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.

Gawker NRA Florida Warning Shot

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, (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.


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