CopyCited 21 times | Published | Supreme Court of Florida
...wever, he is justified in the use of deadly force only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or to prevent the imminent commission of a forcible felony. Similarly, section 776.031, entitled "Use of force in defense of others" provides: A person is justified in the use of force, except deadly force, against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or te...
...In contrast, appellant apparently premises his constitutional challenge not on an existing statute, but on the ramifications of a non-existing one. The repeal of section 776.021 allegedly creates a greater right to use deadly force to protect real property, other than a dwelling, pursuant to section
776.031 and to defend against the threat of great bodily harm or the imminent commission of a forcible felony pursuant to section
776.012, with no concomitant right to likewise defend a dwelling....
...It is contended that the failure of the legislature to provide for the right to use deadly force to protect the dwelling creates an "unequal, arbitrary, capricious and unreasonable classification... ." This argument, however, is based on the faulty premise that a property owner has the "right", pursuant to section
776.031, to use deadly force to protect his real property, other than his dwelling, from the imminent commission of a forcible felony, or that a person has the "right", pursuant to section
776.012, to use deadly force to protect himself or an...
...y the use of deadly force in defense of his dwelling, (see section
782.02, Florida Statutes (1979)), but not in defense of his real or personal property. We disagree with appellant's argument for two reasons. First, appellant overlooks the fact that section
776.031, although expressly excluding the dwelling in reference to the protection of real property, can be read to include the dwelling in reference to the protection of personal property. It stands to reason that most, if not all, personal property would be found within the dwelling. Therefore, in light of section
782.02 and the castle doctrine, and our construction of section
776.031, appellant's argument that the owner of a dwelling has been arbitrarily and unreasonably denied equal protection is wholly without merit....
CopyCited 5 times | Published | Florida 4th District Court of Appeal | 2012 WL 3964751, 2012 Fla. App. LEXIS 15315
...Use of Non-Deadly Force in Defense of Property Instruction Later during the charge conference, the trial court considered the defense of property portion of the standard instruction on the justifiable use of non-deadly force in defense of property. The standard instruction is based upon section 776.031, Florida Statutes (2010). 1 The trial court decided it would give the instruction, but modified the standard instruction by replacing “land” with “real property other than a dwelling,” tracking the language of section 776.031....
...he use of non-deadly force was not legally permissible to defend against a trespasser within the cur-tilage of a dwelling. We disagree with this argument. Garrido sought the use of a standard jury instruction based on a statutory defense provided by section 776.031....
...e person he was resisting was an officer. The court further held that the standard jury instruction for the crime was inadequate because it tracked the ambiguous language of the statute. Id. at 1118 . In the instant case, Garrido does not argue that section 776.031 is ambiguous or confusing. Instead, Garrido argues that the trial court was confused as to whether section 776.031 is applicable when one is standing in the curtilage of a home....
...Conclusion Since the trial court committed fundamental error in reading the standard jury instruction on justifiable use of non-deadly force in defense of self, we reverse and remand for a new trial. Reversed and remanded for a new trial. WARNER and STEVENSON, JJ„ concur. . Section 776.031, Florida Statutes, provides: A person is justified in the use of force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to prevent or terminate the other...
...However, the person is justified in the use of deadly force only if he or she reasonably believes that such force is necessary to prevent the imminent commission of a forcible felony. A person does not have a duty to retreat if the person is in a place where he or she has a right to be. § 776.031, Fla....
CopyPublished | Florida 4th District Court of Appeal
...5
force in support of her immunity claim, nor did the State present any proof
that Paese ever used or threatened to use deadly force.
Thus, the trial court evaluated Paese’s actions based on an inapplicable
subsection of the SYG law—776.031(2)—rather than the applicable
subsection—776.031(1)—when it concluded that the State proved by clear
and convincing evidence that she was not entitled to immunity from
prosecution. Compare § 776.031(1), Fla. Stat. (2020), with § 776.031(2),
Fla....
... The Justifiable Use of Non-Deadly Force
Florida grants a right to “[i]mmun[ity] from criminal prosecution and
civil action for the [justifiable] use or threatened use of such force”
permitted by sections
776.012,
776.013, or
776.031, Florida Statutes
(2020), except in certain circumstances not applicable in this case.
§
776.032(1), Fla....
...2d
DCA 2019) (“The trial court must determine whether, based on the
circumstances as they appeared to the defendant, a reasonable and
prudent person situated in the same circumstances and knowing what the
defendant knew would have used the same force as did the defendant.”).
Section 776.031(1) provides:
A person is justified in using or threatening to use force, except
deadly force, against another when and to the extent that the
person reasonably believes that such conduct is necessary to
preven...
