Using Force in Defense of Personal Property

Use Defensive Force on a Pickpocket?

The main objective of this Florida Gun & Self-Defense article is to educate gun owners about gun law and self-defense law. Ignorance of the state and federal laws is not an excuse for unintentionally breaking those laws.  It is gun owner’s responsibility to learn and abide by the law, and practice safe gun handling accordingly. I am not a lawyer; if you need a legal counsel secure a lawyer in your relevant jurisdiction. The following content is my opinion and interpretation derived from twelve years of education in Florida Self-Defense Law and Gun Law.

Memorize the Four Rules for Safe Firearms Handling. Mistakes will not occur by doing so. One, treat all guns as if they are always loaded with a round in the chamber, even when the gun is empty. Two, never point the muzzle at anything you ‘don’t’ want to destroy. Three, keep your finger off the trigger until your gun sights are on the intended target. Four, always be sure of your target and what is beyond it.

In addition, when you pull the trigger, think of all bullets as having a prosecutor and a very expensive lawyer attached to them. If you are unsure of any situations regarding gun usage or handling or what is lawful or unlawful, please refrain from public conceal carrying of your firearm until you have proper training. Contact me, and I’ll point you in the right direction to give you the confidence to safely and legally operate your firearm.

Today’s firearms focus will be on “Use or Threatened Use of Force in Defense of Property, Florida SS 776.031. There are two conditions (subsections) to this statute, which I will insert [edit brackets] for identifying the five elements of lawful self-defense, and to provide definition within the statute.  

Condition One: A person is justified in using or threatening  to use force, except deadly force [Proportionality], against another when and to the extent that the person reasonably[Reasonableness] believes that such conduct is necessary to prevent or terminate[Imminence] the other’s trespass on, or other tortious[civil wrongdoing] or criminal interference[last three conditions establish Innocence] with either, real property other than a dwelling, or personal property, which is 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 [No Avoidance, Stand Your Ground (SYG)] before using or threatening to use such force.

Condition Two: A person is justified in using or threatening to use deadly force only if he or she reasonably believes[Reasonableness] that such conduct is necessary to prevent the [imminent] commission of a forcible felony (see definition below). A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat [No Avoidance Required] and has the right to stand his or her ground [SYG] if the person [you] 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 [both are standard conditions for SYG legal status]

Florida SS 776.08. Forcible Felony - “Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; [and any other felony which involves the use or threat of physical force or violence against any individual.]

A few things to note. Trespass means ‘taking possession of another’s personal property and does not mean, unlawfully entering land or dwelling.’ And in the definition of a Forcible Felony applied within the context of ‘theft of mere personal property’, Carjacking, Robbery, Aggravated Assault and Aggravated Battery, are crimes with deadly weapons, which grants the victim the privilege of using deadly force. Otherwise, if there are no deadly weapons used in the act of theft, simple non-deadly force is all that can be legally used to stop the criminal act of theft of personal property.  

Consider the following scenario, which causes both subsection-conditions to come into play.

A pickpocket bumps into you, taking your wallet, but you immediately realize he took it and grab hold of him. A physical conflict ensues, and he prevails knocking you to the ground, mounts you, and begins to rain down punches to your head; ground and pound style. You have a pistol and are losing focus and ability to protect yourself…..what do you do?

At that moment and not before, you have no choice but to shoot him until he stops his serious bodily-injury attack on you. The legal basis according to SS 776.031 is to use non-deadly force on non-deadly force until a deadly weapon or deadly action occurs due to escalation.  

Subsection Condition One, states you’re justified using non-deadly force when you reasonably believe force is necessary to prevent or terminate an imminent civil wrongdoing or trespass with your personal property.  Innocence, imminence, proportionality, reasonableness are all present during the non-deadly part of what started as a non-deadly attack. And note, there is no duty to retreat, instead you can stand your ground (SYG) and bring non-deadly force to prohibit the taking of your personal property.  

But in this scenario, the pickpocket gained the advantage over you. And began to bring deadly force that reasonably would cause grave bodily harm. The thief escalated the conflict to the second subsection, Condition Two provision of the law. Deadly force is granted to you because you reasonably [Reasonableness]  believed deadly force was occurring [Imminence] thus deadly force was a conduct necessary to prevent the imminent commission of a forcible felony upon you; namely, manslaughter or murder, or at the very least, robbery and or serious bodily injury.

In this scenario, I interpreted the act of a pickpocket as merely non-deadly force, because the act was non-violent to begin with; the thief by trickery absconds the victim’s wallet using a bump and says he is sorry and attempt to exit the scene—no deadly force is present. This is non-deadly theft and therefore non-deadly force is the only proportional legal response.

