Gawker analyzes Florida’s “Warning Shot” bill, implosion follows
Al least they spelled names correctly.
The Washington Free Beacon did a wonderfully humorous job fisking a post at Gawker regarding Florida’s so-called “Warning Shot” law. I previously have explained and debunked many of the myths about the law, Florida “Warning Shot” Bill Advances.
The headline of the WFB piece, written by CJ Ciaramella, captures the gist of the matter succintly: “Gawker Got Literally Everything Wrong About Florida’s New Warning Shots Bill.”
In reading the Gawker article by Adam Weinstein, one can’t help but wonder if the piece wasn’t the product of a bet challenging Weinstein to achieve utter perfection in getting every facet of the subject matter wrong.
From the headline–“The NRA Literally Wrote Florida’s New Bill to Legalize Warning Shots“–forward, about the only correct thing contained in the piece is the spelling of individual names.
Ciaramella thoroughly debunks the core of the Gawker piece — the NRA had, in fact, utterly nothing to do with the writing of Florida’s SB 448/HB 89, the so-called “warning shot” bill. In fact, it was a group concerned about mandatory minimum sentences.
Yet the Gawker piece makes so many more erroneous claims that I thought it would be worthwhile — and an enjoyable use of a snowy Saturday morning in New England — to touch upon some of them here.
Weinstein writes of Marion Hammer (pictured in the featured image, above), a long-time representative of the National Rifle Association:
[Hammer] was instrumental in the state becoming the first to issue across-the-board concealed weapons permits to residents in the ’80s.
For a brief sentence it nevertheless falls shockingly short of clarity. What does it mean, one wonders, to “issue across-the-board concealed weapons permits”?
If the suggestion, however, is that Florida was the first state to allow for shall-issue concealed carry, the claim is laughably incorrect. Policies allowing for concealed carry by law-abiding citizens was effectively in place in at least nine states — Georgia, New Hampshire, Washington, Connecticut, Indiana, Maine, North Dakota, South Dakota, Vermont — long before Florida’s adoption of its own concealed carry process in 1987. Many other states allowed for concealed carry on a discriminatory “may issue,” basis, which effectively denied permits to blacks and anyone else without political influence or great wealth (note that such discriminatory systems remain in place in states like MA, NY, CA, MD, IL, as well as the District of Columbia — all deep blue territory, politically).
Weinstein continues in the next paragraph:
Now, [Hammer]’s put her imprint on a bill that would allow Floridians to openly brandish guns for the first time . . .
This merely evidences ignorance of criminal law and legal justifications.
A legal justification, like self-defense (but also including necessity, duress, etc.) makes what would otherwise be an unlawful act into non-criminal conduct. Deliberately shooting and killing another person is, on its face, murder — unless it was done in lawful self-defense, in which case there is no criminal liability. Spraying someone with pepper spray would be a battery — unless it was done in lawful self-defense, in which case there is no criminal liability. Displaying a gun in a threatening manner would be brandishing–unless it was done in lawful self-defense, in which case there is no liability.
The presence of the legal justification removes criminal liability from what would otherwise be an unlawful act. This has always been the law in Florida, and is the law in every state.
Florida’s so-called “warning shot” law merely clarifies what had already been the common law in the state — that one who threatens another with force in an act of lawful self-defense is free of criminal liability.
That is the state of the law everywhere, including in Florida. The only reason Florida finds itself advancing this “warning shot” bill at all is because a small number of aggressive prosecutors and ill-informed judges have broken with decades of Florida common law and concluded that the justification of self-defense applies to the USE of defensive force, but not the mere THREAT of defensive force.
That application of the state’s “10-20-Life” mandatory minimum sentencing scheme to cases where defensive force is merely threatened has caused concern. Hence as the Free Beacon pointed out, the legislation was pushed not by the NRA but by a group concerned with abuse of mandatory minimum sentences. Having such mandatory minimum sentences in play give prosecutors great power to coerce plea bargains.
Testimony in numerous Florida senate and house meetings makes clear that such an interpretation of Florida’s self-defense laws was aberrant, and this application of “10-20-Life” to defensive force situations was never the intent of the statute.
That is why this “warning shot” bill effectively does nothing more than replace each reference of Florida’s self-defense statutes to “use of force” with the phrase “use or threatened use of force.” That’s it–that’s all the bill does, is to clarify that Florida’s self-defense laws provide legal justification for the mere threat, as well as the actual use, of force in self defense.
But Weinstein’s sentence continues, introducing more nonsense as it goes:
. . . and could lead to more permissive open-carry laws or lighter requirements for licensing in the future.
