License to Kill?

This is a partial transcript of "The Big Story With John Gibson," April 6, 2005, that has been edited for clarity.

JOHN GIBSON, HOST: When it comes to self-defense, folks in Florida (search) may soon have a license to kill. A new bill shoots down the legal duty to run away, giving citizens the right to use deadly force if they feel their lives are threatened at home.

Governor Jeb Bush (search) says he will sign the bill. So how does this stack up?

FOX News senior judicial analyst, Judge Andrew Napolitano, rules on the new law. So this is at home?


GIBSON: In or at?

NAPOLITANO: In the home, in a dwelling. And they define a dwelling in a broad way. It could be your garage. It could be your unscreened front porch. It could be your bedroom; it could be your basement. It would not be your driveway or your back yard or the street in front of the house.

The law in Florida for many years allowed this. But it allowed it by judicial opinion. Now it is the written law of the land. So the judges can't change it.

GIBSON: So what does it allow a person to do that, in theory, anyway, under the law couldn't do before?

NAPOLITANO: OK. I'll give you an example.

In the state of New Jersey, if you confront an intruder in your house and you are fearful for your life because of the way the intruder is behaving, you see a gun, you see a weapon, and you're not sure what he has, you must first ask the intruder to leave. You must then run to safety if there is a place to which to run.

GIBSON: Like go to the bathroom?

NAPOLITANO: Right. And only then, if he doesn't leave when you ask him to, and if there's no place to run to that is safe, may you use a weapon.

In Florida, there's no need to warn the intruder and there's no obligation to flee. You can just shoot him or use whatever means you have to dispatch him in your house.

GIBSON: OK. Now, as practical matter, since you were a judge in New Jersey, do juries ever convict anybody in New Jersey of having shot somebody who intruded in their house if they didn't say, "You there, sir, please leave," and "Excuse me, I have to run back to my bedroom now?"

NAPOLITANO: Usually they convict them of a lower crime, one that doesn't require jail time. But they usually do convict them of something.

New Jersey, unfortunately, has this strong tradition of you not only have to retreat, you've got to shout first. Now, New Jersey is the most extreme.

In Texas, for example, what they're doing in Florida today has been the law of the land for 150 years. And it would be nothing new in Texas, and, similarly, with some other eastern states. Mainly, east of the Mississippi, duty to retreat. West of the Mississippi, fire at will.

GIBSON: The duty to retreat is on the intruder, not on the homeowner.

NAPOLITANO: No, the duty to retreat is on the homeowner.

GIBSON: No, but I mean in the West?

NAPOLITANO: Oh, in the West, you're right.

GIBSON: You've got to get out of the house or you're going to get shot.

NAPOLITANO: Yes, absolutely. Florida is now becoming like those western states.

GIBSON: All right. Now, we just heard some legislators arguing that this means people are going to be dueling and more people are going to get shot.

NAPOLITANO: Well, the theory of the Florida law — and it's backed up by statistics — is there will be less crime where the criminal fears the homeowner — because the homeowner is more likely to be there than the police at the time of the break-in.

The idea of a duel conjured up people shooting each other in the streets. You very pointedly said when we introduced this segment that it only applies in a residential dwelling. Not an office building. Only your house, and the pieces of your house are pertinent to it.

GIBSON: Your home is your castle and you get to defend it.

NAPOLITANO: Indeed, in Florida you do.

GIBSON: All right. Judge Andrew Napolitano, thank you.

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