But then as you used non-deadly force to retrieve your wallet, the pickpocket escalated the fight and started a deadly force violent felony attack, which reasonably could have caused a serious bodily injury, which could result in permanent damage. Any reasonable person would justify using your pistol to break contact from this deadly force threat; standing your ground to use deadly force in lawful self-defense was the only option available.  

There is a question, which needs to be asked concerning the victim bringing the deadly weapon to bear sooner than I posed in the first scenario. What if the victim grabbed the pickpocket by the arm after he took the wallet, and showed him his pistol? And then issued this threat, “Give it back or I’ll shoot you”?  By handling, this situation in this manner the victim avoids being severely beat up. Right? Yes that is true, however in some states this would result in being prosecuted for aggravated assault with a deadly weapon.  You put the pickpocket in fear for his life by threatening death…over a few bucks and some minor inconveniences.

According to Florida law, in this particular second scenario there was no imminent deadly threat against you and in fact only minor force if any at all occurred; depending on who is judging the amount of force a pickpocket produces when he, through sleight of hand, acquires your wallet. However, I believe no one in any judicial system would say a forcible felony took place.

Therefore, no forcible felony occurred because the pickpocket did not present a deadly weapon nor did he attempt to cause grave or serious bodily harm.  Even if you said, “I thought he was going to kill me with a weapon”, this accusation would need to be backed by exculpatory evidence, vindicating your subjective deadly force belief, and would be evaluated in accordance with the objective evidentiary proof brought forward within the judicial proceedings.

Florida law allows you to use force to stop someone from pickpocketing you and even continuing force in a struggle to retrieve your wallet. But you are only allowed to use proportional force, which is non-deadly in this case. Which could probably permit enough force to search his pockets for your wallet while restraining him. But there is a risk that this action could be fodder for an aggressive prosecutor because you threatened to shoot him before attempting to retrieve your wallet from a non-forceful thief.  

Now let us consider something which has nothing to do with the actual state of lawfulness; the Greater Than Zero Risk Element. In the first scenario, you could have lost the physical altercation resulting in your death, before you were able to bring your gun to bear on the prevailing thief pounding on you. And in the second scenario, when you grabbed the thief by the arm to show him your gun, he could have surprised you with deadly force that could have killed you.

In both scenarios, you incurred upon yourself a greater than zero risk of death and prosecution. In the second scenario, you used deadly force in a non-deadly altercation with a pickpocket, therefore losing the legal case because a jury in most cases will find you guilty of aggravated assault. You go home, waiting to be found guilty at trial, spend a lot of money and go to jail. But you did keep your wallet and win the physical battle.

 And in the first scenario, if you did not take the risk and attempt to stop the thief, you go home unharmed, gun lawfully concealed on your hip, but without your wallet, and feeling aggravated and angry, being poorer and inconvenienced, but without the taking of a life on your mind.  

If the risk already discussed is not enough to convince you to suffer the loss of some money and credentials, there is also a racial component, most often combined with a rogue prosecutor that could come into play It is a fact that prosecutors enhance their careers by taking on murder and homicide cases. And they especially like cases when the victim is a minority and member of the victim class of society. You could do everything legally, but because the thief was the opposite skin color, you will be found guilty by a woke, progressive, social justice prosecutor and jury.

 And then factor this truth, even if you win the legal and physical battles, in the end it will cost at least half a million bucks in legal fees, and in most cases much more. You will walk free after a year or two waiting to go to trial, broke both financially and mentally. The legal machine is a serious punishment for the guilty and the innocent.

 Article Information Sources: Andrew Branca’s Law of Self-Defense, and Florida State Statute 776.031, 776.08

This article’s purpose is to incentivizing the reader to learn the laws required for lawful gun usage. My hope is that all conceal carry gun owners will become legally proficient and physically capable to “Aim to Win the Physical and Legal Battles” should a self-defense situation occur.” Know the Law, Learn to Shoot.”

Today’s article published online at FloridaGunSelfDefense.com

Florida Gun & Self-Defense offers firearms and self-defense training and education. Single or group classes or customized training is available. Visit FloridaGunSelfDefense.com for more information. Or call Dave Douglass at 863-381-8474 

Dave has been a firearms instructor and trainer since 2012. He is skilled in advanced tactical gun and self-defense gun operation, in accordance with Florida gun law and use-of-force self-defense law. He is not a lawyer, but has studied Florida Use-of-Force Law and Gun Law for over the last twelve years. Dave’s articles are his interpretation and opinion and do not constitute legal advice for you. If you need legal advice, secure legal counsel in your relevant jurisdiction. Dave is an adamant supporter of an original historical literal interpretation of the Second Amendment. You can contact him at davidpdouglass@hotmail.com