuant to Florida Statutes 776.032, and 776.012. Testimony on what occurred was in conflict, but the trial judge found Fletcher more credible, and that his use of deadly force was “objectively reasonable”, as it was credible that he believed his brother’s life was in imminent danger. Still, the trial judge denied self defense immunity because he found Fletcher and his brother were trespassing at the time of the incident, and therefore Fletcher was under an obligation to retreat prior to using deadly force, as he was both not “at a place where he had a right to be”, and was engaged in “criminal conduct”. The appellate court reversed finding that the facts clearly established that Fletcher was on the sidewalk at the time of the incident, and that the trial judge had improperly imputed the geographic position of Fletcher’s brother (on the boyfriend’s lawn) to Fletcher. The appellate court quashed the order of the trial judge, finding immunity.
So, you ask – What did the appellate court, and trial judge miss?
Well, let’s start with trespass, and in this case, trespass would have to fall under F.S. 810.09:
810.09 Trespass on property other than structure or conveyance.—
(1)(a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance:
(1) As to which notice against entering or remaining is given, either by actual communication to the offender . . . or (2) If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass . . . commits the offense of trespass on property other than a structure or conveyance.
If we assume that the boyfriend ordered Fletcher and his brother off his property – and both remained on the property thereafter – yet their sister (who was also a resident of the household) also authorized them to be there to assist her – can the authorization of their sister be overcome by the boyfriend? Probably not.
First – if we do some comparisons with ordinary trespass law. We know that ordinarily a landlord cannot prevent a tenant’s invitee from coming on the property against the landlord’s wishes. LDL v. State, 569 So. 2d 1310 (Fla. 1DCA 1990). Likewise, an entry based upon a mistaken belief is not a trespass. Acord v. State, 841 So. 2d 587 (Fla. 2DCA 2003). So too, can a person be involved in a “willful” trespass of property if they believe they have a limited right to enter? Obviously, the answer should be “no”. So, no trespass there.
Next, since the Fletcher brothers were under the belief that the boyfriend was unlawfully preventing their sister from leaving the home – they would certainly have a reasonable belief that, at a minimum, the boyfriend was committing the crime of false imprisonment. F.S. 787.02, a third degree felony, and depending on the facts, possibly a kidnapping [F.S. 787.01] – which would also be a forcible felony allowing the use of deadly force to stop or prevent it. And, it stands to reason that a either a false imprisonment or kidnapping is a breach of the peace which would allow a citizen to intervene to stop it if occurring in their presence. So, once again, there would appear to be a negation of any possible trespass as a matter of law.
Of course, the next issue – “place where you have a right to be” is a bit more difficult, but renders the same result. Given a common sense definition – “place where you have a right to be” should mean anywhere your presence would, at the moment, not be technically unlawful. If the invitation of their sister is legitimate, and as long as she is a co-occupant of the home vs. a mere “guest” – they are most certainly at a “place where they have a right to be” – at least until they have succeeded in getting their sister out of the home, or she advises them she’s had a change of mind. Likewise, if they are in the process of preventing a breach of the peace in their presence – or stopping or preventing a felony or forcible felony – they have a limited privilege to be on the property. The fact that law enforcement might be a better choice in resolving the issue is irrelevant to whether their presence on the property is legitimate, or not.
And last – we get to the issue of “retreat”. Retreat is not necessary where it would be “futile”. Dorsey v. State, 74 So.3d 521 (Fla. 4DCA 2011). What is more “futile” than waiting to see if your brother is about to be shot, or not? The drawing and discharge of a firearm can be accomplished in about 1.5 seconds – the average time it takes an attacker to reach you with a knife from 21 feet. (See, “Tueller drill” entries on the internet) In the current case, since Fletcher believed the boyfriend was reaching for a firearm – instantaneous action was both reasonable and necessary. Retreat could accomplish nothing, and was therefore “futile”.
So, while the result in the Fletcher case is certainly the correct one, factually or otherwise – it appears there was a lot missing in the arguments presented to the courts. Arguments – which you should know about, as well, and could be critical in a similar case.
The boyfriend was engaging in kidnapping by not allowing the sister to leave. That invalidates the trespassing and gives them every right to shoot that POS immediately!!!
I’m not so sure it was a kidnapping – that would depend on facts not likely known at the time, and would likely be a real stretch of the imagination. But even with a “kidnapping” – the “use” of deadly force is not a given. It still must be reasonable and necessary. In this case, since their sister was at the door with no apparent injury, and had also called them — my guess is that there was no necessity to use it to prevent imminent harm to her, and most folks would say immediate use of deadly force would not have been reasonable. False imprisonment would be the much more likely crime — a felony — but not a “forcible felony”. Of course, the situation went south, as anyone who knows anything about domestic violence could have guessed — and the need to use deadly force when it looked like the boyfriend was going for a gun appeared both reasonable and necessary.
Seems like the entire affair was a great example of a time to call law enforcement rather than engaging in a course of action likely to result in a use of force situation.
I entirely agree. They were playing hero for their sister — but, they should have called law enforcement and waited for them. It was obvious to me that this was gonna end with a confrontation – and it should have been obvious to them.
Unless I missed something. You said It was trespass. Fletcher remained on the sidewalk. That would put it under City or County property which he has a right to be on. 810.01 Sidewalks are usually along the road. The walkway from the driveway to the house would be a different matter. It says sidewalk!
The trial judge said it was a trespass — by imputing the actions of Fletcher’s brother to both he and Fletcher. The appellate court said this was improper. Also discussed, was even if not a trespass – there was another issue whether it was a “place where he had a right to be”. Again — the appellate court saying they didn’t have to decide that as Fletcher was on the sidewalk.