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.

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Matthew · May 14, 2022 at 2:22 pm

The occupancy of a building set on fire or even that it’s a building at all does not matter. The firefighters, cops and EMTs are getting called and will be subjected to risks that they otherwise would not be exposed to. Any arson risks those lives. The occupancy of a structure only adds to the level of the offense.

    Divemedic · May 14, 2022 at 3:39 pm

    That has nothing to do with using force to stop the imminent commission of arson, a forcible felony. Again, read the court opinions above.

      Matthew · May 14, 2022 at 5:51 pm

      But everything to do with what constitutes arson

        Divemedic · May 14, 2022 at 7:20 pm

        The fact that firefighters WILL enter the building has NOTHING to do with whether or not it is arson. Here is what the Florida law says:
        Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged:
        (a) Any dwelling, whether occupied or not, or its contents;
        (b) Any structure, or contents thereof, where persons are normally present, such as: jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
        (c) Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being,
        is guilty of arson in the first degree

        Note that there is no mention of whether or not firefighters will be entering the building at some point AFTER the fire has been set. All arsons that are not covered above become arson of the second degree. In either case, it is considered to be a forcible felony.

why · May 14, 2022 at 3:28 pm

My lawyer (TX) told me long ago – you may be in the legal right but it’s still going to cost min of $100K to defend. And TX has laws preventing civil liability IF that shooting was justified under the Penal Code (Chapter 9).

    Divemedic · May 14, 2022 at 7:20 pm

    That is why I recommend insurance. I use CCW Safe. Your mileage may vary.

      D · May 15, 2022 at 9:17 pm

      “I recommend insurance”

      *mumbles in socialist Washington State Insurance Commissioner noises*

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