Defending Your Property From Halloween Mischief

Defending your property on Halloween is not different than any other night. But since Halloween is right around the corner and many of you are carving pumpkins and breaking out the spooky decorations we believe it is time to remind you about your rights when defending your property.  Halloween is always a fun time of the year but not everyone wearing a costume is looking for a sweet treat.  Instead, some are looking to serve up tricks by rolling yards, smashing pumpkins, and destroying spooky decorations.  What does the law allow you to do if you fall victim to Halloween tricks?

What level of force can you use when defending your property?

Florida Statute 776.031(1) allows a person to use or threaten to use non-deadly force to expel a trespasser or to protect personal property.  Non-deadly force is force that is not likely to cause death or great bodily harm.  Examples of non-deadly force include, but are not limited to a push, tackle, grab, punch or slap.  Many people are surprised to learn that the display of a firearm without discharging it also constitutes non-deadly force. Stewart v. State, 672 So.2d 865 (Fla. 2^nd DCA 1996). However,  keep in mind that displaying a firearm can cause a situation to escalate, especially when the people who saw the display tell law enforcement that you pointed your gun at them, and threated to shoot.  This often result in charges being filed for aggravated assault with a deadly weapon (Florida Statute 784.021).

Can you use deadly force while defending your property?

Subsection 2 of Florida Statute 776.031, authorizes the use of deadly force to protect property, but only if the deadly force is used to prevent the commission of a forcible felony.  For example, if while you were outside trying to bring on of your decorations with you into your home, and a trickster brandished a knife to forcefully take your decoration from you, they would be committing a forcible felony.  If that occurred, the trickster would be committing the forcible felony of robbery.  Of course, in that example you really are no longer protecting your property, i.e. the decoration, you are now protecting your life.

If you catch the trickster in the process of destroying your property, the best advice is to call 911 and report the vandalism.  Yes, the law does allow you to go outside to physically remove the person or persons from your property and to protect your belongings, but you always have to be cautious when physically engaging a person or group of people.  You can only use non-deadly force in this situation.  That means you cannot open your front door and discharge a firearm to scare the tricksters away.  Why? Because the courts have ruled as a matter of law that the discharge of a firearm in a self-defense situation constitutes deadly force, even if accidentally discharged as you are pulling it from the holster.  Carter v. State, 115 So.2d 1031 (Fla. 4^th DCA 2013).

What if you go outside to confront the tricksters and a physical altercation ensues while defending your property?  Are you still only able to use non-deadly force to protect yourself?  Maybe not.  If during the physical altercation a time comes that a reasonable person, in the same circumstances as you are in, would believe deadly force is necessary to prevent imminent death or great bodily harm to themselves or others, then deadly force would be warranted. Florida Statute 776.012(2).  For example, if you confront the trickster and one or more of them pick up a weapon and charge you.   Remember, since you are in a place where you have a right to be and you are not engaged in criminal activity, you have no duty to retreat before using deadly force.  Florida Statute 776.012(2). 

Do you become the initial aggressor when defending your property?

Does going out and confronting the trickster make you “the initial aggressor?” As you may already be aware, Florida law places additional requirement on an “initial aggressor” before deadly force can be used.  Florida Statute 776.041, requires the initial aggressor to exhaust every reasonable means to escape the danger, and in good faith withdraw from the physical altercation. This is done by expressing his or her desire to withdraw and terminate the encounter with the other person, but if the other person continues or resumes the attack, then deadly force can be used.  Since Florida Statute 776.031 authorizes a person to use non-deadly force to protect his or her property or expel a trespasser, you would not be considered the initial aggressor if you decided to go outside to confront the trickster on your property.  So, if the circumstances rise to the level that deadly force would be justified, you will not have to worry about retreating or any of the additional requirement of Florida Statute 776.041, prior to using deadly force. 

I hope this Halloween is full of treats and no tricks.  Please keep in mind that although the law allows you to protect your property, remember it is just property and can be replaced. 

David S. Katz

About Expert Firearm Attorney David Katz. David Katz is an Expert Firearm Attorney and has been practicing law for over 14 years. He began his career as a prosecutor in Seminole County, Florida.   There, he gained invaluable experience analyzing how...
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