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So-Called “Warning Shot” and “Pop-Tart” Bills Pass Florida House

So-Called “Warning Shot” and “Pop-Tart” Bills Pass Florida House

“Warning-Shot” bill almost certain to pass Florida Senate next week.

http://youtu.be/aedUPmm28cE

On Thursday, March 20, 2104, the Florida House of Representatives voted overwhelmingly (93-24) in approval of HB-89 (the so-called “warning shot” bill), and HB-7029 (the so-called “Pop-Tart” bill).

These developments are reported in the Bradenton Herald, and other news sources (h/t to commenter pjm–thanks!).

The Florida Senate has not yet taken a full vote on its parallel “warning shot” version of the House bill (SB-448), but their bill has easily passed their Criminal Justice committee (5-0), Judiciary committee (9-0), and Rules committee (12-1, and which made some modest changes to conform with the House bill).  The full state senate is scheduled to vote on SB-448 next Wednesday.

We have previously covered this “warning shot” bill in some detail here Florida “Warning Shot” Bill Advances, as well as exploring how a “warning shot” had nothing whatever to do with the Marissa Alexander case (Angela Corey Reminds FL Legislators of Facts of Marissa Alexander Case and The Myth of Marissa Alexander’s “Warning Shot”) and fisking a hilariously error-filled post on the bill by Adam Weinstein over at Gawker (Gawker analyzes Florida’s “Warning Shot” bill, implosion follows).

This local news story is a good example of how the media misunderstands and misreports the nature of the “warning shot” bill:

So-Called “Warning Shot” Bill Never Mentions Phrase “Warning Shot”

It should come as no surprise, of course, to learn that the bill has nothing in particular to do with “warning shots.”  Indeed, neither the phrase “warning shot,” nor the words “warning” or “shot” appear anywhere in the bill.

Rather, the bill–entitled “Threatened Use of Force”–is intended to provide the same kinds of legal justifications to the mere threat of force in lawful self-defense as are offered in the context of the actual use of force in lawful self-defense.  Some prosecutors had apparently argued that the plain text of Florida’s self-defense law provided for legal justification, and freedom from criminal liability, only for the use but not for the mere threat of force.

This bill is intended to clarify this issue.

Effort to Amend Bill to Repeal Stand-Your-Ground Fails

It should also come as no surprise that several urban legislators chose to use this most recent House vote to try to amend the bill so as to repeal Florida’s extremely popular Stand-Your-Ground law.

Under Stand-Your-Ground there is no legal duty to retreat before a crime victim may use deadly force in self-defense if the following conditions are met:  the person is the victim of crime and not the aggressor, (2) the threat is imminent and otherwise unavoidable (other than by retreat), (3) the threat is one of death or grave bodily harm (e.g., rape), and (4) your perceptions and actions were both subjectively and objectively reasonable.

Opponents of “Stand-Your-Ground” Seek Lengthy Prison Sentences for Crime Victims

Opponents to Stand-Your-Ground wish to impose long prison sentences upon crime victims who meet all four of  conditions if those crime victims failed to take advantage of a purportedly safe avenue of retreat before using deadly force in self-defense.  Their “soap box” efforts to repeal Stand-Your-Ground yesterday in the Florida House were, as anticipated, rejected.

A large majority of states–34–are effectively Stand-Your-Ground jurisdictions in that they impose no generalized duty to retreat anywhere a crime victim has a right to be, with Alaska becoming the most recent Stand-Your-Ground state just this past September.  Other states, such as Ohio, have Stand-Your-Ground bills working through their legislatures.  No Stand-Your-Ground state has reverted to a “duty-to-retreat” status in decades, whereas more than a dozen duty-to-retreat states have become Stand-Your-Ground over that same time period.

Florida House Overwhelmingly Passes “Pop-Tart” Bill

Separately , a second gun bill also passed by a large majority (98-17), and this one with little debate.  Termed the “Pop-Tart” bill, HB-7029 would prevent schools from levying punishment on children for playing with simulated guns or wearing clothing that depicts guns.

The bill’s nickname derives from a Maryland incident in which a 7-year-old was suspended from school for purportedly having chewed his Pop-Tart pastry in to the rough outline of a handgun.  This bill attracted support from both gun-friendly Republican legislators as well as Democrats who have been critical of “zero tolerance” policies they believe are unfairly imposed on their constituents children in Florida’s public schools.

Here is the full text of HB-89, the so-called “warning shot” bill:

Here is the full text of HB-78029, the so-called “Pop-Tart” bill:

–-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

While I am not a fan of warning shots in general(because people tend not to actually LOOK where they are shooting, only that they aren’t hitting their intended target), the bill is a good idea.

