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Florida “Warning Shot” Bill Advances

Florida “Warning Shot” Bill Advances

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.)

VIDEO: On “Warning Shot” Bill, Eric Friday of Florida Carry, Shines Again

VIDEO: On “Warning Shot” Bill, Addresses Verbal Defensive Threats, Marissa Alexander Scenarios

VIDEO: On “Warning Shot” Bill, Examples of “10-20-Life” Applied to Self-Defense Cases

VIDEO: On “Warning Shot” Bill, State Prosecutor Fences with Senate Bill Sponsor

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, @LawSelfDefense


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.

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Comments

A great illustration of how hard it is to draft a good statute.

Which is a good illustration of just how bad 2000+ pages of ObamaDoggle really is.

It is not uncommon in Florida for elderly people to lawfully carry concealed weapons. Display of the weapon very often will be enough to cause a group of punks to reevaluate their targeting. These incidents are rarely reported to police because of the current state of law.

Would these bills change this legal landscape Andrew?

    To my thinking, it’s insane the way some Florida courts have differentiated between the “use” of force and the “mere threat” of force, such that actual use can be justified as self-defense, but the threat cannot. I’ve not run across that bizarre construct anywhere else in the country.

    (Many jurisdictions DO, of course, differentiate between “use” and “threat” for other purposes of self-defense law, but not in the same manner as Florida does to effectively limit the legal justification of self-defense for “threat” relative to “use”.)

    This “warning shot” bill should not be required because the courts should not be misreading the already existing Section 776 statutes. But they are, so it is.

    In theory, a truly defensive display of a weapon under the “warning shot” bill would now receive the same protections of justified self-defense as would the firing of a killing shot at the attacker. Of course, the existing law should ALREADY be read that way.

    A large part of the difficulty here lies in the judgment–or misjudgment–of prosecutors and judges. Indeed, at one point in the hearing the committee chair, Senator Evers–who is STRONGLY self-defense and very much in favor of SB 448–noted that the real reason they needed this bill was because they had three–3!–irresponsible prosecutors in the state making these bad calls. If the State could rid themselves of those three, there’d be no issue, and no need for the proposed statute.

    (Re: Sen. Evers being STRONGLY self-defense–at one point in the hearing he commented, as an aside, that “A person with a gun is a citizen; a person without a gun is a victim.”)

    FYI, I now have the video of the excellent Eric Friday of Florida Carry up on my blog (“Eric Friday, Florida Carry, Shines Again in Support of SB 448” http://is.gd/uPeWRE). VIdeo of the other speakers–including Sen. Evers remark just quoted–will follow over the course of the weekend as I get to it.

    –Andrew, @LawSelfDefense

      Lina Inverse in reply to Andrew Branca. | January 11, 2014 at 11:23 am

      Per the 2010 edition of Vilos et. al.’s Self Defense Laws of All 50 States, With “Plain Talk” Summaries, the Kansas courts actually did this sort of thing, all the way up to their supreme court.

      Page 162, the cases are State v. Hendrix, 289 Kan. 859, 218 P.3d 40 (Kan. 2009) and State v. Flint, 2010 WL 445934 (Kan.App. Jan 20, 2010)

      In response, they suggest reading Judge Davis’ dissent in Hendrix if you have access to the cases, and Eugene Volokh’s “If You Brandish a Gun in Self-Defense in Kansas, You’d Best Shoot It”. At the time they didn’t know of any other state with this problem.

      Per their 2013 edition, this was fixed, and retroactively as of the April 2010 date the new law became effective.

      Give them an inch….

      Note to people from outside the general area who might view Kansas as an (ultra-)conservative state: not hardly, until very recently. For example, the prior governor was a party switcher who flipped to run as Kathleen Sebelius’ lieutenant governor (as did the previous lieutenant governor), and became governor when Sebelius became the now infamous Secretary of Health and Human Services. Or see the famously moderate Dwight Eisenhower.

        Great comment, Lina.

