On last week’s post about the use of force to prevent arson, there were some commenters who pointed out that all arson doesn’t justify the use of deadly force. That is correct, especially in one person’s example of someone burning your garden shed. Burning a garden shed or a backyard doghouse usually wouldn’t be a forcible felony. (Although it could be) Still, it is more complicated than that. Of course it is, because any time lawyers get involved, it always is.
Even armed robbery is not always a justification for the use of deadly force. For example, if the other side’s attorney can prove that, for some reason, you knew that the assailant’s firearm wasn’t functional, then you can’t use deadly force. Let’s say that you knew that the pistol in the robber’s hand was either unloaded or that the firing pin was missing. Even if some critter is pointing a gun at you, you can’t just blow his ass away, no matter how much you want to.
Some argued that, if a structure isn’t occupied, arson isn’t a forcible felony. The courts in Florida don’t see it that way. In fact, this particular legal argument has been made numerous times, and Florida courts have struck it down each and every time. See Woody v. State, 847 So.2d 566 (Fla. 3d DCA 2003); Perez v. State, 840 So.2d 1125 (Fla. 3d DCA 2003); Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002), rehearing denied with opinion, 837 So.2d 1177 (Fla. 3d DCA), review denied, No. SC03-444, 848 So,2d 1155 (Fla. 2003); Diaz v. State, 837 So.2d 436 (Fla. 3d DCA 2002); Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002).
Early laws in Florida (before 1979) stated that setting a building on fire was only arson if the building was occupied. That definition was changed in 1979 because many people were finding and using loopholes.
So my thought here, and I can’t find any case law to the contrary, is that an occupiable building (like a church, a house, a business, etc) is presumed to be occupied and this makes it arson. Going back to the “reasonable” belief standard that all gun owners are familiar with means that if you KNOW that no one is inside the building, shooting someone to prevent the arson would be seen as not reasonable.
However, seeing someone beginning to toss a “destructive device” at an occupiable structure would, absent other mitigating factors, be legal, IMO.