BONITA SPRINGS, Fla. — A few months ago, a man purchased property behind Pamela Smith’s house in Bonita Springs. Little did she know it would cause problems for her family.
“He’s constantly trespassing. It’s to the point where I’m terrified of him. I fear for my life,” Smith said.
Having the right to protect property from trespassers is guaranteed in the Florida Constitution.
Pamela and Clarence Smith, a couple in Bonita Springs, encountered their neighbor several times using their property to get to his own. When asking him to stop didn’t work, the Smith’s called Lee County Sheriff’s Office to get this problem resolved.
“And every time we’ve called the cops — they’ve never trespassed him,” Pamela said.
Walter Zalisko, the investigator on the case and president of Global Investigative Group, says the man was not legally accessing his property.
“He’s under some assumption that he has the right to walk on what he says is an F-P-L easement — well, it’s an F-P-L easement, not a public easement. He has no right to walk on that,” Zalisko said.
Last fall, Clarence saw the man walk on his property and approached him with an unloaded handgun, asking him to leave his property.
“My husband had to protect our property and our home — and me, I was terrified of this guy,” Pamela said.
LCSO was eventually called and when deputies came to the scene, they arrested Clarence for aggravated assault with a deadly weapon, even though he was on his own property.
“The LCSO could not understand that even though I was outside my fence, that I was still on my property,” said Clarence.
According to a Florida Statute, a person has the right to use or threaten to use force, except deadly force, against another person in order to prevent them from trespassing.
“They were trying to protect their property from a trespass. Which is very different than believing someone is coming to harm them,” said Steven Martin, an attorney at Martin Law Firm, P.L.
Martin says this distinction is important when confronting a trespasser, even if the gun is unloaded.
“You can use force to remove a trespasser, but you can’t use a gun to make a move,” Martin said.
Stand Your Ground law allows a person to use deadly force if “he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself”.
However, the law may not apply to the Smith’s case.
“Certainly I don’t think stand your ground would be to the benefit of anyone trying to use it if they are laying in wait for a reason to use their weapon or a reason to defend themselves,” said Daniel Garza, a trial attorney at Wilbur Smith Attorneys & Law Firm.
The Florida State Attorney is still deciding on whether or not they want to prosecute Clarence Smith.
LCSO declined an interview for this story.
