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We are providing this pamphlet to you as a service in pursuit of that goal. Only you can provide the wisdom, restraint, and good judgment that the law demands of those who possess the ability to take another human life.

Katherine Harris
Secretary of State

A LICENSE TO CARRY A CONCEALED WEAPON IS NOT A LICENSE TO USE IT.

This pamphlet was prepared by the Department of State and the Policy Studies Clinic of the Florida State University College of Law. It attempts to answer some of the most frequently asked questions about the use of deadly force for lawful self-defense. Included are examples of real situations involving the legal consequences of the use of deadly force.

Q. What kinds of weapons are included in the new concealed weapons law?

A. The Jack Hagler Self-defense Act defines concealed weapons or firearms as follows: handguns, electronic weapons or devices, tear gas guns, knives and billies. This pamphlet emphasizes handguns, because they are one of the most commonly used weapons for self-defense.

Q. When is a handgun "concealed"?

A. The Florida Legislature defined a concealed firearm as any firearm "carried on or about a person in such a manner as to conceal it from the ordinary sight of another person". A person carrying a concealed weapon firearm without a license is guilty of a felony of the third degree. The penalty for this offense is a prison term up to five years.

Q. Are there special laws that apply to the use of handguns?

A. Yes, special laws apply anytime anyone uses deadly force, whether or not the weapon is concealed. Florida law defines deadly force as force that is likely to cause death or great bodily harm. When you carry a handgun, you possess a weapon of deadly force. The law considers even an unloaded gun to be a deadly weapon when it is pointed at someone.

Q. When can I use my handgun to protect myself?

A. Florida law justifies use of deadly force when you are:

• trying to protect yourself or another person from death or serious bodily harm;
• trying to prevent a forcible felony, such as rape, robbery, burglary or kidnapping.

Using or displaying a handgun in any other circumstances could result in your conviction for crimes such as improper exhibition of a firearm, manslaughter, or worse.

Example of the kind of attack that will not justify defending yourself with deadly force: Two neighbors got into a fight, and one of them tried to hit the other by swinging a garden hose. The neighbor who was being attacked with the hose shot the other in the chest. The court upheld his conviction for aggravated battery with a firearm, because an attack with a garden hose is not the kind of violent assault that justifies responding with deadly force.

Q. What if someone uses threatening language to me so that I am afraid for my life or safety?

A. Verbal threats are not enough to justify the use of deadly force. There must be an overt act by the person which indicates that he immediately intends to carry out the threat. The person threatened must reasonably believe that he will be killed or suffer serious bodily harm if he does not immediately take the life of his adversary.

Q. Can't I protect myself if someone starts hitting me?

A. Even if someone starts a fight with you, you must make every reasonable effort consistent with your own safety to avoid the use of deadly force, including retreating from someone attacking you. Running away from someone who has insulted or punched you may offend your instincts to uphold your honor. However, as the Second District Court of Appeal has said: "The use of deadly force against another human being (instead of running away) is not countenanced by law even if that force is in response to conduct of human beings who act like animals."

Example: At a convenience store gas pump, a man got into an argument with other customers who were drinking heavily. Three of them approached the man and beat on him while he stood hunched in the open doorway of his car. Armed with a pocket knife, he resorted to stabbing his attackers, killing one of them.

This man was convicted of manslaughter because he pulled the knife before his attack began. This showed that he anticipated the attack and chose to pull a knife and stand his ground instead of getting in his car and leaving.

The court upheld his conviction and contrasted his behavior with the behavior of a man in another case, who was relentlessly stalked by his attacker. He kept retreating from his attacker, begging him to leave him alone, and finally he fired a shot into the ground. When his attacker kept coming at him, he fired a second and fatal shot. The court said that, unlike the man at the gas station, the person being pursued had no choice but to use deadly force.

Q. What if someone is attacking me in my own home?

A. The courts have created an exception to the duty to retreat called the "castle doctrine". Under the castle doctrine, you need not retreat from your own home to avoid using deadly force against an assailant. This only applies when you are inside your home.

Example: Two men were fist-fighting in the common hallway between their apartments. One of them shot and killed the other. The Florida Supreme Court upheld the first degree murder conviction of the defendant, rejecting a claim of self-defense. The court said the defendant could have and should have retreated. The defendant in the above example claimed that because he had one foot in the doorway of his apartment, he did not have to retreat. The court rejected this argument, saying the defendant should have gone inside and shut the door. The castle doctrine applies if you are attacked in your own home by an intruder or an invited guest. The castle doctrine does not apply when the attacker and the person attacked both have the same legal right to be inside the home, such as husband and wife. Example: In a 1982 case, a woman was in her home when her husband attacked her without provocation. She shot and killed him. The Florida Supreme Court upheld her manslaughter conviction because she did not attempt to retreat from the attack before resorting to deadly force.