For reference, if you are going to fire a warning shot, you need to do it into the dirt.

    “if you are going to fire a warning shot, you need to do it into the dirt.”

    Shooting “into the dirt” is no guarantor of a safe discharge. I’ve deliberately skipped rounds underneath “range cars” parked on dirt and hit targets on the other side of the vehicle. Works quite nicely.

    –Andrew, @LawSelfDefense

      Olinser in reply to Andrew Branca. | March 21, 2014 at 10:28 am

      Yes, I specifically said that I’m not a fan of warning shots in general.

      However, even if it richochets off the ground, it is going to lose a significant amount of velocity.

      It’s still not a good thing to do, but it’s infinitely better than just moving your sights off your target and firing a shot.

        “However, even if it richochets off the ground, it is going to lose a significant amount of velocity.”

        Sure.

        And I’ve got letters written to me from people serving long sentences in jail because the remaining velocity was more than sufficient to kill.

        –Andrew, @LawSelfDefense

        Gremlin1974 in reply to Olinser. | March 21, 2014 at 7:35 pm

        Man, this is reality not a John Woo movie and physic’s works. The loss of velocity of a high powered heavy pistol round will leave it with plenty of energy to kill after a single bounce.

    “…if you are going to fire a warning shot, you need to do it into the dirt.”

    More correctly, if you *have* to fire a warning shot, shooting into the ground (not pavement!) is *probably* safer than firing up into the air. In any event, the four qualifications for justified self-defense had better be met before you squeeze the trigger or you’re going to be meeting a lot of expensive people wearing expensive suits over the next few months.

      Gremlin1974 in reply to georgfelis. | March 21, 2014 at 7:36 pm

      If you are a civilian and you fire a warning shot you are probably not justified in firing your weapon at all and are going to Jail.

    I R A Darth Aggie in reply to Olinser. | March 21, 2014 at 11:19 am

    This bill seeks to address the ridiculous situation of a citizen brandishing or otherwise showing a weapon to a would be perpetrator and succeeding in deterring a crime or several, only to find themselves charged with aggravated assault and subject to the 10-20-life law if they used a firearm.

joethefatman | March 21, 2014 at 9:47 am

Nice round up Mr. Branca.

It’s a shame how the Threatened Use of Force of bill has become the warning shot bill. Showing the weapon in an effort to stop a perceived/actual threat is a much better alliterative than having to kill someone.

I also have a problem with the equating of threatening force with a warning shot. If you’ve drawn your weapon and fired a shot, you have effectively already used force.

    joethefatman in reply to joethefatman. | March 21, 2014 at 9:50 am

    Stupid auto correct: alternative not alliterative.

    How the Sam Hill does alternative become alliterative anyway!?!

    I think you have it exactly right. The Alexander case, as the Corey email voluminously details, isn’t a positive example of threatening the use of force to deter violence. I’m glad the law seems to be quite legitimate, which doesn’t surprise me, but I cringe when I see a legislator say he was inspired by the Alexander case. The law is unlikely to help her individually.

As for the Pop Tart bill, what we really need is to take a hard look at the training our principals and school teachers receive. There are too many instances of extraordinarily poor judgment in the handling of children surfacing. They have too much similarity, as well.

    It’s not just training, is it? It’s policies to prevent legal liability and avert the potential loss of federal funding?

    I think it was Thomas Sowell who said that the best way to improve education in America would be to blow up all the Ed schools.

    There might also be something to be said for changing the incentive structure (for example, by firing the idiots who think a kid pointing his finger and saying, “Bang!” should be treated like a criminal).

    bannor in reply to Valerie. | March 21, 2014 at 1:28 pm

    I don’t think all the training in the world can help these people, they’ve proven time and again that they’re simply not up to task of exercising any kind of common sense. Teachers and school administrators are on a fundamental level rule followers they adhere to rules and guidelines like religious dogma, drop them a situation where there is no rule to apply and watch them flounder around. So we’re stuck passing state laws because the people we hire to educate our children don’t have the common sense that God gave a rock. Though what do you expect from people that took a career path that was designed to keep them from ever having to go out into the real world.

    Semper Why in reply to Valerie. | March 21, 2014 at 2:38 pm

    I don’t think these people are getting “training” on how to treat a pop tart as a firearm.

    No, they come by this naturally. They’re trying to ostracize gun ownership and they are starting at an early age. I seems to a certain segment of our educators, guns are bad and everything associated with guns are bad. And that lesson must be imparted to our children early and often.