As noted above, Florida’s “warning shot” bill merely replaces “use of force” with the phrase “use or threat of force” through Florida’s self-defense statutes. It says absolute nothing–nothing!–about more permissive open-carry laws, nor lighter requirements for licensing in the future.
But let’s move on. Weinstein continues in the next paragraph:
The current bill would amend the state’s expansive Stand Your Ground law—which permits residents to use deadly force in numerous circumstances—so that it also allows the nebulous “threatened use of force.
Stand-Your-Ground does absolutely nothing to increase the circumstances in which deadly force can be used — you must still be an innocent party reasonably perceiving an imminent threat of death or grave bodily harm.
Stand Your Ground laws merely allow that if you’re a woman being raped, or an elderly citizen being beat down by a gang of thugs, and you are compelled to use deadly force in self-defense, you will not later be denied the right to argue self-defense in court based on a claim that you could instead have safely escaped the attack.
That’s it. Stand-Your-Ground does not allow anyone to “shoot first, ask questions later,” it does not allow one to use deadly force against a non-deadly threat, it does not allow one to use deadly force merely because of subjective fright.
Incidentally, Stand-Your-Ground is the state of the law in the large majority of states — 34 of them, if one counts case-by-case Wyoming. Only a minority of states impose a generalized duty to retreat before one can use deadly force in self-defense.
In addition, there is nothing nebulous in the law about the concept of “threatened use of force,” at least no more so than any other concept in criminal law. Weinstein continues:
In effect, it means that gun owners could walk free for brandishing their gun in a threatening manner or firing a shot indiscriminately to “warn” a potential assailant.
Indeed, because if this conduct was done in lawful self-defense, it is not a crime, as already discussed. Surely Weinstein does not believe that people should be prevented from “walking free” if their conduct is lawful?
But let us move along, because the hits keep on coming:
That also means gun owners would get blanket immunity from the state’s “10-20-life” law, which mandates an automatic 10-year sentence for anyone accused of flashing or using a gun in the commission of a felony.
No immunity is provided for in Florida’s “warning shot” bill. The change to the bill would merely mean that “10-20-Life” would not be applicable in cases of threatened force in lawful self-defense — because the underlying conduct would not be a crime.
Given that the threat of force in lawful self-defense is not a crime, it naturally follows that “10-20-Life” would not apply, just as “10-20-Life” does not apply to other non-crimes. Again, not a difficult concept.
The next paragraph:
But in this case, the NRA wants to do away with a gun law [“10-20-Life”] that’s been on the books for nearly 15 years–a law that it helped pass.
Florida’s “warning shot” bill does nothing — absolutely nothing – -to any facet of the state’s “10-20-Life” law. It doesn’t change so much as a single word of that statute. Not only it is not being “done away with,” it remains utterly unchanged by the “warning shot” bill.
It is true, as Weintstein notes that:
So far, the warning shot bill appears destined for passage. It has sailed through every committee that’s reviewed it in the largely Republican-led Legislature, gaining 42 House co-sponsors, including 11 Democrats.
Other than that, the Gawker article about the “warning shot” bill completely misfires.
–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
Andrew, do you want to speculate as to why Mr. Weinstein committed such gross journalistic malpractice?
My guess is that it is aimed at people who don’t understand the issue, esp in the gun grabbing community. I think that we have seen this a lot in the past – for example all of the knowing misrepresentation in the George Zimmerman self-defense case, where the MSM intentionally distorted the facts, and then a year later, were being essentially cited as definitive. So, the MSM meme may ultimately be that Florida is the wild west now, where everyone can shoot into the air anytime they want with impunity. Or at least use warning shots in self-defense.
because he’s an a**hole.
yep, the proggie elites know well how to manipulate their legion of proggie drones. tell The Big Lies, and repeat the little lies often. that is really about all it takes.
Momma always told me, if I don’t have anything nice to say . . .
Plus, I’m feeling charitable tonight. Firewood’s cut, soup is on, it’s after 5 o’clock (even here) . . .
–Andrew, @LawSelfDefense
Because he doesn’t care about truth. His article is aimed at the low-information voter – the person too ignorant to know the truth, and too lazy to care enough to find out the truth.
They will read his article and be mad about the gun-toting rednecks destroying the law in their state.
His mission is accomplished.
This has always been a problem with morons who write about guns and the laws concerning them.
They seldom, if EVER, know the first thing about a firearm, and are equally as ignorant about the law.