...immediate family or household or of a person whose property
he or she has a legal duty to protect. A person who uses or
threatens to use force in accordance with this subsection does
not have a duty to retreat before using or threatening to use
such force.
§ 776.031(1), Fla. Stat. (2020) (emphasis added).
This court recently held that section 776.031(1)’s plain language
authorizes the use of non-deadly force to prevent or terminate the tortious
or criminal interference with one’s personal property....
...In other words, Florida recognizes a cause of action for
the tortious invasion of privacy against a tortfeasor who improperly
accesses a private home and photographs the possessions inside the
home, if its owner, whose privacy was violated, is otherwise identified. Id.
Because section 776.031(1) permits the proportionate use of non-
deadly force “to prevent or terminate” the “tortious or criminal interference”
with “personal property,” Paese was justified in using such force to simply
prevent the tortious conduct even before any publication of the identifying
pictures. § 776.031(1), Fla. Stat. (2020) (emphasis added).
11
Thus, we conclude that, pursuant to section 776.031(1), it was
objectively reasonable for Paese to perceive the four men’s unauthorized
use of a master key fob to override her exclusive access and intrude upon
her private home while taking unwelcomed photographs of its interior,
incl...
...with the proportionate use of non-deadly force—i.e., by throwing the roll
of duct tape towards the open elevator and swatting the cell phone out of
the alleged victim’s hand. See Burns,
361 So. 3d at 377-78 n.5 (“Notably,
the plain language of section
776.031(1) would not have prohibited Burns
from using non-deadly force before the tree-cutting crew became
trespassers as the statute allows the use of non-deadly force when a
person ‘reasonably believes that such conduct is necessary to prevent or
terminate the other’s trespass on, or other tortious or criminal interference
with, either real property other than a dwelling or personal property.’”
(quoting §
776.031(1), Fla. Stat. (2020))).
Moreover, because Paese was justified in using non-deadly force to
protect her personal property as alternatively permitted by section
776.031(1), it is immaterial whether the men had trespassed upon the
non-dwelling portion of her unit at the time of the encounter....
...l harm”—to argue that our
interpretation represents a “sea change” from “600 years of the common
law” despite its absence as a prerequisite for the justifiable use of non-
deadly force in either the SYG statute we are interpreting here—section
776.031(1)—or in the common law privilege to defend one’s property or
chattels.
5 Paese also argued that she was justified in using non-deadly force pursuant to
section 776.031(1) “to prevent or terminate” the “trespass” upon the private entry
to her foyer which she considers her curtilage or an exclusive interest in “real
property other than a dwelling.” We do not reach this issue in view of the...
...m the
private entry to her home, that she used a proportionate amount of force
to reasonably prevent or terminate their unprivileged actions.
The dissent argues that our Legislature cannot change the common
law—as the dissent asserts it did in section 776.031(1) by establishing
immunity from prosecution, eliminating any duty to retreat, and clarifying
the circumstances upon which the immunity could be invoked in defense
14
of personal property—without “expressly” stating so....
...155, 175 (2005)
(“Although it appeared the judiciary had finally settled Florida’s [common
law] duty to retreat and ‘castle doctrine’ laws, on October 1, 2005, its
decisions became obsolete, because on that day, Florida’s new ‘Stand Your
Ground’ law went into effect.”).
Moreover, section 776.031(1) does not include any requirement of a
threat of “physical harm” before a person is justified in using or
threatening to use non-deadly force in defense of personal property. In
fact, section 776.031(1) does not mention any threat of “physical harm.”
Instead, section 776.031(1) expressly provides that a person is justified in
using non-deadly force “when and to the extent that the person reasonably
believes that such conduct is necessary to prevent or terminate” another’s
“tortious or criminal interference with . . . personal property[.]” § 776.031(1),
Fla....
...“imminent use of unlawful force”—which by implication may cause
“physical harm”—before the defensive use or threat of non-deadly force is
justified. See generally §§
776.012(1),
776.013(1)(a), Fla. Stat. (2020).
Unlike sections
776.012(1) and
776.013(1)(a), section
776.031(1) does
not contain any language requiring the “imminent use of unlawful force”
by another as a prerequisite to the justifiable use or threatened use of non-
15
deadly force “to prevent or terminate” the “tortious or criminal interference
with” a person’s personal property. Compare §
776.012(1), Fla. Stat.
(2020), and §
776.013(1)(a), Fla. Stat. (2020), with §
776.031(1), Fla....
...for to do otherwise would constitute an abrogation of legislative power.”
Nicoll v. Baker,
668 So. 2d 989, 990-91 (Fla. 1996). Nevertheless, we note
that even if we were to resort to the canons of statutory construction, they
too would support our interpretation of section
776.031(1)....
