Fixing a glitch in the self defense law.
Florida’s misnamed “Warning Shot” bill, Senate Bill 448, has advanced another step, with a 5-to-0 vote in favor by the State Senate Criminal Justice Committee, chaired by State Senator Greg Evers (R, pictured above).
The bill still requires approval by the Senate Judiciary and Rules Committees before it will be put to a vote before the entire State Senate. (You can read the full-text of SB 448 here, and review the Senate analysis of the bill here.)
As previously reported here at Legal Insurrection, the Florida House version of the same bill, labelled there House Bill 89, was approved by that chamber’s Criminal Justice Subcommittee on a 12-to-1 vote back in November. (You can read the full-text of HB 89 here, and review the House analysis of the bill here.)
In fact, neither SB 448 nor HB 89 have any mention of “warning shots” whatever. They are, in fact, really merely efforts to fix an apparent glitch in Florida’s current self-defense law framework (hence their overwhelming support).
A close reading of Florida’s various self-defense statutes — including 776.012 Defense of Persons, 776.013 Home Protection, and 776.031 Defense of Others, and 776.032 Immunity — can result in the interpretation that they address only the actual use of force against another, and not the mere threat of the use of such force.
This has resulted in cases where a person who has merely threatened the use of force — e.g, displaying a defensive firearm to an attacker — finds himself with less legal justification than if he had taken the next step of actually using that force–e.g., shooting their attacker. The seeming result would be to encourage the use of deadly force, even in circumstances where the use of such force could have been avoided.
Should the defender find themselves guilty because of this reduced legal justification, and their use of force involved a gun, they then find themselves subject to the severe consequences of Florida’s mandatory sentencing scheme under the State’s “10-20-Life” law (FS 775.087). This statute mandates a 10-year minimum sentence if convicted of a violent felony while merely in possession of a gun (3 year minimum, in the case of aggravated assault); a 20-year minimum sentence if convicted of a violent felony in the course of which you fired a gun (regardless of whether anyone was hit by the shot); and a 25-to-Life minimum sentence if death or grave bodily injury resulted from the shot fired.
There have now been numerous Florida cases in which a well-intentioned defender fired a “warning shot” in self-defense, found himself charged with aggravated assault, convicted, and sentenced to a mandatory 20-year-sentence. In many of these cases, there was clearly no intent to cause anyone harm, and the defender sincerely believed the firing of the “warning shot” was the best means of reducing the risk of violence to all involved. It seems bizarre in such cases that the defender could have potentially avoided legal liability entirely if they had instead elected to shoot and kill their attacker rather than fire a “warning shot.”
The parallel SB 448/HB 89 bills seek to correct this situation by stepping through each of Florida’s self-defense statutes and replacing each use of “use of force” with the phrase “use or threatened use of force”.
Note that this would cover ANY threatened use of force, ranging from mere verbal threats to — in theory — warning shots, although neither bill makes any effort to define “threatened force” nor references “warning shots” in particular. In particular, these bills DO NOT in any way “authorize” the firing of warning shots.
Any such threatened force would have to qualify as justifiable self-defense in exactly the same manner that the actual use of force would have to be justified. That is, was that threatened use of force the act of a reasonable and prudent person’s perception, in those circumstances, of an imminent threat of death or grave bodily harm (in the case of a threat of deadly defensive force; mere bodily harm in the case of a threat of non-deadly defensive force). Thus if the person who threatened the force was, for example, the aggressor in the conflict, their conduct would not qualify as self-defense on its face, and neither their threatened nor actual use of force could be lawfully justified.
As a result, in the case of the most commonly referenced “warning shot” case in Florida today, that of Marissa Alexander, she would not have benefited from this “warning shot” bill even had it been on the books when she fired her handgun at her husband and his two minor children. Because she had achieved a place of safety from a non-deadly conflict, but then chose to retrieve a firearm and return to the fight, she effectively became the aggressor in the subsequent deadly-force conflict. As the aggressor, she cannot reasonably justify her firing the gun as self-defense, and if it was not self-defense the “warning shot” bill would have no application.
Most people possessing even modest tactical training, including myself, will caution that the firing of warning shots under almost all conditions is fraught with practical dangers — that bullet will keep going until it hits something (someone?) capable of stopping its travel, and you are solely responsible for that outcome. This raises both moral and legal liabilities.
The firing of warning shots can also profoundly undermine any effort to claim you acted in reasonable self-defense. If you really believed you were in imminent danger of death from your attacker, why didn’t you simply shoot your attacker? The very act of instead “merely” firing a warning shot can be used to infer that you did not, in fact, believe the threat was one of imminent death or grave bodily harm.
(There is video available of this hearing, and much of the commentary is excellent. It will take some time to process, however, and rather than delay this post I’ll provide notification later of when the video has been uploaded.)
Keep your eyes right here at Legal Insurrection for ongoing news on Florida’s so-called “warning shot” bill as it continues to progress through the legislature.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.