They are afraid of learning about either, as well, since both are ready subjects for gaining at least SOME expertise, and they staunchly refuse to dispel their awful stupid.
I put it down to the religion of Collectivism.
After that, I’d have expected you to get Marion Hammer’s name right.
Touche. 🙂
Still, I’d rather make my mistakes in the spelling of a name than in the law.
Stakes are considerably higher with the latter.
–Andrew, @LawSelfDefense
Illinois is shall-issue, not may-issue, despite what Sheriff Dart might think. We’ll be seeing permits in the mail sometime in February.
After reading the above post. One would think that a warning shot is preferable than the use of extreme prejudice in protecting one’s life…or am I missing something?
A “miss” or a “warning shot” could often be different labels for exactly the same ballistic event. And although that label makes no difference at all to the bullet, or to the “target” which wasn’t actually hit by anything, some major legal repercussions may follow.
A warning shot and a miss are not the same thing, even though the results, the unintended injury or death of an innocent person may be the result. the latter is simply an unintended consequence of a legally justified action, while the former is can be a reckless endangerment of the general public.
The current bill, under discussion, may well authorize warning shots, as such can be accurately described as a “warning” to cease and desist from an action or impending action. This will likely end up in the courts for clarification. Also, the wording of the current bill does does not authorize the threatened use of deadly force, unless deadly force is authorized. It is, essentially unnecessary, as common law allows for a much broader application of defensive use of the threat of force.
As to the current state of warning shot and threat of use of defensive force legality, in Florida, it is usually decided on a case by case basis. And, it is usually decided correctly, based upon the legality of using defense force to begin with. It became part of the original bill only because those who wished to exempt people, who unlawfully threatened the use of deadly force, from being subject to the 10-20-Life provisions of the statutes needed a reason for the change. Now that 10-20-Life is off the table, the bill does little for anyone. But, because of the media situation, with regard to certain high profile cases in the state, some legislation will be passed and this is relatively innocuous.
I must confess I find it a little difficult to follow your post, but one thing struck me: You write that “Now that “10-20-Life” is off the table . . . ”
In what context is “10-20-Life” off the table? I’m not aware that there’s been any change made to “10-20-Life” whatever.
–Andrew, @LawSelfDefense
HB89 was amended in committee to eliminate any changes to the statutes governing the 10-20-Life sentencing. And, SB448 mirrors CS/HB89. Originally HB89 contained language that would have modified the sentencing statutes to eliminate a mandatory sentence of 10-20-Life if a person convicted of a crime with a firearms claimed they acted in self defense. That was eliminated in committee in the Florida House and the Senate bill was drafted to mirror the committee substitute bill in the House.
The original purpose of the bill was not to clarify statutory language with regard to the use of force, but to exempt from people who use force improperly from the mandatory sentencing requirements under the 10-20-Life statute. The claimed loopholes in the use of force statutes were used to open the door for a change in the mandatory sentencing law. The legislature addressed to claimed problem and eliminated an change to the 10-20-Life statute, much as they did in the open carry bill presented in 2011.
Ah, many thanks for the knowledgeable reply, I much appreciate it.
Obviously you have considerable insight to the bill and it’s legislative history. Might I ask your particular role vis a vis the bill?
It’s the internets, and I understand if you choose to demur, just curious if you’re willing to share.
–Andrew, @LawSelfDefense
I struggle to imagine circumstances in which I would personally feel a warning shot would be appropriate.
Maybe if I observed a woman being raped at some distance beyond the practical range of my handgun, in a generally uninhabited area, say deep-woods, perhaps a warning shot into a stout tree would induce the rapist(s) to cease their attack? It would really need to be some scenario that bizarre.
I suppose I just feel that if it’s come to the point where I’m pointing my gun at an attacker, engaging them with strongly communicated verbal commands, that’s either going to deter them or it’s not. I sure hope the former. But if the muzzle of a 45 held with confidence doesn’t deter an attacker I’m not sure what a warning shot is going to do for me.
Of course, in such a scenario one must presume that escape is not possible (or I would already have taken advantage of that opportunity), that AOJ has already been met (or the weapon would not have been drawn), and that the attacker is sufficiently determined that he is willing to walk into a gun. I’m pretty sure those facts would be sufficient to support an articulable reasonable fear of death or grave bodily harm.
–Andrew, @LawSelfDefense
A warning shot is a waste of a round I may desperately need before the incident is over.
Want to look at an idiot? Here’s the author of the Gawker nonsense, Adam:
http://www.mediabistro.com/fishbowldc/files/2012/06/adamw21-300×278.jpg