        State v. Hendrix is available in full-text at my Law of Self Defense blog: http://is.gd/O7q5Ll

        As is State v. Flint: http://is.gd/eXF6jQ

        A more recent 2012 KS Ct. App. case, State v. Myers (too late, of course, for the Vilos’ 2010 book) also provides a great discussion of these issues: http://is.gd/eLHb1j

        Incidentally, the Vilos’ book is very good, and a desk reference on the shelf above my desk as I write this (albeit I have the more recent edition).

        Although the underlying content of our two books is much the same, of course, they are structured quite differently. In the Vilos’ book, the primary structure is individual state chapters. In contrast, my own book is structured in terms of fundamental principles, with tables summarizing the 50 states’ laws at the end of each chapter

        I like to think the two approaches are complementary. 🙂

        –Andrew, @LawSelfDefense

I’m not crazy about warning shots. I’m a big believer in being responsible for every bullet that you fire and if you’re an idiot and fire up in the air… you’re responsible for any property (or person) damage you cause.

    rantbot in reply to Sanddog. | January 10, 2014 at 9:06 pm

    A legitimate tactical concern; but that doesn’t imply that it should be codified in law.

    Reasoning similar to that behind the Stand Your Ground laws might be appropriate. Those laws don’t require a defender to stand his ground; they leave it as an option, one of a variety of choices. The person on the spot gets to select which response is appropriate in the immediate situation. Rather sensible.

Somehow or other the law has made a pig’s breakfast of what should be a relatively simple concept. Firing a real bullet from a real gun – ie, a warning shot – is considered the use of deadly force, even if the bullet doesn’t hit anyone and isn’t intended to do so. This is absurd; it’s like declaring that driving my car on the street constitutes use of a deadly weapon because if I was driving it on the sidewalk I’d likely run somebody over. True enough, but irrelevant to the normal use of a car on the road. Guns have legitimate non-criminal uses, and it’s not terribly sensible that the law generally doesn’t consider warning shots to be among those uses.

If we reason that use of potentially lethal force for the purposes of halting a potentially lethal attack is legitimate, we have to conclude that guns (and swords, and quarterstaffs, and chainsaws, and whatever-have-you) intended for that purpose are also legitimate, however they are actually used. It’s pure distilled cruelty, of the sort that only officialdom can produce, to require that an attacker actually be shot or otherwise injured to legitimize the use of weaponry for defense.

Warning shots should be discouraged. Only bystanders can be harmed by them. A weapon should only be discharged if you have a target you intend to hit.

The problem with the “10-20-Life” mandatory sentences isn’t the rare exceptions that get trapped in them, it is that cases are in fact different and mandatory sentences intentionally forbid considering the differences.

I understand the rationale: gun crimes are serious, and discretion sometimes results in claims of discrimination by offenders who feel put upon.

But judicial discretion is a good thing, not a bad one. The problem is only bad judges. We are correcting the wrong problem.

Elections matter. Never forget it.

Rick the Curmudgeon | January 11, 2014 at 2:29 am

While I am sympathetic to Ms. Alexander’s predicament, I feel this bill is poor legislation.
Besides the “being responsible for every bullet you launch” theory, you’ve reduced your round count by one that you might need very much in the near future. But more importantly, you’ve just convinced the goblin you’re not serious. Nothing gets their attention like a sucking chest wound while you explain your position.

FYI, I now have video of both the excellent Eric Friday, of Florida Carry, and testimony by Florida Representative Neil Combee, the sponsor of the version of the “warning shot” bill working through the House.

Combee’s testimony addresses issues such as whether a mere verbal threat of defensive force could constitute aggravated assault, and would be covered by the “warning shot” bill, as well as how the “warning shot” bill might apply to Marissa Alexander type scenarios.

VIDEO: On “Warning Shot” Bill, Addresses Verbal Defensive Threats, Marissa Alexander Scenarios (http://is.gd/w0Xwdj)

I see that it’s not really about a “warning shot”. That’s a good thing too. Otherwise Barney Fife would have quite a dilemma.

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