      ConradCA in reply to Semper Why. | March 21, 2014 at 5:51 pm

      It’s part of the progressive fascist religion. They want to exorcize individual freedom, self reliance and firearms from the minds of the good little progressives they create in school. School is not a church were the faithful (teachers) teach their religion to our nations children.

Henry Hawkins | March 21, 2014 at 10:56 am

In order to fire a warning shot, I’d have to spend time making sure I’m not going to hit someone via direct fire or richochet and that check would have to go far down range. This takes my attention away from the imminent threat that prompts the warning shot in the first place. Not smart.

Taught by my LEO father, I’ve been shooting since 1965. My preferred concealed carry weapon is a 5-shot revolver (.38 Ruger LCR), because I’ve experienced infrequent, yet too many misfires, jams, and safety fumbles with semi-autos. I own them and shoot them, but choose not to carry them for self protection. A warning shot from my revolver would expend one of my five shots. Not smart.

I’m a law-abiding normal feller who does nothing to invite threats of death or grave bodily harm. If a bad guy is nonetheless threatening me, or two or three bad guys, I feel neither a moral nor a tactical duty to fire a warning shot. A warning shot is no guarantee to end the threat in the assumption that the bad guy(s) will then retreat. In fact, he/they may merely take cover and continue the threat from a safer position – and I’ll have wasted 20% of my cylinder. Not smart.

Unable to read the future of possible threat scenarios, I cannot say warning shots are categorically a bad idea, but I can say that diverting my attention away from an immediate threat while I calculate all the variables necessary to determine whether a warning shot is the best next move is not smart.

    The bill is for when you draw you weapon and you are about ready to shoot but you see the attacker(s) freeze, freak out, then leave. You haven’t fired a warning shot you got what you wanted (the attackers to stop) and you don’t have to deal with the psychological impact of having possibly killed someone.

    Under current law you are a criminal and you will probably get 20 years for having saved a (albeit a bad persons) life. This is the perverse incentive that this bill addresses.

The problem with HB-89, is that it equates the threat to use force. in a self defense situation, with the actual use of force. Under existing statute, only the actual use of force has to be justified, based upon the type and degree of threat defended against. Under the existing statutes, it is still possible to argue that threatening to use deadly force, where the actual use of such force is not statutorily justified, is allowable. Under HB-89, the statutes now provide the justification for a threatened use of force, in self defense, BUT, such justification is limited to the same circumstances under which the use of such a level of force is justified. We’ll have to see how this plays out. HB-89 might actually limit the legal threatened use of force and cause more problems than it solves.

My police academy range instructor told us this about warning shots:

“When a 9mm SJHP slug passes thru the center mass of a suspect he will know you are not bluffing.”

heres my opinion, do with it what you will. most ignore me anyways 🙂
do warning shots have a place?
yes with a lot of caveats.
most of the times I read about them they are in city/urban areas. theres almost NO way you can do it w/o endangering someone else.
out where I am I have the room for a round to lose velocity safely. I could SAFELY use a warning shot if I thought it would prevent injury/death to someone.
most people in these situations do NOT have the room.
people are packed too closely together in urban/city areas.
need to make sure you target something that will absorb 100% of the energy.

MouseTheLuckyDog | March 21, 2014 at 7:01 pm

We have the case or Ronald Thompson. An old curmudgeonly exArmy type who was visiting with a neighbor. Her grandson came by with friends and tried to force their way into the house. The woman refused because her daughter told her not to let the grandson in.

Thompson came back with his rifle, fired two warning shots and the son and friends left.

He is one of Corey’s victims.

MouseTheLuckyDog | March 21, 2014 at 7:02 pm

I suspect the safety of firing warning shots depends a lot on the caliber and make of the ammo.

I think we could use some prosecutorial oversight, liability and penalty bills.

Prosecutors have far too much power and control and zero to little real oversight or liability for egregious acts of misconduct and overreach.

They have teamed up with the Police and effectively created a criminal enterprise where to be charged is to be convicted due to the overwhelming threat of being found guilty of something because the evidence has been purposely mishandled, mislaid or hidden from the defense and then having the recommendations for prison time be stretched to the limit.

They have made the process the punishment and there is no one willing to stop them.

TrooperJohnSmith | March 22, 2014 at 11:53 am

The “pop tart” bill is the latest effort to legislate common sense. Instead of doing this incrementally, perhaps we need a law that states something like, “If something makes no sense to three adults, aged 30+, possessed of average intelligence, with little or no education in the “liberal arts”, then said actions, judgments or activities will be determined to be null and void.”

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