Q. What if I am in my place of business and someone comes in to rob me? Do I have to retreat before using deadly force?

A. The castle doctrine also applies when you are in your place of business. If you are in danger of death or great bodily harm or you are trying to prevent a forcible felony, you do not have to retreat before using deadly force in self- defense.

Q. What if I am in my car?

A. The courts have not extended the castle doctrine to cars. You have to retreat before using deadly force if you can retreat without further endangering yourself.

Q. What if I think that someone is about to pull a weapon and use it on me?

A. Possessing a handgun may lead to unnecessary killing when a handgun carrier overreacts to an uncertain situation. Be sure the other person really has a weapon before responding with deadly force. Consider these circumstances: A man making a phone call in a public booth found himself harassed by a second man. He tried to walk away and otherwise pacify the second man, but the attacker hit him in the face with a beer can causing significant injury. The attacker also threw a few kicks and punches. Left with no other choice, the man fought back to defend himself.

The attacker then retreated to the rear of a van a few feet away and made a sudden movement. Thinking the attacker was reaching for a weapon, the man took out a pistol and shot him. There was no weapon in the van.

This man was convicted of manslaughter. The court said that although he was only a "reluctant participant" in the fight, the jury was justified in finding that he overreacted to the situation and used excessive force.

Q. What if I point my handgun at someone but don't use it?

A. Never display a handgun to gain "leverage" in an argument. Threatening someone verbally while possessing a handgun, even licensed, will land you in jail for three years. Even if the gun is broken or you don't have bullets, you will receive the mandatory three-year sentence if convicted. The law does not allow any possibility of getting out of jail early.

Example: In a 1987 case, a woman refused to pay an automobile mechanic who she thought did a poor job repairing her car. They argued about it, and the mechanic removed the radiator hose from the car so she couldn't drive it away. She reached into her purse, pulled out an unloaded gun, and threatened to kill the mechanic if he touched her car again. The mechanic grabbed the gun and called the police.

The woman was convicted of aggravated assault with a firearm and sentenced to serve a mandatory three-year prison term. The fact that the gun was not loaded was irrelevant. Even though she was the mother of three dependent children and had no prior criminal record, the statute does not allow for parole. Her only recourse was to seek clemency from the Governor.

Q. When can I use deadly force in the defense of another person?

A. If you see someone who is being attacked, you can use deadly force to defend him/her if the circumstances would justify that person's use of deadly force in his/her own defense. In other words, you "stand in the shoes" of the person being attacked.

Q. What if I see a crime being committed?

A. A license to carry a concealed weapon does not make you a free-lance policeman. But, as stated earlier, deadly force is justified if you are trying to prevent the imminent commission of a forcible felony. The use of deadly force must be absolutely necessary to prevent the crime. Also, if the criminal runs away, you cannot use deadly force to stop him, because you would no longer be "preventing" a crime. If use of deadly force is not necessary, or you use deadly force after the crime has stopped, you could be convicted of manslaughter.

Q. If I get a license to carry a concealed weapon, can I carry it anywhere?

A. No. To get a license you must sign an oath that you have read and understand the Jack Hagler Self-defense Act (Section 790.06, Florida Statutes). That statute lists several places where you may not carry a concealed weapon. You should read subsection 12 for a complete list, but some examples are football, baseball, and basketball games (college or professional) and bars.

A cool head and even temper can keep handgun carriers out of trouble. You should never carry a gun into a situation where you might get angry.

Summary

1. Never display a handgun to gain "leverage" in an argument, even if it isn't loaded or you never intend to use it.

2. The amount of force that you use to defend yourself must not be excessive under the circumstances.

• Never use deadly force in self-defense unless you are afraid that if you don't, you will be killed or seriously injured;
• Verbal threats never justify your use of deadly force;
• If you think someone has a weapon and will use it unless you kill him, be sure you are right and are not overreacting to the situation.

3. Unless the castle doctrine applies, you must do everything possible to retreat before using deadly force, no matter who started the fight.

4. The law permits you to carry a concealed weapon for self- defense. Carrying a concealed weapon does not make you a free-lance policeman or a "good samaritan".

5. Never carry your concealed weapon into any place where the statute prohibits carrying it.

This is not a complete summary of all the statutes and court opinions on the use of deadly force. Because the concealed weapons statute specifies that concealed weapons are to be used for lawful self-defense, we have not attempted to summarize the body of law on lawful defense of property. The pamphlet is not intended as legal advice. Every self-defense case has its own unique set of facts, and it is unwise to try to predict how a particular case would be decided. It is clear, however, that the law protects people who keep their tempers under control and use deadly force only as a