...omitted; the negative-implication canon, in which the listing of some
things implies the deliberate exclusion of others; and the surplusage
canon, in which every word is given effect and none is deemed
meaningless).
Because the Legislature chose to enact section 776.031(1)—justifying a
person’s use of non-deadly force “to prevent or terminate” the “tortious or
criminal interference with” a person’s personal property—without any
prerequisite of either a threat of “physical harm” or “unlawful force”—we
are required to give section 776.031(1) its plain and ordinary meaning....
...and intrude upon her private home while taking unwelcomed pictures of
its interior, including the personal property inside her home.
16
We emphasize that the force used by Paese was proportionate to her
right, pursuant to section 776.031(1), to “prevent or terminate” the
“tortious or criminal interference” with her “personal property.” Had she
employed force that was not reasonably tailored to simply prevent or
terminate the tortious conduct, the dispropor...
...Petition for writ of prohibition granted; case remanded with instructions.
FORST, J., concurs.
FORST, J., concurs specially with opinion.
GROSS, J., dissents with opinion.
FORST, J., concurring specially.
I concur in the majority opinion’s application of section 776.031(1),
Florida Statutes (2020), to the facts of this case.
Petitioner Paese told the property manager not to come up to her unit.
The property manager did not respond that he was coming up nonetheless,
nor did he explain the exigency of, or the authority for, his visit....
...expands the reach of Stand Your Ground statutes to situations involving
no threat of physical harm to persons and no “trespass, or other tortious
or criminal interference with, either real property other than a dwelling or
personal property[.]” § 776.031(1), Fla....
...he master key fob to
take the elevator to the defendant’s floor, or to hold the elevator door open
while the men remained in the elevator.
Fourth, the majority essentially ignores that the right to prevent
interference with real property under section 776.031(1) is limited to real
property “other than a dwelling.”
Lastly, contrary to the majority’s conclusion, the victim’s conduct of
photographing the interior of the defendant’s home from the common
element elevator was not a...
...(2020).
7 Section
776.012(2) is also inapplicable because the defendant did not use
deadly force, nor was she facing the prospect of “imminent death or great bodily
harm” or the “imminent commission of a forcible felony.”
21
This leaves section
776.031(1), upon which the majority relies....
...reasonably believes that such conduct is necessary to prevent
or terminate the other’s trespass on, or other tortious or
criminal interference with, either real property other than a
dwelling or personal property, lawfully in . . . her possession .
...
§ 776.031(1), Fla....
...elevator was “real property other than a dwelling,” lawfully in her possession.
22
“trespass on, or other tortious or criminal interference with, either real
property other than a dwelling or personal property.” § 776.031(1), Fla.
Stat....
...he deadly force statute
in its order, this mere scrivener’s error in the order is not grounds for
granting extraordinary writ relief. The court understood that it was
addressing the use of non-deadly force.
The Majority Opinion Expands Section 776.031(1)
Beyond its Common Law Origins
In a result-oriented exercise of jurisprudence, the majority opinion
holds that the defendant was reasonably using non-deadly force to prevent
or terminate the tortious interference with her property....
...of actual physical harm to persons and actual physical interference with
property. The statutes authorize the use of force in defense of a person or
home to resist the “imminent use of unlawful force.” §§
776.012(1),
776.013(1)(a), Fla. Stat. (2020).
Section
776.031, the statute upon which the majority opinion relies,
authorizes the use of force that is “necessary to prevent or terminate the
other’s trespass on, or other tortious or criminal interference with, either
real property other than a dwelling or personal property[.]” §
776.031(1),
Fla....
...t. Angelo v. Healthcare and Ret. Corp.
of Am.,
824 So. 2d 997, 999 (Fla. 4th DCA 2002), as authority for this proposition.
But nowhere in St. Angelo did we say that the presumption of no change in the
24
Section
776.031 is consistent with the common law notions that force
may be employed to resist the threat of force—actual physical intrusion on
or physical interference with property, such as that occurring in trespass
or conversion....
...force
against the victim—not the property manager—was justified because she
reasonably believed that such conduct was necessary to prevent or terminate the
victim’s “trespass, or other tortious or criminal interference with” her property. §
776.031(1), Fla....
...of force was necessary to prevent or terminate the victim’s commission of
the tort of invasion of privacy, which is the tort the majority hangs its hat
on. The petition uses the word “tortious” only twice, and one of those
instances occurs in a block quote of section 776.031(1).
To be sure, the defendant’s petition contains a single sentence vaguely
alleging that the State failed to prove by clear and convincing evidence that
she “did not reasonably believe [her] conduct was necessary to prevent...
