What is Defense of Property in Florida?

July 16, 2021 Don Pumphrey, Jr. Criminal Defense, Violent Crimes Social Share

In most cases concerning violent crime, like assault or battery, defendants will attempt to assert a form of self-defense at trial. One particular form of self-defense is an affirmative defense called “Defense of Property,” codified in Section 776.031, Florida Statutes. This section is titled “Use or threatened use of force in defense of property” and allows an individual to use, or threaten to use, non-deadly force against another individual to the extent that the individual asserting the defense reasonably believes that such non-deadly force, or threat, is needed to prevent another from trespassing on or interfering with their legally owned or possessed real or personal property. Non-deadly force used to defend one’s property constitutes an affirmative defense, meaning that it will serve as a complete bar to criminal liability for the violent or forcible act or threat charged.

What Facts Must Be Proven to Use Defense of Property?

Under Florida law, an individual is justified in their use of non-deadly force, or threat of force, against another for the defense of property provided that they can prove the following facts:

1. The alleged victim was unlawfully interfering or trespassing on the other’s real property, like their land, or their personal property;
   1. Note that real or personal property does not include one’s dwelling.
2. This real or personal property was lawfully possessed by the individual raising the affirmative defense, was in the lawful possession of their household or immediate family, or in the lawful possession of another person whose real or personal property the individual raising the defense had a legal obligation to protect; and
3. The individual raising the defense was under the reasonable belief that their threat or use of force was needed to prevent the alleged victim from engaging in wrongful or criminal behavior regarding the property.

What is Non-Deadly Force?

Non-deadly force is defined by Florida Standard Criminal Jury Instruction 3.6(g). The instruction provides that non-deadly force constitutes force not likely to cause death or great bodily harm. A bright-line example of deadly force would be discharging a firearm in the direction of another person. However, in cases other than those dealing with deadly weapons, like firearms, there is no bright-line test. If a knife is used in a manner clearly meant to cause the individual’s death or greatly injure them, like stabbing the chest-cavity, courts will find that deadly forced was used. But not every use of a knife will be considered deadly force. Likewise, not all actions that could result in death will be considered deadly force as a matter of law. For example, running someone over with a van, hitting someone with a motor vehicle, attacking someone with an ax handle, and pushing someone off of a bridge have all been found to constitute non-deadly force under their particular circumstances in Florida. Generally, what courts will consider in a deadly-force or non-deadly force determination is “the nature of the force and not the end result.”

Case Example

Hosnedl v. State

In this case, the appellant appealed his conviction of aggravated assault with a firearm and culpable negligence. He raised the question of whether the trial court erred in denying his requested jury instruction on the justifiable use of non-deadly force in defense of property. The facts in the record revealed that the appellant was hosting a Christmas party and one of his friends brought a bottle of liquor that he stole from his sister. His sister went to the appellant’s house to ask for the bottle back, but the appellant refused. After refusing multiple times, the appellant pulled his shirt up, brandished a gun, and pointed it at the friend’s sister. When she tried to walk around the appellant, he pushed her against a wall. The friend’s sister heard a “pop” and realized that she had been shot in the arm. When law enforcement arrived on scene, the appellant told them that he discharged the firearm by accident. The friend’s sister agreed that she believed it was an accident, because they had all been lifelong friends. At trial, the court refused to give the requested instruction on justifiable use of non-deadly force in defense of property, and instead gave an instruction on the justifiable use of deadly force. Unfortunately for the appellant, the discharge of a firearm has been held to be the use of deadly force as a matter of law. The court stated that firing a firearm at all, even into the air, will be seen as the use of deadly force. Therefore, the Court of Appeals held that the trial court did not err in refusing to give the non-deadly use of force instruction since the appellant knowingly and willingly brandished the firearm, whether or not the actual discharge was accidental.

Tallahassee Criminal Defense Attorney

Violent crimes like assault and battery can carry heavy penalties and bear lifelong consequences for those convicted. If you or a loved one has been charged with a violent crime, contact a Tallahassee criminal defense attorney as soon as possible to find out if an affirmative defense is applicable. Don Pumphrey and the legal team at Pumphrey Law Firm are experienced in defending charges of violent crimes and can help you or a loved one understand what options are available. Call (850) 681-7777 or send an online message today for an open and free consultation with an attorney in our legal team.

This article was written by Gabi D’Esposito

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