July 2020

July 2020

The First Amendment to the United States Constitution bestows on us “…the right of the people to peaceably assemble…” in order to express our opinions and to give meaning to freedom of speech.  Unfortunately, some people have recently turned peaceable assemblies into violent riots.  During these troubling times, we have received emails and calls regarding what the law allows an individual to do when rioters surround their car of if protesters surround them while in their car.  There is no simple answer to this question.  The actions one may take to defend themselves or their loved ones will depend on the actions taken by those around the vehicle.

This article is to help provide some insight on what one should do if they find themselves in this situation.  Please know that the slightest change in the facts surrounding the situation can drastically change what would be justified as self-defense.  Ultimately, it might come down to a judge or jury deciding if the facts surrounding your use of force were reasonable and necessary, therefore justified. 

Before exploring some likely scenarios, it is crucial to know when Florida law allows an individual to use or threaten to use force in self-defense and defense of property.  Florida’s self-defense law is found in Section 776.012, Florida Statutes and Florida’s law on defense of property is found in Section 776.031.    

Florida Statute §776.012 Use or threatened use of force in defense of person.

(1) 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 defend himself or herself or another against the other’s imminent use of unlawful force. 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.

(2) A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

Florida Statute §776.031 Use or threatened use of force in defense of property.

(1) 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 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 his or her possession or in the possession of another who is a member of his or her 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.

(2) A person is justified in using or threatening to use deadly force only if he or she reasonably believes that such conduct is necessary to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

Please see our blog posts on the difference between force and deadly force by clicking here.

Scenario 1: Rioters Surround Your Car – no violence

The first scenario occurs when rioters surround your vehicle or line up in the middle of the street preventing you from moving forward.  In this scenario, the rioters are not touching your vehicle or advancing aggressively toward you.  Based on these set of facts, it would be unlikely a jury would find your use of deadly force was reasonable or necessary because there is no imminent threat of unlawful force, death, or great bodily harm.

It could be argued that the protestors are committing false imprisonment which is a felony in Florida.  False imprisonment means “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” Florida Statute § 787.02. Is false imprisonment a Forcible felony?   Forcible felonies are defined in Florida Statute § 776.08.  False imprisonment is not one of the listed forcible felonies, but under § 776.08, there is a catch all phrase that states “…any other felony which involves the use or threat of physical force or violence against an individual.” Based on the facts provided that the rioters are just standing in front of your car or surrounding your vehicle, our example would not likely be considered a forcible felony because there is no physical force or violence against you. 

What about using non-deadly force instead of deadly force to stop the false imprisonment?  Most situation that would allow you to use non-deadly force would require you to get out of your car.  You could not use the car as a weapon because then your use of force would more than likely be considered deadly force (likely to cause death or great bodily harm) and your vehicle considered a deadly weapon.  The only non-deadly force that one could reasonably use from inside the car would be the display of a firearm.  The mere displaying of a firearm without discharging it, has been determined as a matter of law to be the use of non-deadly force.  Stewart v. State, 672 So.2d 865 (Fla. 2^nd DCA 1996).

However, there are two problems with doing this.  First, it would probably cause the situation to escalate instead of calming it.  Second, there will likely be a lot of demonstrators telling law enforcement that you assaulted them with a gun without any justification.  Unfortunately, the side with the most witnesses often is the one law enforcement believes.  The safest thing to do in this scenario, is to either find an alternate route or call 911 and wait for law enforcement to assist. 

One very important thing to remember is that you could not legally fire a warning shot, to make the demonstrators move.  Florida courts have determined the discharging of a firearm, whether intentional or not, is the use of deadly force.  Carter v. State, 115 So.2d 1031 (Fla. 4^th DCA 2013).

Scenario 2: Rioters Surround & Bang on Your Car.

In this scenario the rioters are more aggressive. This slight change of fact could determine whether or not your use of force is justified.  If the rioters are just banging on your car with their hands, you would be justified in using non-deadly force under both § 776.012(1) and § 776.031.

Under § 776.012(1), the rioters are committing a battery because they are battering the vehicle you are in.  The only thing that is keeping them from hitting you is the vehicle acting as a barrier.  Additionally, you are not required to wait to be physically touched if it is reasonable to believe that a battery is imminent.  Also non-deadly force would be justified under § 776.031, since the rioters are causing or trying to cause damage to your property, the car.  As mentioned above, probably the only option of using non-deadly force from inside the car is to display a firearm. 

The facts of this scenario also make the argument that deadly force was reasonable and necessary much stronger. Under these set of facts, it is more likely the false imprisonment would be considered a forcible felony. That is because the rioters are now using physical force and violence to imprison you inside your car.  Remember that Florida law allows the use of deadly force to prevent the imminent commission of a Forcible felony. 

Scenario 3: Rioters Surround and Attempt To Get Into Your Car.

If it was reasonable to believe the rioters were trying to get into your vehicle or remove you from it, your use of force would be to prevent the imminent commission of the forcible felony of either a burglary or a car-jacking. Both of these crimes are specifically listed in Florida Statute § 776.08. If the rioters are armed with bats, bricks or homemade firebombs, the use of deadly force becomes even more reasonable.

The chances of your use of deadly force being justified if the rioters are trying to get inside your vehicle are enhanced thanks to the presumptions of the “Castle Doctrine.”  Under Florida’s “Castle Doctrine”, which is found in Section 776.013, Florida Statute, the law would presume you held a reasonable fear of imminent death or great bodily harm when the rioters forcefully and unlawfully entered or attempted to enter your occupied vehicle. Florida Statute § 776.013(2).  It will also be presumed that the rioters who had forcefully and unlawfully entered or were attempting to enter your car were doing so with the intent to commit an unlawful act involving force or violence.  Florida Statute § 776.013(4).

Before ever using or threatening to use any kind of defensive force, always remember that your actions will be judged based on the reasonable person standard.  In other words, would a reasonable person in the same circumstances have believed that the level of force used was necessary at the time the defensive force was used. 

In conclusion, there is no easy answer to what level of force you would be justified in using if rioters surround a car you are in.  The actions of those protesters would go a long way in determining whether you could use no force, non-deadly force, or deadly force.  The slightest change in the facts could change the lawful options available to you.  If you find yourself in a situation where you were forced to act to save yourself, your family, or another, please speak to an attorney prior to giving a statement to the police.